A. VOIPSTRA is a supplier of telecommunications and Internet Protocol based services.
B. The Customer wishes to acquire from VOIPSTRA and VOIPSTRA has agreed to supply telecommunications services to the Customer on the terms set out in this Agreement.
C. VOIPSTRA means VOIPSTRA Pty Ltd.
- THE AGREEMENT
- In the event of any inconsistency, and to the extent of such inconsistency between any of the documents forming part of this Agreement, this Agreement shall be read and construed in the following order of precedence:
(a) Service Schedules;
(b) the Application for Service;
(c) this VOIPSTRA Customer Service Agreement; and
(d) any other document incorporated by reference in this Agreement or agreed in writing by the parties.
- SCOPE OF AGREEMENT
- VOIPSTRA will provide and the Customer accepts the Services on the terms and conditions set out in this Agreement.
- VOIPSTRA will use reasonable endeavours to meet the Service Levels for the relevant Service but does not guarantee that the Service Levels will be met.
- Subject to clause 2.4, if VOIPSTRA fails to achieve the relevant Service Levels in any one month, the Customer will be entitled to a rebate calculated in accordance with the relevant Service Levels (a "Service Level Rebate").
- Notwithstanding any other provision of this Agreement, the Customer will not be entitled to a Service Level Rebate where VOIPSTRA's failure to achieve the relevant Service Levels is caused directly or indirectly by, or arises from or in connection with:
(a) an event of Force Majeure;
(b) a Planned Outage;
(c) the exercise of VOIPSTRA's right to suspend the Services pursuant to clause 10.4(d);
(d) a breach by the Customer of this Agreement;
(e) any fault in the Equipment caused by the misuse or negligence of the Customer.
- The Customer agrees that, to the extent permitted by law, any Service Level Rebate payable by VOIPSTRA to the Customer will be the sole remedy available to the Customer in respect of the event giving rise to the entitlement to a Service Level Rebate.
- The Customer may cancel an Application for Service within 3 Business Days of receipt of VOIPSTRA's notice of acceptance of the Application for Service if:
(a) VOIPSTRA's Ready for Service Date is more than 90 Business Days after the Customer's requested delivery date specified in the Application for Service; or
(b) VOIPSTRA cannot give the Customer a Ready for Service Date.
For the avoidance of doubt, if the Customer cancels an Application for Service pursuant to this clause 2.6, the Customer must pay to VOIPSTRA an amount equal to the direct costs incurred by VOIPSTRA in connection with the installation of the Customer's Service (including the acquisition of third party equipment/services) up to and including the date of VOIPSTRA's receipt of the Customer's cancellation notice given in accordance with this clause 2.6.
- VOIPSTRA will provide the Services to the Service Delivery Points and the Customer is responsible, at its own expense, for arranging the installation and maintenance of the relevant equipment and cabling from the Service Delivery Points.
- Where the Customer requests a variation to a Service, the request must be in writing. VOIPSTRA will be under no obligation to vary the Service unless and until it accepts such written request.
- If, on the Ready for Service Date, VOIPSTRA is unable to provide the Service in accordance with the Relevant Service Level, the Customer will be entitled to a Service Level Rebate subject to:
(a) the restrictions contained in clause 2.4; and
(b) the satisfaction of any other condition precedent that is outside the control of VOIPSTRA to the delivery of the Service on the Ready for Service Date.
- Each Application for Service signed by the Customer will form a separate Contract for the supply and acquisition of the relevant Service on the terms of this VOIPSTRA Customer Service Agreement and the relevant Service Schedules, which are incorporated into each Contract.
- Each Contract will commence on the Contract Commencement Date and continue, subject to the rights of early termination contained in this Agreement, for the Minimum Term.
- Upon the Expiry of the Minimum Term, each Contract shall automatically renew for a further term, equivalent in duration to the Minimum Term (the "Further Term") unless prior to the expiration of the Minimum Term, either party by notice elects to terminate the Contract at the expiry of the Minimum Term.
- The Contract for any Further Term shall be on VOIPSTRA's then current terms and conditions.
- Subject to the terms of the Application for Service or other agreement in writing to the contrary between the parties, the Charges payable under the Contract by the Customer shall be at VOIPSTRA's then Current Rates, as amended from time to time and published on the Website.
- CHARGES & BILLING
- The Customer will pay to VOIPSTRA the Charges in accordance with clause 5 of this VOIPSTRA Customer Service Agreement.
- Subject to clause 8, the Customer agrees that:
(a) the Services set out in the relevant Invoice were supplied to the Customer; and
(b) the Charges set out in the relevant Invoice are accurate (absent manifest error) and are payable by the Customer.
- VOIPSTRA will use reasonable endeavours to invoice the Customer monthly but, in accordance with the terms of ACIF Code C542B, VOIPSTRA reserves the right to invoice the Customer at any time up to 190 days after the relevant Charges were incurred.
- The Customer will be liable for all Charges whether or not it authorised the particular use of the Services by another person.
- VOIPSTRA shall be entitled to set off in whole or in part any amounts due and payable by VOIPSTRA to the Customer, against the whole or a proportionate part of any amount due and payable by the Customer to VOIPSTRA under this Agreement.
- VOIPSTRA reserves the right to withdraw discounts that the Customer receives from VOIPSTRA in connection with the supply of Services where payment is not received in accordance with the terms of Clause 5.
- The Customer agrees and acknowledges that VOIPSTRA may pass on any increases or special/once-off third party charges to VOIPSTRA (including charges for connection, initiation or cancellation of a Service) without notice to you where such charges relate directly to the provision of the Services by VOIPSTRA to the Customer.
- VOIPSTRA reserves the Right to invoice the Customer in advance or in arrears for the Services.
- Subject to clause 8, the Customer will automatically make payment in respect of each Invoice using VOIPSTRA’s nominated Direct Debit agent to deduct funds from the Customer’s nominated bank account or credit card as set out in the Application for Service. VOIPSTRA will deduct the total amount of the invoice from the Customer’s nominated account between 7 and 14 days from the date of invoice.
