General Terms and Conditions – CommuniCloud Products and Services
1A Definitions and Interpretation
In this Agreement, the following definitions apply: “Affiliate” of a Party means any legal entity controlling, controlled by, or under common control with such Party. “CommuniCloud” means, with respect to the General Terms and Conditions, the CommuniCloud entity that signs the cover sheet.
“CommuniCloud Equipment” means equipment (including any software) owned or licensed by CommuniCloud and placed on the Customer’s premises by CommuniCloud for the provision of a Service.
“CommuniCloud Parties” means the employees, agents and subcontractors of CommuniCloud or its Affiliates.
“Business Day” means any day which is customarily regarded in the country or locality in which the Products or Services are being provided as a day when business is undertaken, excluding national, public, or bank holidays. If the day on or by which anything is to be performed is not a Business Day, it must be done on or by the following Business Day.
“Charges” means the fees payable for Products or Services under this Agreement as set out in the Order or the applicable Schedule.
“Confidential Information” means all documentation, technical information, software, know how, business information or other materials (whether written, oral or in electronic form) concerning the business of a Party that are disclosed in confidence by the Party to the other during the term of this Agreement.
“Content” means information made available, displayed or transmitted in connection with a Service (including information made available by means of an HTML “hyperlink”, third party posting or similar means) including all IPR contained in it, as well as the contents of any bulletin boards or chat forums, and all upgrades, updates, modifications and other versions of them. “Customer” means the Customer entity that signs the cover sheet.
“Customer Data” means all data, including personal data or personal information, processed or handled on behalf of the Customer by CommuniCloud under this Agreement.
“Customer Equipment” means equipment (including software), other than CommuniCloud Equipment, used by the Customer in connection with a Service.
“General Terms and Conditions” means these terms and conditions.
“IPR” means any patent, copyright, database right, design right, community design right, semiconductor topography right, registered design, rights in confidential information and know-how, or any similar right in any part of the world and shall include any applications for the registration of any such rights capable of registration in any part of the world.
“Minimum Period of Service” means a period of time beginning on the OSD during which a Service will be provided by CommuniCloud. The Minimum Period of Service will be specified in a Schedule, Service Annex or Order. “Operational Service Date” or “OSD” means the date on which any Service or part of a Service is first made available to the Customer by CommuniCloud.
“Order” means an order signed by both Parties under this Agreement.
“Party” means either CommuniCloud or the Customer and “Parties” means both CommuniCloud and the Customer.
“Products” means equipment and/or Software sold to the Customer as set out in an Order.
“Regulated Service” shall mean, in Australia, any Services that are subject to: (i) conditions that are imposed by the Australian Authority of the Minister for Broadband, Communications, and the Digital Economy on CommuniCloud either specifically or generally under clause 71 of Schedule 1 of the Telecommunications Act 1997 and any notifications, determinations, directions, decisions and the like related thereto; (ii) a specific ruling against CommuniCloud under the Telecommunications Act 1997 by the relevant governmental body in Australia; and/or (iii) any formal or informal undertakings or assurances (however described) governing the conduct of CommuniCloud’s electronic communications business, including without limitation the undertakings given by CommuniCloud to Australia under the Telecommunications Act 1997, shall mean any Service that is subject to tariff or other analogous regulation issued by a regulatory authority within the territory in which the Service is provided having jurisdiction over telecommunications services or any statute applicable to the provision of such Services.
“Schedule” means any one or more schedules (including any Service Annexes) that form part of this Agreement describing the Products or Services. “Service” means each service described in any Schedule and/or Service Annex and/or applicable Order(s).
“Service Annex” means any annexure to any Schedule. “Site” means the place specified in an Order or Schedule at which CommuniCloud provides a Product or Service.
“Software” means the software to be licensed to the Customer as specified in an Order or Schedule (as applicable) together with any embedded software and necessary for the use of, the CommuniCloud Equipment.
“User” means any end-user who is allowed by the Customer to use or access a Service or Product.
In this Agreement, headings and bold type are for convenience only and do not affect the interpretation of this Agreement, and, unless the context otherwise requires, words importing the singular include the plural and vice-versa.
1. Order of Precedence
In the event of a conflict among the documents constituting this Agreement, the order of precedence shall be as follows, in decreasing order:
(a) Any provisions (including any tariff(s)) that apply to Regulated Services set out in a Schedule;
(b) Service Annex;
(d) These General Terms and Conditions; and
2. Effective Date
This Agreement is effective when executed by authorised representatives of both Parties and shall continue until terminated in accordance with its terms.
3. CommuniCloud’s Obligations
3.1 CommuniCloud shall provide the Products and Services to the Customer in accordance with the Agreement. The duration of each Service will be set out in the applicable Schedule or Order.
3.2 CommuniCloud shall use reasonable endeavours to meet any performance dates or service levels specified in a Schedule or Order but, unless otherwise expressly agreed within a Schedule, all timescales shall be estimates only.
3.3 CommuniCloud shall comply with all reasonable health and safety rules and regulations and security requirements that apply at a Site that have been notified to and agreed by CommuniCloud in writing. CommuniCloud shall not be liable if, as a result of any such compliance, it is in breach of any of its obligations under this Agreement.
3.4 CommuniCloud will use reasonable care in the removal of any CommuniCloud Equipment.
3.5 Provided that CommuniCloud gives the Customer as much notice as reasonably practicable, CommuniCloud may occasionally:
(a) suspend a Service in an event of emergency and/or to safeguard the integrity and security of its network and/or repair or enhance the performance of its network;
(b) for operational reasons, change the technical specification of the Service, provided that any such change does not materially decrease or impair performance of the Service; or
(c) provide an alternative, equivalent service, where it becomes necessary to do so.
4. The Customer’s Obligations
4.1 Without prejudice to Clause 9.1, where the Customer is responsible for any preparatory activities required by CommuniCloud in order to supply the Products and/or Services, the Customer shall ensure that all such preparatory work, information, items or consents are completed, made available or obtained (as relevant) at its own cost in sufficient time to allow CommuniCloud to complete its work and deliver the relevant Products and/or Services. If the Customer moves or changes the location of any CommuniCloud
Equipment without CommuniCloud’s prior written consent, CommuniCloud may recover any additional cost or expense incurred by CommuniCloud as a result of any lost or wasted time associated with attempting to locate the InView Equipment or any failed visits as a consequence of that action by the Customer.
4.2 Subject to Clause 14, If the Customer delays or fails to perform its obligations under Clauses
4.1 or 9.1, then at CommuniCloud’s option, CommuniCloud may: (i) change the delivery date or cancel the relevant Order(s) and charge the Customer for any applicable termination Charges; or (ii) invoice the Customer for any reasonable Charges incurred for any work that is performed by CommuniCloud on behalf of the Customer and that is directly attributable to the Customer’s failure to perform or delay where such work is necessary to provide the Products and/or the Services. Except in the case of an emergency, CommuniCloud shall seek to notify the Customer in advance of its intention to invoke this clause.
4.3 If CommuniCloud must change a Product or Service due to incomplete or inaccurate information provided by the Customer, additional one-time and/or recurring Charges may be applied, within CommuniCloud’s reasonable discretion.
4.4 The Customer will comply with CommuniCloud’s reasonable requests that are necessary for reasons of health and safety, environment, sustainability, security or the quality and/or performance of any Products and/or Services provided to the Customer. The Customer will, upon reasonable notice from CommuniCloud, allow CommuniCloud and CommuniCloud Parties access to the Sites as may be reasonably necessary for the performance by CommuniCloud of its obligations under this Agreement, including the installation or maintenance of CommuniCloud Equipment or Products and the recovery or removal of any CommuniCloud Equipment.
5.1 Unless otherwise stated in a Schedule or Order, the Customer may cancel the delivery of Products or provision of Services before the relevant OSD, but will be responsible for any cancellation charges as set out in the applicable Schedule or Order or, if none are specified, as reasonably imposed by CommuniCloud, provided there shall be no right to cancel the delivery of any Products that have been ordered or shipped from a third party manufacturer unless otherwise agreed with that third party manufacturer.
5.2 CommuniCloud may accept instructions from a person who CommuniCloud reasonably believes is acting with the Customer’s authority.
6.1 The Charges for the Products and Services are set out in the applicable Schedule or Order.
6.2 The Customer shall pay all Charges for the Products and Services within thirty (30) days of the date of CommuniCloud’s invoice, without any set-off, counterclaim or deduction. Where applicable, CommuniCloud may set-off any amounts it owes to the Customer against any amounts owed by the Customer to CommuniCloud under this Agreement. CommuniCloud may, in its discretion, add interest charges, from the due date, to any past due amounts at a per annum rate of seven (7) percentage points above the base lending rate of Westpac Banking Corporation, compounded daily, or the maximum rate permitted by law, whichever is less.