(a) Payment will be in full and without deducting, withholding, setting off or counter claiming any amount or attaching any condition to the payment unless both parties agree otherwise in writing.
(b) The Customer is to bear all collection costs or fees associated with making the payment including but not limited to bank fees and merchant charges.
- VOIPSTRA is taken to have received a payment from the Customer:
(a) where it is made by electronic transfer, on the date of deposit shown in VOIPSTRA's bank account statement; and
- VOIPSTRA reserves the right to charge interest on any part of the charges or GST not paid to VOIPSTRA by the due date. Interest will be charged from the due date until payment at a rate equal to 3% above the Commonwealth Bank Corporate Overdraft Reference Rate or such other comparable rate chosen by VOIPSTRA most recently published before that date. The Customer will be liable to pay VOIPSTRA all expenses (including legal costs and expenses and the fees of VOIPSTRA's debt recovery agents) incurred by VOIPSTRA in relation
to recovering payments due under this Agreement.
- VOIPSTRA may calculate interest daily and capitalise interest monthly.
- VOIPSTRA will allocate payments from the Customer in accordance with the advice of the Customer at the time of payment. Failing receipt of that advice, VOIPSTRA may, subject to the prior issue of an Invoice, allocate that payment to any outstanding amount payable by the Customer to VOIPSTRA.
- The Customer will:
(a) provide VOIPSTRA with the Security;
(b) continue to provide and maintain the value of the Security at its cost and comply with its terms; and
(c) to the extent the Security is provided by a third party, use best endeavours to ensure that the other person continues to provide and maintain the value of the Security and complies with its terms.
- At any time during the term of this Agreement VOIPSTRA may require additional security where:
(a) the net capital value of the Customer decreases by more than 5% from the previous month;
(b) the Customer's monthly billing in respect of a Contract increases by more than 10% from the lower of (1) the monthly billing contemplated at the date of the relevant Contract and (2) the Customer's previous month's Invoice;
(c) where the Customer has failed to comply strictly with the payment terms set out in this Agreement; or
(d) the Security is called on or enforced or its value otherwise falls by 10% or more compared to its value at the same time in the previous month.
- If VOIPSTRA so requires additional Security, the Customer will provide Security within 20 Business Days of VOIPSTRA's request having a value which is equivalent to the amount VOIPSTRA reasonably believes is necessary to secure the increase in VOIPSTRA's exposure having regard to the basis on which the amount of Security was originally calculated by VOIPSTRA.
- The Customer agrees, within 10 Business Days of VOIPSTRA's request, to provide to VOIPSTRA, or any independent person nominated by VOIPSTRA, any information reasonably required by VOIPSTRA to confirm the credit-worthiness of the Customer including, without limitation, the Customer's Financial Accounts.
- Subject to VOIPSTRA's obligations under the Privacy Act 1988 and the Telecommunications Act 1997 and solely for the purpose of enabling VOIPSTRA to assess the Customer's credit-worthiness, the Customer consents to VOIPSTRA disclosing to a credit reporting agency personal information relating to the Customer including, without limitation, the Customer's name and address, details of the Customer's Application for Services and the Customer's Financial Accounts.
- BILLING DISPUTES
- If, after considering all information available to it, the Customer reasonably believes that it is not liable to pay Charges in an Invoice because there is a Billing Dispute, the Customer may start the Billing Disputes Procedure by delivering a Billing Dispute Notice to VOIPSTRA as contemplated by the Billing Disputes Procedure.
- The Customer may not commence proceedings in any court or tribunal to resolve the Billing Dispute except to the extent allowed in this Agreement.
- If the Customer starts the Billing Disputes Procedure, VOIPSTRA and the Customer must comply with the Billing Disputes Procedure.
- Where the Billing Dispute Procedure determines that the Customer must make payment of disputed Charges, the Customer will within 5 Business Days of the date of the determination pay such amount together with interest calculated in accordance with clause 5.3 of the Agreement.
- Where the Billing Dispute Procedure determines that VOIPSTRA must withdraw the disputed Charge or refund a disputed Charge previously paid, VOIPSTRA will, within 5 Business Days of the determination issue a corrected Invoice (which the Customer shall pay in accordance with clause 5) or adjustment note as appropriate and reimburse any disputed amount already paid by the Customer together with interest calculated on a daily basis from the date payment was received by VOIPSTRA until reimbursed to the Customer, at a rate equal
to 3% above the Commonwealth Bank Corporate Overdraft Reference Rate or such other comparable rate chosen by VOIPSTRA most recently published before that date.
- Where the Billing Dispute Procedure determines that VOIPSTRA must provide further billing or other information, VOIPSTRA will provide that information as soon as practicable having regard to the details of the particular dispute.
- GENERAL DISPUTES
- The parties will seek to resolve any dispute which is not covered by clause 8 in accordance with this clause 9 and will not start court or arbitration proceedings except as allowed under this clause 9 or except to seek urgent interlocutory relief.
- The procedure for resolving a dispute is:
(a) first a Party may give notice to the other Party about the nature of the dispute ("Dispute Notice") and the parties will seek to negotiate a settlement within 10 Business Days of receipt of the Dispute Notice ("Negotiation Period");
(b) secondly, to the extent that the negotiations fail to settle the matter within the Negotiation Period, the parties will seek, within a further 10 Business Days, or such longer period as agreed by the parties, to reach Agreement on:
A. a non-litigation, non-arbitration procedure for resolving dispute (such as mediation, reconciliation or independent expert determination);
B. the steps to be taken and when; and
C. the identity of any independent person who will assist the parties and the terms on which that person is to be retained (including the basis on which the independent party's costs are to be paid and by whom); and
(c) thirdly, if the parties are unable to reach agreement under clause 9.2(b) within the required timeframe or they do reach agreement and the agreed procedure does not culminate in a settlement of the entire dispute within 20 Business Days of the date of the Dispute Notice, either Party may then commence court or arbitration proceedings to resolve remaining issues.