6.3 Unless provided otherwise in a Schedule or Order, CommuniCloud will invoice and the Customer will pay all Charges in Australian Dollars. Charges are exclusive of all applicable taxes (including but not limited to GST, value added, sales, use and excise taxes), customs duties, and regulatory and other fees or surcharges (together “Taxes”), relating to the provision of Products and Services under this Agreement. The Customer will pay all such Taxes including those paid or payable by CommuniCloud that under applicable law are permitted to be passed on by CommuniCloud to the Customer, and are customarily passed on to customers by telecommunication service providers (but for the avoidance of doubt exclusive of taxes on the net income or net worth of CommuniCloud), and any related interest and penalties for Products or Services supplied under this Agreement, except to the extent a valid exemption certificate is provided by the Customer to CommuniCloud prior to the delivery of any Products or Services.
6.4 In the event that payment of any amount of the Charges becomes subject to withholding tax, deduction, levy or similar payment obligation on sums due to CommuniCloud, the Customer undertakes to pay to CommuniCloud and/or indemnify CommuniCloud for such additional amounts as are necessary in order that the net amounts received by CommuniCloud after all deductions and withholdings shall be not less than what would have been received in the absence of any such requirement to make such deduction or withholding. Should the Customer withhold any amounts without first grossing up its payments, or indicate that it will do so, CommuniCloud may gross up its Charges to reflect such withholding, or otherwise include such amounts on its invoices (resulting in CommuniCloud being subject to tax by reference to the grossed up amount, whilst only receiving the net amount). In all cases, the Customer will provide CommuniCloud free of charge with appropriate certificate(s) from the relevant authorities confirming the amount of the taxes, deduction, levies or similar payments withheld by the Customer.
6.5 The Customer will promptly, but in no event later than fourteen (14) days from the date of invoice, notify CommuniCloud in writing of any disputed invoice, together with all information relevant to the dispute, including the account numbers, circuit identification, and trouble ticket numbers, if any, and an explanation of the amount disputed and the reasons. The Customer must pay all undisputed amounts in accordance with Clause 6.2 unless the disputed amount is less than 5% of the total invoice amount in which case the total invoice amount shall be due and payable by the due date. Disputes shall be resolved promptly and the resolved amount, if any, payable within fourteen (14) Business Days after resolution. Interest will accrue from the due date on subsequent payments of amounts withheld or credits on overpayments refunded.
6.6 Should the Customer initiate any change to the agreed billing arrangements (whether by assignment or otherwise) for the Products and/or Services, and such change results in additional Tax and/or withholding tax costs to CommuniCloud and/or its Affiliates that they are unable to fully recover (including as a result of any impact with respect to how CommuniCloud is able to bill for the Products and Services due to regulatory requirements), CommuniCloud reserves the right to modify the Charges for such Products and Services accordingly, and the Customer agrees to bear those additional costs.
6.7 Without prejudice to any other provision of this Agreement, CommuniCloud reserves the right to treat failure to pay by the Customer as a material breach of this Agreement. If the Customer commits such material breach, CommuniCloud’s rights are set out in Clause 12. Additionally, CommuniCloud reserves the right to:
(a) restrict, suspend or terminate provision of the relevant Service or Order and CommuniCloud shall be released from its obligations under this Agreement with respect to such Service or Order until any balance due is paid;
(b) in accordance with Clause 12.7, terminate this Agreement without liability to the Customer and without prejudice to CommuniCloud’s rights to be paid sums due; and/or (c) recover any CommuniCloud Equipment; where such recovery takes place, the Customer shall pay to CommuniCloud such recovery Charges as may be specified in the applicable Schedule or as otherwise notified by CommuniCloud to the Customer.
6.8 Unless otherwise agreed in writing, a failure by CommuniCloud to include the Customer references on the invoice shall not constitute a valid reason by the Customer to withhold payment due under the invoice. The Customer shall make payment in accordance with Clause 6.2 and the instructions set out on the invoice, and where the Customer makes an aggregated payment in respect of more than one invoice, the Customer shall submit a remittance slip to show amounts paid in relation to each individual invoice.
7. Use of the Service
7.1 Except as set out in Clause 17, the obligations of CommuniCloud under this Agreement are solely to the Customer and not to any third party. The Customer may use any Service for its own business purposes, provided that the Customer:
(a) complies with, and ensures that any User complies with the terms of any applicable legislation and any licence applicable to the Customer in any country where the Service is provided;
(b) shall remain responsible for: (i) access and use of the Service by Users; (ii) all Charges incurred in connection with the Services; and (iii) compliance with all terms and conditions of this Agreement by it and Users;
(c) ensures that its list of Users is kept current, and that the Customer terminates access immediately for anyone who is no longer a User; and (d) complies with the provisions of any Software licences provided with or as part of the Service.
7.2 The Customer shall keep harmless, defend and indemnify CommuniCloud, its Affiliates and the CommuniCloud Parties against any claims, losses, costs and liabilities arising from any claims by any third party, including Users, in connection with the use or misuse of the Product or Services in breach of Clause 7.1.
7.3 CommuniCloud has certain obligations towards its third party service providers and suppliers. Such third party service providers and suppliers (and their officers, employees, contractors and agents) (together “Third Party Suppliers”) shall not be liable to the Customer or anyone else for any liabilities or costs of any kind arising in any way from the provision of Services by CommuniCloud or from the Customer’s or any User’s use of those Services, including the Customer’s access to and use of any third party’s networks. This clause creates an obligation that Third Party Suppliers may enforce, whether as a defence or otherwise. To the extent permitted by law, the Customer shall indemnify CommuniCloud against any liabilities or costs suffered or incurred by CommuniCloud in connection with a claim (whether based in contract, tort (including negligence), statute or otherwise) against a Third Party Supplier by the Customer or any User in connection with use of the Services. For the avoidance of doubt, the limitations of liability in Clause 13 shall not apply to such indemnity.
8. Connection of Customer Equipment to the Products and/or Services
8.1 The Customer is responsible for the provision, installation, configuration, monitoring and maintenance of any Customer Equipment connected to the Service or used in connection with a Product. The Customer shall ensure that any the Customer Equipment connected to or used with the Product and/or Service is connected and used in accordance with any instructions and safety and security procedures applicable to the use of that Customer Equipment.
8.2 The Customer shall ensure that any Customer Equipment attached (directly or indirectly) to the Product and/or Service by the Customer is technically compatible with the Service and approved for that purpose under any applicable law or regulation. CommuniCloud does not make any commitment with respect to the interoperability between the Product and/or Service and Customer Equipment. In the case of Products sold for the purpose of the Customer’s use with the Service, the Customer may rely upon CommuniCloud’s representations as to such compatibility and compliance, as of the date of provision.
9. CommuniCloud Equipment and Products
9.1 If CommuniCloud is required to install any Equipment or Products at a Site, the Customer will, prior to installation and at its own expense:
(a) obtain all necessary consents, including consents for any necessary alterations to buildings and any consents required for the installation and use of any CommuniCloud Equipment or the relevant Products over the Customer’s network or at the Customer’s Site;
(b) permit access to CommuniCloud and any CommuniCloud Parties to the relevant Site as may be required by CommuniCloud or CommuniCloud Parties to install the Equipment or Products;
(c) provide a suitable and safe working environment, including all necessary trunking, conduits and cable trays, in accordance with the relevant installation standards;
(d) provide any electricity and telecommunication connection points required by CommuniCloud;
(e) provide any openings in buildings required to connect such CommuniCloud Equipment or Products to appropriate telecommunications facilities;
(f) provide internal cabling between the InView Equipment and any Customer Equipment, as appropriate; (g) take up or remove any fitted or fixed floor coverings, ceiling tiles and partition covers in time to allow CommuniCloud to undertake any necessary installation or maintenance Services and carry out afterwards any work that may be required to make good any cosmetic damage caused during the installation or maintenance Services; and (h) ensure that any floor loading limits will not be exceeded.
The above actions must be completed in advance of any installation work by CommuniCloud; otherwise the provisions in Clause 4.2 shall apply.
9.2 Risk of loss of the CommuniCloud Equipment and Products will pass to the Customer upon delivery, whether or not the Equipment or Products have been installed. Title to Products sold under this Agreement shall pass to the Customer upon payment of the applicable Charges. In relation to a cross- country border supply of Products, title will pass to the Customer upon delivery to a common carrier in accordance with the Free Carrier Alongside ‘FCA’ named place of delivery shipping point (as that term is defined by Incoterms 2010). In no event will the carrier be deemed to be an agent of CommuniCloud.
9.3 The Customer is responsible for the CommuniCloud Equipment and must not move, add to, modify or in any way interfere with the CommuniCloud Equipment, nor allow anyone else (other than someone authorised by CommuniCloud) to do so. The Customer will be liable to CommuniCloud for any loss of or damage to the CommuniCloud Equipment, except where the loss or damage is due to fair wear and tear or is caused by CommuniCloud or any CommuniCloud Party.