- The parties will engage in the procedure in clause 9.2(a) and 9.2(b) in good faith and on a without prejudice basis.
- SUSPENSION OF SERVICES & TERMINATION
- VOIPSTRA may without liability terminate this Agreement and all or any Contract, with immediate effect from the date of delivery of a notice to the Customer (or with effect from such later date as VOIPSTRA may nominate in such notice), if:
(a) a Competition Notice which affects the subject matter of this Agreement is issued or a Regulator or court determines that any part of this Agreement contravenes the Telecommunications Act 1997 or the Trade Practices Act 1974;
(b) the holder of an encumbrance granted by the Customer takes possession of the whole or a substantial part of the assets and undertaking of the Customer or it enters into a formal or informal compromise with its creditors;
(c) the Customer fails to comply with a statutory demand under the Corporations Law;
(d) the Customer has failed to provide a consent or information under clause 7 within the required time; or
(e) the Customer is in breach of its obligations under clause 6 of this Agreement.
- VOIPSTRA may without liability terminate this Agreement and/or all or any Contract, with immediate effect (or with effect from such later date as VOIPSTRA may nominate), if the Customer has failed to make a payment by the due date, except to the extent that such amount is permitted to be withheld pursuant to the Billing Dispute Procedures, and the Customer fails to make such payment within 5 Business Days of receipt of a notice requiring it to do so.
- Either Party ("Affected Party") may without liability terminate this Agreement and all or any Contract, with immediate effect from the date of service of a notice (or with effect from such later date as the Affected Party may nominate in such notice), if:
(a) the other Party ("First Party") breaches a material obligation under this Agreement, which materially impairs the Affected Party's ability to provide carriage services to its customers and the First Party fails to institute remedial action as required by a notice from the Affected Party within 20 Business Days of receipt of such notice;
(b) the Parties are unable to agree to amendments to this Agreement within 10 Business Days (or such longer period as may be agreed by the Parties) of a directive from a Regulator;
(c) an order is made or a resolution is passed for the winding up or dissolution (other than for solvent reconstruction or amalgamation) of the First Party;
(d) an Insolvency Administrator is appointed to the First Party or in respect of the whole or a substantial part of its assets and undertaking;
(e) the First Party is unable to pay its debts as and when they fall due; or
(f) Force Majeure substantially adversely affects the ability of a Party to perform its obligations (other than an obligation to pay money) under this Agreement continuously for a period of not less than 15 Business Days.
- VOIPSTRA may without liability and with immediate effect suspend the Services under the relevant Contract for as long as VOIPSTRA, acting reasonably, considers necessary:
(a) to perform necessary maintenance or other service work in connection with a Planned Outage;
(b) to perform emergency maintenance work provided that the need for carrying out such work does not arise as a result of the negligent or unlawful acts or omissions of VOIPSTRA;
(c) in order to enable VOIPSTRA to comply with any law, protect any person, equipment, or VOIPSTRA's network or to enable authorised persons to attend to any emergency; or
(d) in addition to (and without limiting) any right VOIPSTRA may have to terminate those Services.
- If VOIPSTRA suspends the Services pursuant to clause 10.4(d), the Customer acknowledges and agrees that:
(a) VOIPSTRA may charge the Customer a re-connection fee;
(b) while the Services are suspended, VOIPSTRA will continue to incur costs of supply associated with keeping those Services in a suspended state; and
(c) except in the case of Usage Based Charges, all Charges in relation to the Services will continue to accrue while suspended and will be payable by the Customer,
(d) provided that the Customer will not be liable under clause 10.5(a) or 1.1(a) if VOIPSTRA exercises its right of suspension by reason of the occurrence of any of the events set out in clauses 10.1(a), 10.3(b) or 10.3(f).
- The Customer is entitled to terminate a Contract at any time prior to expiry of the Minimum Term by paying to VOIPSTRA an amount calculated by multiplying the Recurring Charge payable by the Customer under the relevant Contract by the remaining months (or part thereof) of the Minimum Term.
- If VOIPSTRA elects to exercise any right to terminate a Contract during the Minimum Term pursuant to this clause 10 (but excluding clauses 10.1(a), 10.3(b) and 10.3(f)), the Customer must pay to VOIPSTRA, by way of liquidated damages, the fee referred to in clause 10.6, which the parties acknowledge is a genuine pre-estimate of the losses which VOIPSTRA will suffer as a result of early termination of that Contract. This clause 10.7 does not otherwise limit the Customer's liability to VOIPSTRA upon termination.
- On termination of this Agreement and/or any Contract for any reason, all Charges (including the fee referred to in clauses 10.6 and 10.7) payable under this Agreement, or the relevant Contract as the case may be, shall become immediately due and payable.
- Termination or expiry of this Agreement and/or any Contract shall be without prejudice to the continued effectiveness of all provisions in this Agreement which, by their nature, survive termination or expiration.
- CUSTOMER'S OBLIGATIONS
- The Customer must comply with any reasonable instructions of VOIPSTRA, and provide all information and assistance reasonably required by VOIPSTRA, in order to enable VOIPSTRA to:
(a) comply with its obligations under this Agreement and each Contract;
(b) comply with any obligations under any law relating to the supply of telecommunication services;
(c) comply with any request or direction of a Regulator;
(d) comply with any request or direction of a government agency, emergency services organisation or other competent authority for reasons of health, safety or the quality of the Services;
(e) comply with all applicable national, state and local disaster and emergency management plans; and
(f) comply with the Acceptable Use Policy.
- The Customer agrees:
(a) to grant VOIPSTRA full and free access to its network, information and records to the extent reasonably required for the purposes of remedying Service faults in an emergency;
(b) to comply with all laws; and
(c) to comply with all applicable national, state and local disaster and emergency management plans.
- The parties will meet as soon as practicable and negotiate in good faith such amendments to this Agreement as are necessary or appropriate to ensure this Agreement does not and will not require either party to breach any such law, condition, directive, standard, code or Competition Notice.