9.4 Upon termination of this Agreement, if the Customer wishes to dispose of any Products, then it shall notify CommuniCloud accordingly and allow CommuniCloud to collect such Products if CommuniCloud elects to do so.
9.5 In the event that the Customer fails to notify CommuniCloud in accordance with Clause 9.4 and disposes of the Products itself, the Customer shall indemnify CommuniCloud against all claims, losses, costs, expenses and liabilities (including any fines levied upon CommuniCloud) incurred by CommuniCloud as a result of the Customer’s breach of that Clause.
9.6 The Parties agree that the UN Convention on the Sales of Goods shall not apply to this Agreement.
10.1 CommuniCloud and the Customer shall keep in confidence all Confidential Information obtained under or in connection with this Agreement and will not disclose it to any party other than in confidence to
(a) their employees or employees of their Affiliates; or
(b) their professional advisors; or
(c) in the case of CommuniCloud, employees of their subcontractors, in each case only to those who have a need to know such Confidential
Information and to the extent necessary for performance of this Agreement or the use of the Service and/or Product.
10.2 This Clause 10 shall not apply to information that is:
(a) in the public domain other than in breach of this Agreement;
(b) in the possession of the receiving Party before such divulgence has taken place;
(c) obtained from a third party who is free to divulge the same; or
(d) developed by the receiving party independently of and without access to Confidential Information obtained under this Agreement.
10.3 If either CommuniCloud or the Customer receives a demand from a lawful authority, regulatory authority or court to disclose any Confidential Information provided to it by the other, it may comply with such demand if it has
(a) satisfied itself that the demand is lawful;
(b) where possible, given the other party the maximum written notice permissible under the demand in which to make representations; and
(c) marked the required information as the Confidential Information of the other party.
10.4 The receiving Party must, for a period of three (3) years following the termination of this Agreement, comply with this Clause 10 with respect to Confidential Information it receives under this Agreement.
10.5 The receiving Party shall return or destroy any Confidential Information upon the request of the disclosing Party.
10.6 The Parties acknowledge that a violation of this Clause 10 may cause irreparable harm to the disclosing Party, for which monetary damages would be inadequate, and injunctive relief may be sought for a breach of this Clause 10.
11. Intellectual Property Rights (IPR)
11.1 All IPR of either Party either pre-existing or created by either Party during or arising from the performance of this Agreement shall remain the absolute property of that Party or its licensors.
11.2 Without prejudice to any open source software licence terms, which terms shall apply independent of this licence grant,
(a) CommuniCloud grants the Customer a non- transferable and nonexclusive licence to use in object code form, all Software and associated documentation that may be supplied by CommuniCloud, subject to the Customer’s compliance with the Agreement, any third party terms and conditions that apply to the use of the Software, and associated documentation, solely as necessary for receipt or usage of the Products or Services; and
(b) The Customer undertakes not to copy, decompile or modify or reverse engineer any Software or knowingly allow or permit anyone else to do so, except as expressly permitted by CommuniCloud in writing or otherwise provided at law.
11.3 The term of any licence granted by CommuniCloud under Clause 11.2 is coterminous with the term for the Service with which the Software is associated or in relation to which any Product is supplied.
11.4 Excluding any open source Software that may be made available by CommuniCloud to the Customer in connection with the delivery of the Services, CommuniCloud will indemnify the Customer against all third party claims and proceedings arising from infringement of any third party’s IPR by the Customer’s receipt of any Services only to the extent that the Customer promptly notifies CommuniCloud in writing of any such claim, that CommuniCloud is given immediate and complete control of any such claim, that the Customer does not make any public statements related to the claim or in any way prejudice CommuniCloud’s defence of such claim, and that the Customer gives CommuniCloud all reasonable assistance with such claim. All costs incurred or recovered in such negotiations, litigation, and settlements shall be for CommuniCloud’s account.
11.5 The indemnity set out in Clause 11.4 shall not apply to claims or proceedings arising from:
(a) use of any InView Equipment, Products, Services or any Software in conjunction or combination with other equipment or software or any other service not supplied by CommuniCloud;
(b) any unauthorised alteration or modification of the Service, Product or any Software;
(c) Content, designs or specifications supplied by or on behalf of The Customer; or
(d) use of the Service, any Product or any Software other than in accordance with this Agreement.
11.6 The Customer will indemnify and hold CommuniCloud harmless against all such claims, losses, costs and liabilities arising from the matters set out in Clause 11.5 (a), (b), (c) and (d) above that are attributable to the Customer or its agents or Users and will, immediately upon notification of any such claim by CommuniCloud, cease any activity that gave rise to the claim.
11.7 If any Product or Service becomes, or CommuniCloud believes it is likely to become, the subject of a claim of infringement of any IPR as referred to in Clause 11.4, CommuniCloud, at its option and expense, may:
(a) secure for the Customer a right of continued use; or
(b) modify or replace the Product or Service so that it is no longer infringing, provided that such modification or replacement shall not materially affect the performance of the Product or Service.
11.8 The indemnity in Clause 11.4 sets out the Customer’s sole and exclusive remedy for claims of infringement of intellectual property rights.
12. Termination of Service and the Agreement
12.1 Subject to any Minimum Period of Service that may apply and unless otherwise specified in a Schedule or Order, either Party may terminate any Service at any time by giving ninety (90) days’ written notice to the other; provided, however, that where the Customer exercises its rights under this Clause 12.1, the Customer shall be liable for payment to CommuniCloud of any outstanding Charges by way of compensation and any applicable termination compensation as set out in the applicable Schedule or Order.
12.2 Termination of any individual Service or Order will not affect the Parties’ rights and obligations with regard to any other Service or Order.
12.3 Either Party may immediately by notice terminate this Agreement or any affected Order(s) if one of the following events occurs:
(a) the other Party commits a material breach and has failed to rectify the breach within thirty (30) days after the terminating Party has given its notice of default;
(b) an event as set out in Clause 14 prevents the performance of the whole or a substantial part of the other Party’s obligations in relation to that Service or Product for a continuous period of thirty (30) days after the date on which it should have been performed;
(c) any governmental or regulatory authority with competence and/or jurisdiction over the Parties decides that the provision of the relevant Service or Product under this Agreement is contrary to existing laws, rules or regulations or any decision, law or other official governmental order makes the provision of the Products or Service illegal. In such case no damages shall be due;
(d) any of the authorisations or regulatory formalities required was or is not obtained, is withdrawn or is no longer valid for whatever reason; or
12.4 A party may immediately by notice terminate this Agreement if the other Party is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if any of its assets are the subject of any form of seizure, or goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory or if a receiver or administrator is appointed over its assets (or the equivalent of any such event in the jurisdiction of such other Party).
12.5 Upon termination of this Agreement for any reason other than for cause, all Orders that have been executed prior to the date of termination shall remain unaffected and continue in full force and effect until termination or expiry of each Order in accordance with the terms of that Order.
12.6 Upon termination of this Agreement (including any affected Order executed under it): (a) the rights of the Parties accrued up to the date of such termination shall remain unaffected; and (b) The Customer shall cooperate fully with CommuniCloud to recover any InView Equipment.
12.7 In the event of termination of this Agreement or any Order by CommuniCloud for cause, CommuniCloud shall be entitled to all termination compensation from the Customer as if the Customer had terminated for convenience at that point in time, as set out in the applicable Schedule(s or Order(s).
13. Limitation of Liability
13.1 Neither Party excludes or restricts in any way its liability for death or personal injury resulting from its own negligence or the negligence of its employees or agents acting in the course of their employment or agency or for fraudulent misrepresentation.
13.2 Subject to Clause 13.1, neither Party shall be liable to the other, whether in contract, tort, under statute or otherwise howsoever arising under or in connection with this Agreement (including in each case negligence):
(a) any loss of profits, business, contracts, anticipated savings, reputation, opportunity, goodwill (including pecuniary losses arising from loss of goodwill), or revenue;
(b) any loss incurred as a result of business interruption, expenditure of time by personnel or wasted expenditure;
(c) any loss or corruption or destruction of data;
(d) any special, indirect or consequential loss or damage whatsoever; and/or
(e) any loss arising from the transmission of viruses, in all cases set out in this Clause 13.2, whether or not that Party was advised in advance of the possibility of such loss or damage.
13.3 Subject to any other limitations of liability that are set out in the relevant Schedule, if a Party is in breach of any obligations hereunder, or if any other liability however arising, whether deliberate or unintentional (including liability for negligence or breach of statutory duty) arises in connection with an Order or with this Agreement, then, subject to Clauses 13.1 and 13.2 of this Agreement, such Party’s liability to the other Party shall be limited to AUD$1,000,000 for any one event or series of connected events and to AUD$2,000,000 for all events (connected or unconnected) in any period of twelve (12) consecutive months; provided, however, that any remedies contained in any Service Level Agreement shall be the sole and exclusive remedies for any failure to meet the performance obligations under that Service Level Agreement.
13.4 CommuniCloud shall implement reasonable precautions to prevent any unauthorized access by third parties to any part of the telecommunications network used to provide the Services to the Customer, but CommuniCloud shall not be liable for any loss or damage sustained by the Customer in the event of any unauthorized access in spite of CommuniCloud’s reasonable precautions.
13.5 The Agreement includes terms implied by statute which cannot be lawfully excluded, including those implied by Division 1, Part 3-2, Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“CCA Terms”). However, in relation to the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, CommuniCloud’s liability for breach of those terms (other than sections 51, 52 and 53 of the CCA Terms) will be limited, at its option, to any one or more of; in the case of goods, the replacement, repair or payment of the cost of replacement or repair of the goods; and in the case of services, supplying the services again or payment of the cost of having the services supplied again.
14. Force Majeure: Matters Beyond the Reasonable Control of Either Party
14.1 Neither Party shall be liable for failure or delay in the performance of its obligations caused by or resulting from force majeure, which shall include, but not be limited to, events that are unpredictable, unforeseeable or irresistible, such as any extremely severe weather, flood, landslide, earthquake, storm, lightning, fire, subsidence, epidemic, acts of terrorism, biological warfare, outbreak of military hostilities (whether or not war is declared), riot, explosions, strikes or other labour unrest, civil disturbance, sabotage, expropriation by governmental authorities and any other act or any event that is outside the reasonable control of the concerned Party.
14.2 CommuniCloud will have no liability to the Customer for failure to supply the Service or a Product if
(a) a third person is unable or refuses to supply or delays supplying a service or product to CommuniCloud and there is no alternative available to CommuniCloud at reasonable cost; or
(b) CommuniCloud is prevented by legal or regulatory restrictions from supplying the Service or a Product.
15. Dispute Resolution
The Parties will use all reasonable efforts to amicably resolve any dispute. The Parties will, at a minimum, use the following the procedure in the event a dispute arises with respect to any aspect of this Agreement. Upon written notification by one Party to the other that a dispute exists, working level managers of the respective Parties will attempt in good faith to work out a resolution within thirty (30) days following the day of written notification of a dispute. If an agreement cannot be reached by the end of the aforementioned period, the Parties shall prepare a document containing information that is designed to assist resolution of the dispute containing what has been agreed and what remains in dispute between them. No later than two weeks thereafter, or at some other time as mutually agreed by the Parties, representatives of the Parties at Vice President level or above shall meet to further attempt to resolve the matter or to agree on a course of action to resolve the matter. Such course of action may include use of formal dispute resolution processes, including but not limited to non-binding mediation or binding or non binding arbitration. In the event that the Parties are unable to resolve the matter or agree on a course of action at this executive level within thirty (30) days, either Party shall have the right to pursue legal or equitable remedies as it sees fit. Nothing contained herein shall preclude either Party from seeking equitable relief at any time in a court having jurisdiction under the terms of this Agreement in the event that a risk of imminent harm to that Party exists and no appropriate remedy for such harm exists under the Agreement.
16.1 Except for notices given in accordance with Clause 3.5, all notices given under this Agreement shall be in writing, in the English language, unless the Parties agree otherwise or local law and regulations provide otherwise, and shall be sent by prepaid post, facsimile or by electronic mail to:
(a) the other Party to an Order at the address; fax number or email address set out on the Order;
(b) the other Party to these General Terms and Conditions at the address; fax number or email address set out on the cover page; or
(c) either the Party or any other addressee at any other address that a Party has given to the other for that purpose.
16.2 Notices given under this Agreement are deemed to be given by the sender and received by the addressee:
(a) if sent by prepaid post, three (3) Business Days from and including the date of postage; or
(b) if sent by facsimile, when transmitted to the addressee; but if transmission is on a day that is not a Business Day or after 4 pm in the addressee’s time zone, it is deemed to be duly given and received on the next Business Day; or
(c) if sent by electronic mail, when sent to the addressee.
17.1 Either Party reserves the right to assign all or part of this Agreement at any time to any Affiliate, subject to providing the other Party prior written notice of such assignment. Any assignment to a party other than an Affiliate requires the prior written agreement of the other Party.
17.2 This Agreement will be binding on, and inure to the benefit of, the Parties and their successors and permitted assigns.
17.3 CommuniCloud may subcontract the performance of any of its obligations under this Agreement, but without relieving CommuniCloud from any of its obligations to the Customer. The Customer agrees and understands that it may need to interact directly with such CommuniCloud Party for ordering, provisioning or maintaining the Products or Service as directed by CommuniCloud.
17.4 The Parties acknowledge and agree that the CommuniCloud Affiliates and Customer Affiliates may agree to enter into Schedules or Orders under this PSA for the provision of Products and/or Services in any country or region outside of Australia, and that in all such cases, upon execution of that Schedule or Order:
(a) the provision of that Product and/or Service shall be deemed subcontracted by CommuniCloud to that CommuniCloud Affiliate,
(b) the Parties shall have been deemed to have assigned the benefit received under this Agreement to their respective Affiliates in accordance with clause 17.1, and
(c) the Parties are the only persons who may enforce any and all rights arising out of or in connection with this Agreement and shall have sole conduct of all claims and/or proceedings involving any of their respective Affiliates.
17.5 In respect of the provision of Service in other countries outside of Australia the following additional provisions will apply:
(a) the Customer agrees that on signature of this Agreement the part of this Agreement relating to Service in other countries is assigned to CommuniCloud Pty Ltd or it’s Affiliates; and
(b) the Customer acknowledges that any claims or disputes relating to this Agreement, including any part of the Service assigned must be made against CommuniCloud.
18. Governing Law and Jurisdiction
Unless otherwise agreed in writing, this Agreement and any claims or disputes arising out of, relating to or in connection with it, shall be governed by the laws of New South Wales, Australia. The Courts of New South Wales and their appellate courts shall have exclusive jurisdiction to determine any dispute arising out of or in connection with this Agreement to which the Parties irrevocably submit.
19. Miscellaneous Provisions
19.1 Publicity: Neither Party may publish or use any advertising, sales promotions, press releases, announcements, or other publicity that relates to this Agreement or that uses the trademark, service mark, trade name, logo or other indicia of origin of the other Party or its Affiliates in connection with this Agreement or any Products or Services provided under this Agreement, without the prior written approval of the other Party which shall not unreasonably be withheld.
19.2 Customer Satisfaction Surveys: Each Party agrees to co-operate with the reasonable requirements of the other Party in relation to customer satisfaction surveys organised by or on behalf of that Party.
19.3.1 The Parties agree that Customer Data: (i) hosted on the Customer’s behalf will be held at a location set out in the Service Schedule and/or Service Annex; (ii) may be held on systems and databases used by CommuniCloud help desks, service desks and/or network management centres used for providing the Service and the Products and/or used for billing, sales, technical, commercial and/or procurement purposes. Such Customer data may be located, hosted or managed and access worldwide; (iii) may be transferred by CommuniCloud to a subcontractor or supplier to the extent necessary to allow that subcontractor or supplier to perform its obligations in respect of the Service and/or the Products. CommuniCloud may transmit such Customer Data to the country or countries where the subcontractor or supplier will perform the services.
19.3.2 Unless expressly stated otherwise, terms used in this provision are as defined in the Privacy Act 1988 (Cth). At all times both Parties will comply with their respective obligations under applicable data protection and privacy legislation including the National Privacy Principles in respect of any personal information processed or handled under or in connection with this Agreement. If a Party is an organisation not bound by the Privacy Act, it shall comply with this clause 19.3.3 as if it was so bound.
19.3.3 The Customer shall provide sufficient notice to, and obtain sufficient consent and authorisation, under applicable laws (including National Privacy Principles 1.3 and 9), from the individuals concerned to permit the processing of their personal information by the Customer and CommuniCloud, their respective Affiliates and CommuniCloud Parties as contemplated by this Agreement. The Customer agrees that, to the extent permitted by law, CommuniCloud will not be liable for any complaint, claim or action brought by an individual concerned arising from any action or omission by CommuniCloud to the extent that such action or omission resulted from any failure by the Customer to comply with this Clause 19.3.The Customer shall indemnify, hold harmless and defend CommuniCloud from and against any claims or actions brought against CommuniCloud arising out of such failure.