- Subject to clause 12.2, the Charges set out in this Agreement are inclusive of all state and commonwealth taxes, with the exception of GST and any stamp or transaction duty on this Agreement and any related interest, expense, fine, penalty or other charge relating to these taxes, which must be paid by the Customer.
- If any Tax is increased or newly imposed ("Additional Tax") in relation to a Service then VOIPSTRA may, by notice to the Customer, increase the then current Charge for the Service ("Base Charge") so that, on payment of the Charges, VOIPSTRA receives the amount it would have received but for the Additional Tax.
- Clause 12.2 applies regardless of anything else in this Agreement but does not apply to GST or any Taxes in the nature of a tax on wealth, capital gains or income.
- In addition to each of the Charges, at the time of invoicing, VOIPSTRA may charge the Customer (and the Customer shall pay) an additional amount equal to the amount of GST payable in connection with any supply made by VOIPSTRA to which the Charge relates. Where GST is charged, VOIPSTRA will provide a tax invoice, which will enable the Customer, where permitted, to claim a credit or refund of GST. The Customer shall pay any GST included on an Invoice in accordance with clause 5.
- Where, in relation to the supply of the Services to the Customer, VOIPSTRA becomes liable to any penalties or interest as a result of the late payment of GST or any stamp or transaction duty, due to the Customer's failure to comply with the terms of this Agreement or the Customer's obligations under the GST law, then the Customer must pay an additional amount equal to those penalties and interest to VOIPSTRA.
- Should the GST amount recovered by VOIPSTRA from the Customer in connection with any supply made differ from the GST liability either due to an amendment in the GST law or an adjustment to the consideration under this Agreement, VOIPSTRA will provide an adjustment note within 10 Business Days of the date of the event.
- OFFENCES & INDEMNITIES
- The Customer will not use and must use best endeavours to ensure that others do not use the Services:
(a) to distribute material that is defamatory, offensive, abusive, obscene, menacing, threatening, harassing, or illegal under any law at any place where transmissions are sent from, viewed or received;
(b) to copy or distribute material where it has no right to do so (for example, someone else's copyrighted works or confidential information);
(c) to commit a crime or in the course of committing a crime;
(d) for an unlawful purpose;
(e) to do any act that may damage the network or systems or cause the quality of the Service to be impaired;
(f) to engage in any activities in such a manner as to expose VOIPSTRA to liability;
(g) to do any act that may damage the network or systems or cause the quality of the Services to be impaired; or
(h) in a manner that does not comply with the terms of any legislation or licence applicable to the Customer or that does not comply with any instructions given by VOIPSTRA under clause 11.1.
- The Customer will indemnify VOIPSTRA against:
(a) all Loss (including consequential and indirect loss or damage) incurred by VOIPSTRA as a result of the Customer's breach of clause 13.1;
(b) all Loss (including consequential and indirect loss or damage) incurred by VOIPSTRA as a result of a claim against it arising out of a death of or personal injury to a Representative of VOIPSTRA, to the extent that such Loss is caused by a negligent or wilful act or omission of the Customer or any of its Representatives;
(c) all Loss (including consequential and indirect loss or damage) incurred by VOIPSTRA as a result of any damage to or loss of any equipment, network or other tangible property of VOIPSTRA or any third party to the extent that such Loss is caused by a negligent or wilful act or omission of the Customer or any of its Representatives;
(d) all Loss directly and reasonably incurred in relation to making good any damage to or loss of equipment, facilities, network, or other tangible property of VOIPSTRA to the extent that such Loss is caused by any act or omission of the Customer or any of its Representatives;
(e) all Loss (including consequential and indirect loss or damage) arising directly from or in connection with a claim by a third party against VOIPSTRA to the extent that the claim relates to any negligent or wilful act or omission of the Customer or any of its Representatives in relation to this Agreement.
- The Customer is not obliged to indemnify VOIPSTRA under this clause 13 to the extent that the liability the subject of the indemnity claim is the direct result of a breach of this Agreement, or a negligent act or omission, by VOIPSTRA.
- VOIPSTRA must take all reasonable steps to minimise the Loss it has suffered or is likely to suffer as a result of the event giving rise to an indemnity under this clause 13. If VOIPSTRA does not take reasonable steps to minimise such Loss then the damages payable by the Customer will be reduced as is appropriate in each case.
- LIMITATION OF LIABILITY
- Except as expressly provided to the contrary in this Agreement and to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Services supplied under this Agreement or either Party's obligations under this Agreement are excluded.
- Where any Act of Parliament implies in this Agreement any term, and that Act of Parliament voids or prohibits provisions under a contract which exclude or modify the operation of such term, the term is deemed to be included in this Agreement.
- To the extent permitted by law, VOIPSTRA's liability for breach of any condition or warranty implied by law which cannot lawfully be excluded, whether in contract, negligence (or any other tort), under any statute or otherwise, is limited to one of the following remedies at VOIPSTRA's discretion:
(a) if the breach relates to services, the resupply of the Services or the payment of the cost of resupplying the Services; or
(b) if the breach relates to goods, the replacement of the goods, the supply of equivalent goods, the payment of the cost of such replacement, the repair of such goods or the cost of such repair.
- Except as otherwise expressly provided in this Agreement and to the extent permitted by law, a Party has no liability to the other Party in connection with this Agreement for or in respect of any consequential loss, indirect loss, loss of profits of any kind, loss or corruption of data, interruption to business, loss of revenue and economic loss of any kind, whether in contract, negligence or any other tort under any statute or otherwise.
- To the extent permitted by law, the aggregate liability of a Party to the other Party at any time ("Relevant Time") in respect of all claims, whether in contract, negligence or any other tort, under any statute or otherwise:
(a) in any 12 month period ending on the day before an anniversary of the date of last execution of this Agreement; or
(b) in a period of less than 12 months from the date of execution of this Agreement or an anniversary of the date of execution of this Agreement to the date of termination of this Agreement,
(c) will not in any circumstances exceed a liability cap ("Liability Cap"), being the greater of:
(d) the aggregate amount paid or payable by the Customer to VOIPSTRA under this Agreement during the financial year which ended immediately prior to the Relevant Time (if any); and
(e) $2 million.