19.3.4 To the extent that any processing of personal data under this Agreement is subject to the EC Data Protection Directive (95/46/EC) and/or EU member state enacting laws, the Parties agree and acknowledge that:
(a) the Customer is the controller and CommuniCloud is the processor in respect of any personal data contained in the Customer Data and processed by CommuniCloud under this Agreement; and
(b) CommuniCloud will only process this personal data to the extent necessary to deliver the Services or in accordance with the instructions of the Customer. Terms used in this clause 19.3.5 are as defined in the Directive.
19.4 Legal and Regulatory Compliance:
19.4.1 Each Party will comply with all laws and regulations that apply to its activities under this Agreement, including any that apply to the Products and Services provided under this Agreement.
19.5 Anti-Corruption and Bribery Act Compliance: In connection with any actions or activities associated with this Agreement or in connection with the relationship between the Parties, neither Party shall engage in any unlawful trade practices or any other practices that are in violation of the U.S. Foreign Corrupt Practices Act, the
U.K. Bribery Act of 2010, or any other law that prohibits bribery or similar activity. Each Party shall ensure that neither it nor its Affiliates, subcontractors and agents: either directly or indirectly, seek, receive, accept, give, offer, agree or promise to give any money, facilitation payment, or other thing of value from or to anyone (including but not limited to government or corporate officials or agents) as an improper inducement or reward for or otherwise on account of favourable action or forbearance from action or the exercise of influence; or fail to establish appropriate safeguards to protect against such prohibited actions. Each Party shall, upon request from the other Party, provide evidence of the steps being taken to avoid prohibited actions, including the establishment of policies, practices, and/or business controls with respect to these laws. To the extent permitted by the relevant authority, each Party shall promptly inform the other Party of any official investigation with regard to alleged breaches of the above laws that are related in any way to this Agreement.
19.6 Export Control: The Parties acknowledge that Products, Software, and technical information (including, but not limited to, service, technical assistance and training) provided under this Agreement may be subject to export laws and regulations of other countries, and any use or transfer of the such Products, Software, and technical information must be in compliance with all applicable regulations and international trade sanctions. The Parties will not use, distribute, transfer, or transmit the Products, Software, or technical information (even if incorporated into other products) except in compliance with all applicable export regulations and trade sanctions. If requested by either Party, the other Party also agrees to sign written assurances and other export related documents as may be required to comply with all applicable export regulations.
19.7 Australian Regulatory Compliance: Where Regulated Service(s) are to be provided within Australia under this Agreement, the terms and conditions and prices for Regulated Service are published on CommuniCloud’s website at www.communicloud.com and may be amended by CommuniCloud from time to time. For the avoidance of doubt, the terms and conditions and prices published on CommuniCloud’s website for Regulated Service, and any amendments thereto, shall govern the provision of Regulated Service to the exclusion of all other terms and conditions and prices in this Agreement. If CommuniCloud is required in order to comply with law or regulation to modify the Service or amend the terms and conditions or prices, CommuniCloud reserves the right to do so and notify the Customer as soon as possible of any such modification and any terms and conditions (including Charges) associated with such modification, except in the case of Regulated Service where any such changes will be published as set out in this clause. If a legal or regulatory intervention or ruling of any sort prevents the accomplishment of the purpose of this Agreement, the Customer and CommuniCloud shall immediately commence good faith negotiations to explore whether a similar economic effect can be obtained consistent with the applicable legal or regulatory requirements. The delay or failure by CommuniCloud to perform any of its obligations under this Agreement that is caused by or materially contributed to by a restriction of a legal or regulatory nature that affects, wholly or partly, the provision of the Service, shall not constitute a breach of this Agreement.
19.8 Non-Australian Regulatory Compliance: Where Regulated Service(s) are to be provided outside of Australia under this Agreement, the Parties shall comply with the terms and conditions and prices, if applicable, of any applicable tariffs, regulations, or statutes. In the event of changes to such tariffs, regulations, or statutes during the term of any Order for such Regulated Services, such changes shall be effective pursuant to their terms. If a legal or regulatory intervention or ruling of any sort prevents the continued provision of any Regulated Service or materially changes the Regulated Service so that it is no longer consistent with the purpose of this Agreement, CommuniCloud shall promptly commence good faith discussions with the Customer on any alternative Service or on any appropriate migration away from that Regulated Service so as to minimise any disruption to the Customer.
19.9 Where CommuniCloud acts as Custome’s Agent for Third Party Service: It may be necessary in certain jurisdictions, including for regulatory, licensing or tax reasons, for the Customer to obtain the Service, or part of the Service, directly from a third party service provider under a separate agreement. Where CommuniCloud manages such agreement on behalf of the Customer, it will only do so as an agent of the Customer whereby CommuniCloud’s responsibility will be limited to performance of the specific obligations as set out in the applicable Schedule, and CommuniCloud will not assume any liability under such agreement.
19.10 Capacity: Each Party warrants that it has the necessary rights, licences and permissions to enter into and perform its obligations under this Agreement.
19.11 Sales of Goods: The Parties agree that the UN Convention on the Sales of Goods shall not apply to this Agreement.
19.12 Inducement: The Parties acknowledge and agree that they have not been induced to enter into this Agreement by any representation, warranty or other assurance not expressly incorporated into the agreement, except that nothing in this clause shall limit or exclude any liability for fraud.
19.13 No Waiver: Except as otherwise specifically provided in this Agreement, no failure to exercise, or delay in exercising, any right, power or privilege set out in this Agreement will operate as a waiver of any right, power or privilege.
19.14 Severance: If any provision of this Agreement is held to be invalid or unenforceable, it will be severed from this Agreement, the remaining provisions will remain in full force and effect, and the Parties will use reasonable endeavours to promptly negotiate a replacement in good faith.
19.15 Survival of Obligations: The Parties’ rights and obligations, whose nature is such that they should continue beyond the termination of this Agreement, shall survive termination of this Agreement.
19.16 Entire Agreement: This Agreement supersedes all prior oral or written understandings and/or representations between the Parties (unless specifically incorporated into this Agreement) and constitutes the entire agreement with respect to its subject matter. This Agreement may not be amended, modified or supplemented except by a document in writing signed by authorised representatives of both Parties executing these General Terms and Conditions. The Parties to an Order may amend, modify or supplement the terms of that Order by a document in writing executed by authorised representatives of both Parties to that Order.
Standard Form of Agreement - Terms & Conditions V2.0-201219
In conjunction with CC, C3 Innovations (we or us) will supply You (or Your) with telecommunications and data services (‘Services’) on the terms and conditions below. These terms and conditions are a Standard Form of Agreement formulated for the purpose of Section 479 of the Telecommunications Act 1997.
1.0 Our Agreement with You
1.1 As an End User of CC and C3 Innovations Services these terms and conditions form the basis of our agreement to supply Services
1.2 Our agreement with you also includes any application form which you complete and provide to us. We may accept and rely on a facsimile or scanned email copy of the original application form as if it was an original.
1.3 Our agreement with you also includes our currently applicable price list. The price list may change from time to time, but we will notify you of any changes when they happen. Copies of the price lists are available from us on request.
2.0 Service Description
2.1 We will provide the telecommunications services as indicated in the Application including our online service to you in Australia through such Carrier or supplier network or networks as we nominate from time to time directly with the Carrier, supplier or network operator (the ‘Carrier’ or ‘Supplier’). Where carriage is supplied, the quality of the carriage of the Services will be the same as that of the carrier or supplier.
2.2 Where we are providing mobile services, we will connect your mobile phone to the network as soon as it is reasonably practicable after our acceptance of the application and its attachments (‘Application’) and we will use all reasonable efforts to maintain the connection while you comply with this Agreement.
2.3 Where we are providing mobile services, we will provide you with a C3 Innovations SIM card to use in relation to the Services. Notwithstanding clause 18, the SIM card remains the property of C3 Innovations.
2.4 Where we are transferring mobile services under mobile number portability arrangements, the SIM card provided in relation to the services will be activated upon your request for activation. If no such activation request is received within 15 business days of dispatch, we will activate the SIM card on your behalf.
2.5 Where we are providing data services, the ADSL and or SHDSL access component of the relevant data service and, optionally, a rented CPE router, are supplied to us by a third party(s) as a wholesale supplier.
2.6 You must not re supply any of the Services without our expressed agreement in writing. 2.7 Where we are providing C3 Innovations IP Voice to you, your use of it is governed by both the terms within this Agreement and the Terms and Conditions. Where there is any exclusion or inconsistency between the Terms and Conditions of C3 Innovations and the Agreement, the latter shall prevail, to the extent of any such exclusion or inconsistency.
3.0 Use of Services
3.1 You are responsible for the use of the Services at Your premises and from the Service Delivery Point (means the point and/or location at the End User Premises at which the Equipment and/or the End User’s equipment and/or communications network connects to the Services), even unauthorized use. This means that if someone uses the Services without Your knowledge or consent, you are liable for all costs arising from that use.