- The Liability Cap will not apply to any obligation of the Customer under this Agreement to pay Charges for Services or to liability under clause 13.
- A Party's liability to the other party for Loss of any kind arising out of this Agreement or in connection with the relationship established by it is reduced to the extent (if any) that the other Party causes or contributes to the Loss. This reduction applies whether the first Party's liability is in contract, tort (including negligence), under any statute or otherwise.
- AUTHORISATION & ACKNOWLEDGEMENTS
- Customer Equipment: The Customer must ensure that any equipment that it uses in connection with the Services:
(a) has all necessary regulatory approvals;
(b) is not prohibited by the Australian Communications Authority ("ACA");
(c) complies with all applicable regulatory standards;
(d) is approved by VOIPSTRA;
(e) is operated safely and avoids interference with the VOIPSTRA network; and
(f) is capable of operating with the Services.
If there are faults with the Customer's equipment causing interference with the Services, VOIPSTRA may require the Customer to stop using and disconnect the equipment until the problem is fixed.
- Installation of Equipment: The Customer will assist VOIPSTRA to ensure that any Equipment necessary for the Customer to receive the Services and access VOIPSTRA's network is installed and programmed so that calls to destinations nominated by VOIPSTRA from time to time are, so far as possible, carried by VOIPSTRA's switched services network.
- PABX Authorisation: The Customer authorises VOIPSTRA or its agents to disconnect, install or make amendments to any autodiallers or PABX programming at the Access Site in order for VOIPSTRA to provide the Services.
- Customer Supply: The Customer will provide:
(a) a suitable physical environment at the Access Site for the storage and operation of the Equipment including supplying an adequate power supply for the operation of the Equipment; and
(b) in respect of Services involving the supply of a CPE Router, the Customer must at its cost, provide for each router, a dedicated analogue telephone line for the purpose of alternate and redundant management access to the relevant router.
(c) Access: The Customer will ensure that VOIPSTRA is provided with such access to the Equipment and Customer premises during normal business hours as VOIPSTRA may request and at such other times as the Customer and VOIPSTRA mutually agree. This right of access will not end until all the Equipment is returned to VOIPSTRA, even if this Agreement has terminated. After termination of this Agreement, the Customer must allow VOIPSTRA to retake possession of the Equipment. The Customer must ensure that VOIPSTRA's personnel are provided with a safe working environment while at the Customers
Premises. VOIPSTRA will ensure that its personnel comply with the Customers reasonable directions while on the Customers Premises.
- Property: Except as expressly provided by this Agreement:
(a) the Equipment always remains the property of VOIPSTRA;
(b) the Customer will ensure that, it has all necessary consents and approvals (including landlord approval where applicable) necessary or desirable for VOIPSTRA to deliver, install and maintain the Equipment at the Customers premises; and
(c) the Customer will not part with possession of the Equipment except to VOIPSTRA and will comply with all reasonable directions of VOIPSTRA relating to VOIPSTRA's rights of ownership of the Equipment
- Change of Equipment: Upon providing the Customer with as much notice as is reasonably practicable in the circumstances, VOIPSTRA may at any time and from time to time change, modify or service the Equipment provided that such modification or repair does not adversely affect the quality of the Service.
- Interference: The Customer will ensure that the Equipment will not be altered, repaired, serviced or moved except by service personnel approved by VOIPSTRA. The Customer must take good care of the Equipment while it is in the Customers possession. The Customer will be liable to VOIPSTRA for all loss of or damage to the Equipment while at the Customers premises, apart from normal wear and tear.
- Suitability: The Customer acknowledges and agrees that it has relied on its own judgement to evaluate the suitability of the Services for the purpose for which it requires the Services.
- Other Carrier's Terms: If VOIPSTRA uses the services of another Carrier in providing the Services, the Customer agrees to comply with the reasonable directions of VOIPSTRA necessary to ensure compliance by VOIPSTRA with the relevant Carrier's terms of supply.
- Customer Information: The Customer acknowledges that VOIPSTRA may need to collect, record or generate billing information in relation to the Services and where permitted by law, disclose such information to third parties for the purposes of resolving any billing disputes with other Carriers.
- VOIPSTRA/Customer Relationship: The Customer acknowledges that VOIPSTRA is a supplier of both wholesale and retail telecommunications services; and VOIPSTRA's retail sales force may contact any person in relation to the sale of VOIPSTRA's Services, provided always that VOIPSTRA must not use the Customer's Confidential Information to identify other Customers for the purpose of VOIPSTRA's retail or wholesale sales and marketing.
- Customer Warranties: The Customer represents and warrants that it will:
(a) comply with the Acceptable Use Policy, VOIPSTRA's manuals, any operational procedures relating to the supply of the Service that the Customer may agree with VOIPSTRA and VOIPSTRA's reasonable directions regarding the supply and use of the Service;
(b) be responsible for any communication links required to connect the Customer's point of presence to VOIPSTRA's network as agreed with VOIPSTRA;
(c) be responsible for maintaining the security of any password VOIPSTRA gives to the Customer to access the Website; and
(d) not represent that it has any special relationship with or special pricing from VOIPSTRA;
(e) not represent that a Service has any characteristics (for the avoidance of doubt, excluding price) or functionality other than as specified in VOIPSTRA's published service descriptions or in any specifications, collateral or brochures given by VOIPSTRA to the Customer.
- INTELLECTUAL PROPERTY
- The Customer must not use VOIPSTRA's Intellectual Property, including without limitation, VOIPSTRA's name, the VOIPSTRA logo, or its trade marks, without VOIPSTRA's prior written consent.
- The Customer must not hold out that it is an agent, contractor or otherwise associated with VOIPSTRA or any of its Related Entities.