3.2 You must not use the services and must use your reasonable endeavours to prevent any other person form using the Services:
3.2.1 to break any law or infringe any copyright or any person’s rights;
3.2.2 to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
3.2.3 in any way that damages or interferes with or interrupts the Services of the systems that C3 Innovations uses to supply the Services.
4.0 Your Responsibilities for C3 Innovations IP Voice Services
4.1 You must:
4.1.1 permit C3 Innovations employees, agents or contractors to have reasonable access to your Premises to install the Equipment (means any equipment supplied by C3 Innovations to You and required for the supply of the Services) and the Network Access line (means the dedicated access line between your Premises and our network supplier or between two or more of your Premises, used in connection with the Services);
4.1.2 ensure that C3 Innovations has full and unhindered access to the Equipment during normal business hours or at such other times as you and C3 Innovations agree;
4.1.3 ensure that any equipment used in connection with the Service that is not supplied by C3 Innovations has all the necessary approvals, is not prohibited by law
or any Regulator and is capable of operating with the Services;
4.1.4 not cause or permit any Equipment to be altered, repaired, serviced or moved except by service personnel approved by C3 Innovations;
4.1.5 ensure, at your own cost, that the Equipment protected from power surges and is located in a suitable physical environment for the operation of the Equipment;
4.1.6 ensure at your own cost that you have all the equipment and software necessary (whether by firewall or by any other means) to protect from any external attack the security and integrity of the configuration of the Equipment;
4.1.7 use all reasonable endeavours to assist C3 Innovations in any investigation by any government body or Regulator in which C3 Innovations is involved where your use of the Services is relevant to the investigation regardless of whether or not you are required by law to assist.
4.2 If, when C3 Innovations employees, agents or contractors attend by arrangement at your Premises to:
4.2.1 inspect your Premises to establish the method or location of installation of the Equipment or the Network Access Line; or
4.2.2 install the Equipment or the Network Access Line, no provision has been made by you for that inspection or installation and that inspection or installation has to be rescheduled, then you shall pay to C3 Innovations all costs associated with cancelling, postponing or rescheduling that inspection or installation.
5.0 Fault Reporting
5.1 You may report a fault with the Services to C3 Innovations at any time in accordance with clause 5.
5.2 Prior to reporting a fault, you must investigate and ascertain for yourself the cause of the fault and, if required by C3 Innovations, provide any further information in relation to the fault, including what you have done to satisfy this clause.
5.3 Upon being notified of a fault, C3 Innovations will immediately assign a reference number to the fault and will issue that reference number to you. You must use and quote that reference number in relation to any dealings with C3 Innovations in respect of that fault.
5.4 C3 Innovations will use all reasonable endeavours to rectify the fault within the time lines set out in any Service Level Agreement.
5.5 You acknowledge that if a fault has been caused by the services or network of any Other Supplier, C3 Innovations shall not be liable to the End User for any failure by that Other Supplier (meaning a Carrier, a telecommunications carriage service provider or an equipment supplier other than C3 Innovations) to remedy the fault within the time lines set out in any Service Level Agreement.
5.6 When C3 Innovations has remedied the fault, it will notify you that the fault ticket is “closed”.
5.7 If C3 Innovations determines that:
5.7.1 a fault arises out of or in connection with any equipment, facilities, networks or systems of yours; or
5.7.2 there is or was no fault, then C3 Innovations may require you to pay C3 Innovations’ reasonable costs and expenses (based on C3 Innovations’ standard rates) in dealing with or resolving a fault, and such cost and expense shall be a debt due and payable by you on demand to C3 Innovations.
6.0 Software Licence
6.1 C3 Innovations warrants to you that it owns or has the right to grant sub- licences of the software required to support the Services described in a Service Schedule.
6.2 C3 Innovations grants to you, for use in your own business and on the Equipment, a non-exclusive, personal and non-transferable licence, without right to sub-licence, to use the software required to support the Services described in a Service Schedule.
6.3 Subject to this Agreement, the licence to use the software pursuant to clause 6.1 will continue for the Agreement Period.
6.4 You must:
6.4.1 treat the software as Confidential Information under clause 39 of this Agreement;
6.4.2 use the software or any portions or aspects thereof (including any methods or concepts utilized therein) solely on the Equipment;
6.4.3 return to C3 Innovations all memory media, documentation and/or other material that has been modified, updated or replaced;
6.4.4 not modify, disassemble or decompile the software, or reverse engineer any part of the software or permit others to do so; and
6.4.5 not reproduce or copy the software in whole or in part except for backup and archive purposes.
7.0 Charges & Payment
7.1 Charges for the services are determined in accordance with the Rate Plan or such other manner specified in the application. We may change the amount of these charges or add new charges from time to time in accordance with clause (13). You will be invoiced for all calls, services, usage or other charges on a monthly basis with 14 days trading terms for payment of accounts thereafter. You must pay all invoiced amounts by the date specified on the relevant invoice. Charges that do not appear on your monthly invoice may appear on future accounts due to processing procedures. Should a monthly term not be stated then the minimum term of 12 months will apply.
7.2 Where we are providing mobile services monthly, you must also pay us:
(a) Charges for calls you have made to the extent those charges exceed the Minimum Monthly Spend as set out in the Application; and
(b) Charges for value added services you have used.
7.3 Any charges billed to you after the cancellation date from your previous service provider will be due and payable by you to that provider.
7.4 Our charges to you may involve fees for connection, initiation or cancellation of any services.
7.5 In relation to Mobile Services, you accept that you are responsible for all calls made from your handset, including any calls made in error. Most mobile phone handsets have a keypad lock function to prevent accidental use. It is your responsibility to take adequate precautions to avoid accidental use.
7.6 Accounts overdue may incur interest on the overdue amounts at 3% above the per annum National Australia Bank Overdraft Reference rate applicable at the date of the bill calculated daily. An initial $30 (ex GST) late payment will be applied to your account.
7.7 We may, upon reasonable notice, deactivate or cancel all or part of your service if any amount is not paid by its due date. We reserve the right to restrict any Service at any time if we feel the account has gone over its credit limit or the service appears fraudulent. Discounts may also be revoked during the overdue period. Pricing may revert to the C3 Innovations Standard rates. If any amount has not been paid by the due date we reserve the right to deduct any unpaid amount (or part thereof) from your credit card or charge card nominated on the application form. If you have nominated automatic direct debit, your bank account or credit card will be charged 14 days from the invoice date.
7.8 Delivery of archived invoices is available upon request in PDF format. Also available via your online portal at www.C3 Innovationsinnovations.com.au
7.9 Personal information
-If you default under this agreement, we may use or disclose any personal information collected and recorded in relation to you to assist us in the process of debt recovery.
- Personal information includes personal identifying details such as your name, address, date of birth, employers and driver’s license details and status of any of your accounts or related bodies corporate, your credit history, and information about your credit worthiness or capacity.
7.10 All payments made using either American Express or Diners Club credit cards will be subject to a 3% surcharge.
7.11 All payments made using a Visa, MasterCard or Bankcard will be subject to a 1.65% surcharge.
7.12 In consideration of us having agreed to supply the services to you to on supply to you as an End User, the person signing this agreement on your behalf (“the signatories”) hereby jointly and severally guarantee the payment on demand of all monies which are or shall hereafter become due to us by you. This guarantee shall be a continuing guarantee and shall not be affected by us giving time or any other indulgence to you, nor shall any of our rights to sue or report your details to a credit reporting agency be affected.
7.13 If you do not pay the account by the due date we reserve the right to place the outstanding amount due in the hands of a Registered Collection Agency for debt recovery. At this time they will assume the responsibility for collection of the outstanding amount and such amount owing will be liable to a 20% surcharge or actual legal costs to cover recovery charges.
Unless expressly stated otherwise, the charges payable for the services under this agreement are exclusive of GST. You must pay to C3 Innovations in addition to the charges, for the services, an amount equal to any GST payable on the supply of the services. That additional amount is payable at the same time any part of the charges for the services is payable. C3 Innovations will issue a tax invoice to you for the supply of those services at or before that time.
9.0 Disputed Amounts
9.1 In the event that a bill is disputed by you, you agree to pay to us the entire total amount as indicated on the disputed bill without deduction or set-off and we agree to refund any monies found to be charged incorrectly after reasonable and proper investigation.
9.2 If a billing dispute is not raised within 30 days of the bill issue date, charges will be deemed correct and payable by the End User and any backdate/credit of these charges if required will not exceed a 30 day period.
10.0 C3 Innovations’ Refund Policy
C3 Innovations‘s policy in relation to refunds is that there are no refunds after purchase is made.
11.0 Transfers to Us
11.1 In providing the services, we need to change your arrangements with your current supplier and we will do so in accordance with this clause.
11.2 By signing this Agreement or any other Agreement for the provision of communication services by us:
- You authorise us to sign on your behalf and in your name, forms of authority to your current supplier of telecommunications services to transfer the services into our name.
- You will on request yourself give written
instructions to your current supplier to transfer the services from your name to C3 Innovations’.
- You will immediately pay to your current supplier all amounts owing to it for the services being transferred up to the time of transfer to our name.
11.3 You agree that for us to provide services to you through our online application at www.C3 Innovationsinnovations.com.au you or your nominee will constitute agreement by both Yourself and Your nominee to our terms and conditions. You and your nominee agree to use C3 Innovations solely as provided by these terms and conditions. You should ensure that both you and your nominee have read and understood these terms and conditions.
12.0 Transfers from Us/Relocation
12.1 If in the future you ask us to transfer any of the services to another supplier, then you remain responsible to us for the amount payable for the services up to the time when we transfer those accounts to another supplier, and you will immediately pay us that amount on receipt of our invoice.
12.2 The provision of services ceases when we transfer those accounts to another supplier. 12.3 We will bill you for those services within the next normal billing period.
12.4 If your services are under Agreement and you relocate your premises your Agreement will recommence for a minimum 24 month period from the date of the relocation being completed.
12.5 If after we become aware of any other proper charges (including fees payable to any other supplier) for those services up to the date of transfer, then you will immediately pay us all such amounts on receipt of our invoice.
12.6 If C3 Innovations has programmed an override codes into your phone system or PABX, then calls may continue to be billed by C3 Innovations. In this situation you are liable to C3 Innovations for all related call costs and it is your sole responsibility to remove or change the override code at your cost to allow calls to go through to your new supplier.
13.0 Amendments to these Terms & Conditions
13.1 These Terms & Conditions, including charges for services and/or method of calculation may be varied, altered, replaced or revoked at any time by our giving a minimum of 30 days’ notice to you by email, mail or as an amendment detailed on the monthly invoice to you.
13.2 Without notice, we may at any time, change the carrier or supplier, or the carrier’s or supplier’s products.
14.1 You consent to us and our carriers or suppliers exchanging your information and or details and the carrier or suppliers, ourselves and our respective related bodies corporate may all use your details for our own purposes.
14.2 You authorise the carrier or suppliers to disclose to us all records, and in particular exchange line details, telephone accounts information, call charge records and call event records.
15.0 Credit Check
15.1 You will supply without delay all the necessary information to check the worthiness of your credit rating.
15.2 If we consider it relevant to assess this application, you agree to us obtaining from a credit-reporting agency a credit report containing personal information about you.
15.3 If your organisation is a Trust or member of a Trust you may be required to complete a Trust Compliance Form.
15.4 You agree that we may give to any credit provider and/or credit-reporting agency any information contained in the Application. You also agree that we may seek from any credit provider and/or credit reporting agency any credit report on all parties named in the Application. You acknowledge and understand that such information can include any information regarding your commercial or consumer credit worthiness, credit history or credit capacity that credit providers and/or credit reporting agencies are allowed to give or receive under the Privacy Act.
15.5 You authorise and permit us to make independent enquiries of third parties concerning your financial standing and for this purpose, authorise and permit third parties to supply such information regardless of any confidentiality or privilege which applies to the information sought.
15.6 If the ownership of your business, our End User, changes involving change of directors or owners then C3 Innovations reserves the right to request a new Application Form is signed and the new owners be subjected to a credit check. C3 Innovations reserves the right to withhold services to the new owner if they fail to meet our credit terms.
16.0 Limitation of Liability
16.1 To the full extent permitted by law and subject to clause (14.2), we will not be liable in any circumstances, however arising, to you or any person claiming through you in contract, tort, or otherwise (including negligence) for:
16.1.1 Any economic loss or damage and in particular (without limitation), any loss of revenue, profits, actual or potential business opportunities, contracts or anticipated savings of profits; or
16.1.2 Any indirect or consequential loss; or
16.1.3 The acts of omissions of the carrier or any of our servants, officers, agents, contractors or subcontractors or the failure of, or fault or defect, in any contractors of subcontractors or the failure of, or fault or defect, in any telecommunications service, network, facilities, equipment or service, used by Us in supplying telecommunications services; or
16.1.4 Our failure to continue to provide the service to you for any reason whatsoever. You acknowledge that we do not guarantee continuous fault free provision of the service.
16.2 C3 Innovations will not be liable for any consequential, direct or special loss resulting from the unavailability of any service due to any outage that is beyond our control.
16.3 C3 Innovations strongly recommends redundant internet connections for mission critical applications and services. It is the End User’s responsibility to ensure such steps are taken to avoid any loss.
16.4 We accept liability to you in respect of any rights conferred on you by the Consumer and Competition Act 2010 and similar legislation where not to do so would be illegal, or would make any part of clause (11.0) void or unenforceable. Otherwise, we exclude all conditions and warranties implied into the agreement and limit our liability for any non- excludable conditions and warranties, where permitted by law to do so, at our option, to:
16.4.1 In the case of services:
(i) the supply of the services again or
(ii) the payment of the cost of having the services supplied again; and 16.4.2 In the case of goods:
(i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods or
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods.
16.5 You agree to indemnify and keep indemnified from and against liability and all loss and damages caused directly or indirectly by any breach of this agreement by you or any claim or action arising directly or indirectly out of any negligence or wilful act of yours or any of your servants, offices, agents, contractors or subcontractors.
16.6 To the extent permitted by law, you agree that your indemnity shall survive the termination of this agreement, against any actions, claims, expenses, demands, costs, damages, proceedings or any other liability whatsoever suffered by us in connection with you using the services or CPE including, without limitation, you using or incorporating the services or CPE in other products used by you or supplied to you.
17.1 Any equipment you use in relation to the services must comply with applicable standards and specifications, including those set by the carrier or supplier.
17.2 Risk in any equipment provided to you by us or by the carrier or any third party (‘Equipment’) passes to you upon delivery.
17.3 Title to any equipment does not pass to you until all amounts owing have been paid in full to Us or the carrier under this Agreement and the cost of such equipment will be held by you in a fiduciary capacity as Bailee for us.
17.4 You irrevocably grant to us, our agents and servants, leave and license without the necessity of giving any notice, to enter at any time on and into premises occupied by you using reasonable force if necessary to inspect, search for and re-take possession of any equipment in respect to which payment is overdue.
17.5 On the termination of this Agreement for any reason, you will immediately return all of our equipment.
17.6 Where we are providing mobiles services, you must notify us immediately if there is any problem with the service or SIM card or if your mobile phone or SIM card is lost or stolen.
18.0 Installation & Programming of Equipment
18.1 Where we are providing fixed wire services, you will assist us in ensuring that any equipment necessary for you to receive the services and access our network is installed and programmed so that calls to destinations nominated by us from time to time are, as far as possible, carried by our preferred switched services network.
18.2 Where we are providing data and or DSL services, you will assist us in ensuring that any equipment necessary for you to receive the services and access our network is installed and maintained. C3 Innovations supplies all modems pre-configured to work on the relevant C3 Innovations DSL service. Any alterations of these settings will leave you liable for charges at $180 (ex GST) per hour for resetting or reconfiguring of the modem by C3 Innovations.
19.0 End User Premise Equipment, meaning PABX, Telephone, IP Handsets/Switch/Router or Key System, Software, Block-up converter, and other cable, mountings: CPE
19.1 Subject to the payment or contracted monthly service fee for the CPE, we will provide you with CPE as reasonably necessary for installation and which we provide to you to use with the relevant access (using data, PSTN or other telecommunication access medium) service(s), and any associated documentation to your premises specified in the relevant Application or Order Form. We may substitute any component of the CPE or part of any component of the CPE prior to delivery without consultation with you and may in any respect modify the CPE if, in the reasonable opinion of us, the substitution or modification:
(a) Will not adversely affect the performance or capacity of the CPE in any material respect (b) Will not alter the configuration of the CPE in any material respect; and
(c) Will not otherwise materially affect the obligations of us or prejudice the rights of you under this agreement.
20.1 (a) We will use our best endeavours to deliver the CPE to you on the Delivery Date at the site during your normal business hours.
(b) If you wish the CPE to be delivered to a location other than the site, you shall make a request in writing to us not later than 14 days (or such other period as is agreed between us and you) prior to the Delivery Date. We may at our sole discretion determine whether to agree to such a request and what conditions, if any, shall apply in the event of us agreeing to such a request.
(c) If you request delivery of the CPE to be made in advance of the Delivery Date or postponed beyond the Delivery Date, we shall use reasonable endeavours to re-schedule delivery accordingly but shall otherwise be under no obligation to comply with your request.
(d) In the event that we accede to a request made by you pursuant to clauses (b) and (c) of Clause 31.1, we may make such additional charge as we reasonably considers to be appropriate to reflect the direct impact upon our resources in complying with such request.