- FORCE MAJEURE
- If a Party is unable to perform an obligation (other than an obligation to pay money) under this Agreement ("First Party") by reason of Force Majeure, that obligation is suspended for the duration of the Force Majeure provided that the First Party:
(a) gives the other Party ("Affected Party") prompt notice of the details of the Force Majeure and an estimate of the extent and duration of its inability to perform; and
(b) take all reasonable steps to remove that Force Majeure as quickly as possible.
- Within 5 Business Days after receipt of a notice given under clause 18.1, the parties must meet to discuss in good faith a mutually satisfactory resolution to the Force Majeure suspension.
- The requirement that a Force Majeure be removed with all possible diligence does not require the settlement of labour disputes or other claims on terms which, in the reasonable opinion of the Party affected, are unreasonable. If the labour dispute or other claim principally concerns any matter the subject of this Agreement, the First Party must advise the Affected Party.
- The Provider retains all property rights in the Confidential Information.
- The Recipient must:
(a) take reasonable steps to enforce the confidentiality obligations imposed by this Agreement including diligently prosecuting at its cost, any breach or threatened or suspected breach of such confidentiality obligations by a person to whom the Recipient has disclosed the Confidential Information; and
(b) co-operate, and provide the Provider with all reasonable assistance, in any action which the Provider may take to protect the confidentiality of the Confidential Information.
- The Recipient may only disclose Confidential Information (to the extent reasonably necessary):
(a) to its legal advisers in relation to its rights under this Agreement;
(b) to its Representatives:
A. for the sole purpose of assisting the Recipient to meet its obligations under this Agreement and to effect the transactions contemplated by this Agreement on a need to know basis only; and
B. upon the Representative undertaking to keep strictly confidential any information disclosed.
(c) where such disclosure is:
A. required by law; or
B. required by the rules of any stock exchange where the Recipients securities are listed or quoted;
(d) in connection with legal proceedings between the parties relating to the confidentiality provisions of this Agreement. For the avoidance of doubt, unless otherwise provided for in this Agreement, the Confidential Information may not be disclosed in connection with any dispute or legal proceedings not related to this Agreement.
- Where the Recipient becomes aware of any actual, suspected or threatened unauthorised disclosure or use of the Confidential Information it will promptly notify the Provider.
- The Recipient acknowledges that a breach of this Agreement may cause the Provider irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, the Provider may seek and obtain injunctive relief against such a breach or threatened or suspected breach.
- The Recipient's obligations with respect to the Confidential Information survive termination and bind the Recipient until the relevant Confidential Information has become part of the public domain other than as a result of a breach of this Agreement.
- The Recipient will not use Confidential Information of the Provider, which the Recipient acquires from the Provider for any purpose which may cause the Provider loss, whether by way of damage to the Providers reputation, financial loss, or otherwise.
- Neither Party shall disclose the terms of this Agreement (including any Service Schedule) to any other person, except to its Representatives whose duties reasonably require such disclosure and on the conditions referred to in clause 19.3(b).
- For the purposes of this Agreement:
(a) the Customer agrees to VOIPSTRA collecting, using and disclosing information about the Customer for:
A. the purpose of assessing credit worthiness as outlined in clause 7;
B. all purposes associated with the provision of telecommunications Services to the Customer and the management of the Customer's account;
C. the purposes of communicating with the Customer about products and Services which VOIPSTRA or partners or affiliates of VOIPSTRA may provide to the Customer;
D. the purpose of implementing this Agreement; and
E. the purpose of complying with legal requirements.
(b) VOIPSTRA will provide the Customer with access to any personal information relating to the Customer held by VOIPSTRA, at the request of the Customer. VOIPSTRA reserves the right to charge a reasonable fee for the provision of this information. VOIPSTRA agrees to correct or amend any personal information held by VOIPSTRA which is inaccurate or out of date, at the Customer's written request.
(c) VOIPSTRA will handle the Customer's personal information in accordance with the requirements of relevant laws and industry standards.
(d) Subject to compliance with this clause 20.1, VOIPSTRA may, at any time in its absolute discretion:
A. intercept the Services or the data being transmitted over the Services, for the purpose of complying with its obligations at law;
B. monitor use of the Services.
- VOIPSTRA may sub-contract any of its obligations, or any part of its obligations, under this Agreement without the Customer's consent.
- VOIPSTRA may assign any of its obligations, or any part of its obligations, under this Agreement to any of its Related Bodies Corporate without the Customer's consent.
- Further Assurances: Each Party must sign all documentation and do all such things as the other Party reasonably requires (at the other Party's cost) to authorise or assist in obtaining consent or approval from any Government Agency to the transactions contemplated in this Agreement.
- Costs: Each Party must pay its own costs in respect of this Agreement and the documents and transactions contemplated by this Agreement.
- Assignment: the Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of VOIPSTRA, such consent not to be unreasonably withheld having regard to the perceived commercial viability and creditworthiness and the perceived integrity or reputation of the assignee. For the avoidance of doubt, a Change in Control of the Customer is a deemed assignment requiring the consent of VOIPSTRA under this clause.
- Indemnities: The indemnities in this Agreement are:
(a) continuing, separate and independent obligations of the parties from their other obligations and survive the termination of this Agreement; and
(b) absolute and unconditional and unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the Party giving the indemnity.
- Waiver & Exercise of rights: A waiver by a Party of a provision of or of a right under this Agreement, is binding on the Party granting the waiver only if it is given in writing and is signed by the Party or an authorised officer of the Party granting the waiver. A waiver is effective only in the specific instance and for the specific purpose for which it is given. A single or partial exercise of a right by a Party does not preclude another exercise or attempted exercise of that right or the exercise of another right.
Failure by a Party to exercise or delay in exercising a right does not prevent its exercise or operate as a waiver.
- Amendment: This Agreement may be amended only by a document signed by all parties.
- Counterparts: This Agreement may be signed in counterparts and all counterparts taken together constitute one document.
- Rights Cumulative: The rights, remedies and powers of the parties under this Agreement are cumulative and do not exclude any other rights, remedies or powers.
- Consents & Approvals: A Party may give its approval or consent conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this Agreement expressly provides otherwise.
- Severability: If the whole or any part of a provision of this Agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction and the remainder of this Agreement otherwise has full force and effect. This clause has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.
- Entire Agreement: This Agreement constitutes the entire Agreement of the parties about its subject matter and any previous Agreements, understandings, negotiations and representations on that subject matter cease to have any effect.
- No Merger: The warranties and indemnities in this Agreement do not merge on termination of it.
- Jurisdiction: This Agreement is governed by the laws from time to time in force in Queensland and the parties unconditionally submit to the non-exclusive jurisdiction of the Courts in that state for determining any dispute concerning this Agreement.
- Notices: A notice, approval or consent, to be issued under this Agreement or a Contract must be in writing and in the absence of evidence to the contrary will be take to be received:
(a) if left at the address of the addressee, at the time it was left;
(b) if sent by ordinary post, on the third day after posting;
(c) if sent by express post, on the next day;
(d) if sent by facsimile, at the time recorded on a transmission report from the machine from which the facsimile was sent; and
(e) if sent by electronic e-mail, at the time the sending Party receives a "return receipt" confirmation of successful transmission.
Capitalised terms used in this Agreement have the meanings set out below:
Acceptable Use Policy means the acceptable use policy, as amended by VOIPSTRA from time to time, which is available on the Website.
Access Site means the site address nominated in the Application for Service, for the Service Delivery Point.
Agreement means collectively:
(a) this VOIPSTRA Customer Service Agreement;
(b) the Service Schedules; and
(c) any document stated by this Agreement to form part of the Agreement.
Application for Service means the application forms published by VOIPSTRA from time to time for the purpose of recording the basic Customer and Service information required by VOIPSTRA to provision the relevant Service.
Billing Dispute means any alleged inaccuracy, omission or error on an Invoice.
Billing Dispute Notice means a notice issued pursuant to the Billing Disputes Procedure.
Billing Disputes Procedure means the procedure for the initiation and resolution of Billing Disputes as amended from time to time and published on the Website.
Business Day means any day other than a Saturday, Sunday or public holiday in QLD.
Change in Control means:
(a) a relevant interest, as defined in the Corporations Law, in more than 20% of the securities of the Customer that in normal circumstances entitle the holder to vote or participate at a meeting of the members of the Customer or to vote or participate in the election or appointment of directors of the Customer passes to a person or persons who did not have such relevant interest at the date of this Agreement (but this does not apply in the case of a public company where the change is a result of ordinary on-market activity); or
(b) the ability to control or the actual control (irrespective of whether such control is exercisable on a passive or active basis and irrespective of whether such control is exercisable solely or jointly or directly or indirectly) of the management and policies of the Customer passes to a person or persons who did not have such ability or actual control at the date of this Agreement.
For the avoidance of doubt, the appointment of an independent director to the Board of the Customer will not, in and of itself, constitute a Change in Control.
Charges means all fees and charges applicable to the Service and set out in the Service Schedule or if not provided for, then as calculated in accordance with the then current published tariff plan for the relevant Service as amended from time to time published and on the Website.
Competition Notice means a notice issued under Part XIB of the Trade Practices Act (Cth) 1974.
Confidential Information means, in relation to a Party,
(a) all know-how, trade secrets, ideas, concepts, technical and operational information relating to that Party or related bodies corporate;
(b) all information concerning the business affairs or property of that Party or its related bodies corporate or any business, property or transaction in which that Party or its related bodies corporate may be or may have been concerned or interested;
(c) any other information which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential to that Party or its related bodies corporate (or any third Party with whose consent or approval it uses that information);
but does not include any information:
(d) which is publicly known or becomes publicly known other than by a breach of this Agreement;
(e) which after being disclosed to the other Party, is disclosed to that Party again by a third Party at liberty to disclose it to that Party; or
(f) is developed independently by the Party to whom it is disclosed without reliance on any of the other Party's Confidential Information.
Contract means a contract formed between VOIPSTRA and the Customer pursuant to clause 3.1 for the supply and acquisition of the relevant Service.
Contract Commencement Date means the date the relevant Application for Service is signed by the Customer.
CPE Router means a router located at an Customer's premises, as set out in each Application for Service.
Current Supplier means a Carrier, a telecommunications service provider or equipment supplier who supplies services or equipment to the Customer.
Customer means any party who is supplied with VOIPSTRA Services
Equipment means any VOIPSTRA owned or leased equipment supplied by VOIPSTRA in connection with the supply of a Service to the Customer.
Event of Default occurs where:
(a) the Customer fails to pay any sum payable under this Agreement by the due date for payment;
(b) the Customer breaches any provision of this Agreement and the breach is not capable of remedy;
(c) the Customer breaches any provision of this Agreement which is capable of remedy and fails to remedy the breach within 7 days of the date of a notice from VOIPSTRA demanding that the breach be remedied;
(d) any step is taken (including without limitation, an application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for:
(i) the Customer's winding up, dissolution, or administration; or
(ii) the Customer entering into any arrangement, compromise or composition with or assignment for the benefit of the Customer's creditors or any class of them,
except for the purposes of a solvent reconstruction or amalgamation;
(e) a receiver, receiver and manager, or other controller, administrator or similar officer is appointed with respect to, or takes control of, the Customer or any of the Customer's assets and undertakings;
(f) in VOIPSTRA's reasonable opinion there has been a material adverse change in the Customer's financial position since the Start Date including, without limitation, as a result of a change in the value, nature or saleability of the Customer's assets; or
(g) the Customer has a Change in Control.
Force Majeure in relation to a party, means:
(a) any act of God or act of nature, fire, flood, storm, explosion, sabotage, riot, act of war whether declared or not, requirement or restriction of governmental authorities, inability or delay in the grant of governmental or other approvals, consents, permits, licences or authorities or any other like event;
(b) any strike, lockout, work stoppage or other industrial dispute of any kind;
(c) any act or omissions of a third party (including cable cuts) which affects the provision of the Services, including a failure to provide goods and services or access to premises;
(d) unscheduled maintenance of VOIPSTRA network or facilities in cases of emergency;
(e) any other events or circumstances beyond the reasonable control of the affected party.
General Dispute means any dispute (other than non payment by the Customer) arising between VOIPSTRA and the Customer under or in relation to this Agreement which is not:
(a) a Billing dispute;
(b) a dispute in connection with a Billing Dispute;
GST and GST Law have the same meaning as defined in A New Tax System (Goods and Services Tax) Act 1999, subject to any amendment to that definition made pursuant to applicable rulings, determinations or advice issued by the commissioner of Taxation or a decision from any tribunal or court.
Insolvency Administrator means a receiver, receiver and manager, official manager, administrator (voluntary or otherwise), provisional liquidator, liquidator or like official.
Installation Charge means a charge for labour, equipment, number connection and associated cabling for initial installation of the Services.
Intellectual Property means all rights conferred under statute, common law and equity in and in relation to trade marks, trade names, logos and get up, inventions patents, designs, copyright, circuit layouts, know-how and trade secrets and all rights and interests in them or licences to use any of them.
Invoice means the billing information provided to the Customer in hard copy or electronic format in respect of the Services.
Loss means costs, loss, damage, liability or expenses (including all reasonable legal costs, fees and expenses).
Minimum Term means the minimum term of a Contract commencing on the Service Start Date.
Other Supplier means a Carrier, a telecommunications carriage service provider or an equipment supplier other than VOIPSTRA, as the case may be, and includes Current Suppliers.
VOIPSTRA Customer Service Agreement means these terms and conditions including schedules and annexures but does not include the Service Schedules.
Party means a party to this Agreement.
Planned Outage means a period of time, as reasonably determined by VOIPSTRA, that VOIPSTRA may interrupt supply of the Services to the Customer for routine maintenance, upgrading or other similar activities, after giving the Customer reasonable prior notice.
Provider means a Party that discloses its Confidential Information to the other Party.
Ready for Service Date means the date that VOIPSTRA expects to commence initial supply of the Services to the Customer.
Recipient means a Party that receives or obtains Confidential Information of the other Party.
Recurring Charge means a monthly recurring charge.
Regulator means, as the case requires, the minister responsible for the administration of the Act, the ACA, the ACCC, or any two or more of them.
Representative of a Party means a director, officer, employee, adviser (financial or legal), agent and contractor but does not include the other Party.
Security means in respect of each Contract that amount specified in the relevant Service Schedule, paid to VOIPSTRA as a non interest bearing security deposit as security for amounts payable under this Agreement or an unconditional and irrevocable bank guarantee in favour of VOIPSTRA, and any additional, replacement or alternative security amount determined in accordance with this Agreement.
Senior Management Committee means a committee comprised of two representatives at a senior management level nominated by each party. Each nominated representative must have a detailed working knowledge of the dispute and a sufficient level of authority to resolve the dispute on behalf of the party that they represent.
Service a service that VOIPSTRA has agreed to supply to the Customer under this Agreement as set out in the relevant Service Schedule.
Service Delivery Point means the termination panel or other electrical interface (as required for interconnection to VOIPSTRA's network as determined necessary by VOIPSTRA) located at the Access Site, subject to acceptance of that location by VOIPSTRA, and agreement between VOIPSTRA and the relevant building owner as to access to the relevant building under licence or as a result of the exercise by VOIPSTRA of a statutory right of access.
Service Levels, in relation to a Service, means the service levels and applicable rebates (if any) annexed to the relevant Service Schedule or, at the discretion of VOIPSTRA, published on the Website, as amended from time to time.
Service Schedule means, in relation to a Service, a schedule setting out a description of the Service, Charges, Minimum Term (if any), Services Levels (if any) and Special Conditions (if any), applicable to the relevant Service.
Service Start Date means the earlier of:
(a) the date on which VOIPSTRA first notifies the Customer that the Service is ready for use; and
(b) the date on which the Customer first uses the Service.
Special Conditions means any special terms and conditions relating to a specific Service set out in a Service Schedule.
Start Date means the date of last execution of this Agreement.
Tax (including Taxes) means any fees, charges, taxes or other levies imposed by any Federal or State government or municipal council (other than the tax on VOIPSTRA's income or capital gains).
Transferred Services means the telecommunication Services transferred to VOIPSTRA from the Customer's Current Supplier.
Usage Based Charges means a monthly usage charge for utilisation of minutes or capacity including any minimum usage charge set out in the Application for Service.
Website means the website located at http://www.VOIPSTRA.com.au as amended from time to time.
In this Agreement, unless the context requires another meaning:
- Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
- Headings are for convenience only and do not affect interpretation.
- A reference:
(a) to the singular includes the plural and vice versa;
(b) to a gender includes all genders;
(c) to a document (including this Agreement) is a reference to that document (including any Schedules and Schedules) as amended, consolidated, supplemented, novated or replaced;
(d) to a party means a party to this Agreement;
(e) to a notice means a notice, approval, demand, request, nomination or other communication given by one party to another under or in connection with this Agreement;
(f) to a person (including a party) includes:
A. an individual, company, other body corporate, association, partnership, firm, joint venture, trust or Government Agency; and
B. the person's successors, permitted assigns, substitutes, executors and administrators;
(g) to a law:
A. includes a reference to any legislation, treaty, judgment, rule of common law or equity or rule of any applicable stock exchange; and
B. is a reference to that law as amended, consolidated, supplemented or replaced; and
C. includes a reference to any regulation, rule, statutory instrument, by-law or other subordinate legislation made under that law;
(h) to proceedings includes litigation, arbitration and investigation;
(i) to a judgment includes an order, injunction, decree, determination or award of any court or tribunal;
(j) to time is to Sydney time;
(k) the word "including" or "includes" means "including, but not limited to", or "includes, without limitation"