(e) If we request permission to deliver the CPE prior to the Delivery Date, you shall use your best endeavours to prepare the site and to do all other things necessary to accept early delivery.
(a) We or an approved contractor shall install the equipment at the site on the Installation Date. In the absence of agreement to the contrary, the installation shall be effected during our normal business hours.
(b) You shall at your own expense prepare the site, and access to the site, prior to delivery. In doing so, you shall comply with any directions or specifications issued by us.
(c) Without limiting the foregoing, you shall ensure the supply at the site of:- (i) Adequate electric current for the continuous use of the CPE;
(ii) Adequate electrical and mechanical fittings;
(iii) Appropriate environmental conditions; and
(iv) Provide all relevant facilities for the location of the CPE at your premises;
(vi) Provide us with access to all relevant personnel including your technical and other personnel;
(vii) If you do not own the Premises notify the relevant owner and/or lessor and obtain the owner’s and/or lessor’s permission for us and our representatives and agents to enter the Premises; and install the CPE, including making any minor physical modifications contemplated for the purposes of providing the telecommunication or data service(s). You warrant to us that at the date of installation you will have notified the relevant party and obtained all relevant consents and you indemnify us against any claim made against us, or loss incurred (including legal costs on a full indemnity basis), by another person in connection with such entry and installation.
(d) We shall, upon request from you, supply such information and assistance as we consider reasonable and necessary to enable you to prepare the site.
(e) Notwithstanding the foregoing, we shall, if requested by you and at your expense inspect the site prior to delivery for the purpose of providing an opinion as to whether the site is suitable for delivery and installation of the Equipment.
(f) Where we reasonably determine the requirements for installation exceeds reasonable expectations for any Installation Fee quoted or agreed with you, we will not be bound to provide the installation at the Installation Fee previously quoted or agreed and we agree to discuss and use our respective reasonable endeavours to agree a new Installation Fee; and subject to Our completing the assessment in clause (e) to our satisfaction; You are responsible for all other things not included within the installation.
(g) You agree to obtain and maintain, at your expense, any and all permits, licences, approvals, authorisations, including local council planning approval required for the installation and operation of the CPE;
(h) In the event that you are relocating your Premises and as a result, your CPE, we may, upon your request, allow you to move the CPE from the Premises to new premises during the Term so that you can continue using the service(s) at the New Premises, subject to:
(i) Our being able to provide the service(s) at the New Premises;
(ii) You agreeing that these Terms and Conditions apply to the provision of the service(s) at the New Premises; and, (iii) You pay all costs incurred by us as a result of you having the CPE moved.
22.0 Exclusions and Maintenance Services
(a) You acknowledge that the CPE does not include the goods and services specified as excluded or not included in the quotation;
(b) You may upon request to us, request that we supply additional services including without limitation, inspection, repairs, adjustment and replacement of unserviceable or defective parts not subject to the limited warranty given in respect of the CPE;
(c) If agreed to by us, additional services will be provided on a time and materials basis charged at our standard rates in effect from time to time and on terms agreed to between us and you; and
(d) Unless agreed in writing, any subsequent agreement to provide additional services between you and us will not modify or vary the Terms and Conditions of this agreement.
23.0 Title and Risk
(a) Title in the CPE will not pass to you until all monies owing by you to us have been paid in full.
(b) You shall return the CPE to us on demand at any time prior to payment of the monies owing to us in full and immediately following the making of a demand we shall be entitled to enter your premises for the purpose of retaking the CPE and may resell the equipment to another person.
(c) Notwithstanding Clause 17, risk of loss or damage to the CPE passes to you upon delivery of the CPE to the site.
(d) Title in all intellectual property rights including without limitation, copyright and trade marks in and to any manuals or user documentation supplied with the CPE shall at all times remain the property of us.
24.0 Limited Warranty
(a) We warrant that the CPE is in good working order.
(b) We warrant that at the date of this agreement we believe the CPE to be free from defects in materials and workmanship.
(c) You may during the Warranty Period notify us in writing of any defect or suspected defect in the CPE. We shall, to the extent necessary, inspect, replace or repair the CPE at no additional charge and as soon as practicable after receiving written notice from you.
(d) We shall not be liable under clause 17 if the defect is the result of:-
(i) Improper use or mismanagement of the CPE by you;
(ii) Operation of the CPE other than in accordance with the instructions given by us;
(iii) Use of the CPE in a manner not reasonably contemplated by us;
(iv) Modification of the CPE not authorised by us;
(v) Use of the CPE in a manner contrary to law;
(vi) Subjecting the CPE to unusual or not recommended physical, environmental or electrical stress;
(vii) Reinstallation or moving of the CPE by a person other than us; (viii) Use of the CPE by a person other than you;
(ix) Your failure to comply with any terms of this agreement; or
(x) Your failure or refusal to install engineering
changes or enhancements recommended by us.
(e) If you provide a notice of a defect or suspected defect pursuant to clause 17 and any subsequent inspection of the CPE by us reveals no defect, the direct and indirect costs and expenses associated with such inspection shall be borne by you as an additional charge.
(f) You agree that the warranty in this clause may, at our option, be varied or replaced by specific warranty conditions issued in respect of the CPE.
25.0 Term of the Agreement, Complaint Handling, TCP Code, Suspension, Cancellation, or part Cancellation of a Product, or Termination
25.1 In respect of each service set out in the application, this agreement will commence on the date of its signing by you and will continue in relation to that service until:
25.1.1 Expiry of the Agreed Term selected for the service on the application beginning when the service is delivered; and
25.1.2 For further consecutive periods of 12 months, unless terminated two months prior to the expiry of any such period, or it is otherwise terminated in accordance with this clause.
25.2 The period in which the Agreement is effective in accordance with clause (12) shall be the Agreed Term and Specific service term from delivery.
25.3 Any new Services requested to be added to your account will be contracted for an additional 36 month Term from the date such Services are activated by our provisioning team unless otherwise stated on your order form;
25.4 We may terminate this Agreement if you breach any term or condition of this Agreement or if a receiver or receiver and manager is appointed over any of your property or assets, or if a liquidator or provisional liquidator is appointed to you or if You enter into any arrangement with your creditors or you assign or otherwise deal with your rights under this agreement without our prior written consent or, in the case of an individual, you die.
25.5 We may suspend the services or any of them at any time without notice if any of following occur:
25.5.1 We are not satisfied with our credit assessment of you;
25.5.2 If you breach any of the Terms and Conditions of this agreement your services will be suspended. If you have failed to remedy the breach within 10 days of us providing written notice to you of the breach your service will be terminated;
25.5.3 You fail to pay amounts owing to us by the due date;
25.5.4 We are unable, for any reason including the default of a carrier, to provide the whole or part of the service;
25.5.5 You become subject to any form of insolvency administration.
25.6 If you request reactivation of services that have been suspended due to lack of payment we reserve the right to request a bond up to $30,000.00 which is to be applied to the first account issued following reactivation and payable by the due date of that invoice. This will be held until the conclusion of the Agreement period or 12 months, whichever is the greater.
25.7 If you churn your services to another carrier all bond monies will be refunded by cheque within 14 days of the account being finalised.
25.8 If we suspend the services, you will still remain liable for all monies due to us under the agreement, during the period of such suspension.
25.9 If your service has been suspended by us due to non compliance with the Terms and Conditions of the Agreement a fee of $75 (ex GST) is payable to reactivate each service.
25.10 If this agreement is cancelled by you, or terminated by us:
25.10.1 Any right which we have in respect of your obligations under the Agreement that are not fulfilled when the Agreement is ended, will continue to exist;
25.10.2 You must pay us all reasonable costs and expenses incurred by us in relation to the Agreement ending;
25.10.3 Where we are providing mobile services:
(i) All of your rights to receive the services from us will end and you must return to us the SIM card that we provided to you;
(ii) You must pay amounts due at the time the agreement ends, including the balance of the Minimum Monthly Spend amounts for all months up to the end of the Agreed Term.
(iii) If we are supplying a SIM only service and you terminate the service before the agreement ends an early termination fee of $500.00 per service is payable to us
25.10.4 Where we are providing data, IP Telephony and or DSL services, you must pay amounts due at the time the agreement ends, including the balance of the Monthly Service Fees as set out on the application, for all months up to the end of the Agreed Term.
25.10.5 In addition to any liabilities arising under this clause and where we are providing fixed wire services, if you terminate the services before the expiry of the Agreed Term or such lesser time as is agreed in writing by you and us, then you will pay us an early termination fee based on a genuine estimate of the loss (Early Termination Fee) we will incur from the early termination of this agreement. The amount of the Early Termination
Fee will be the amount of services and equipment charges billed per month for all the months up to the end of the agreed term.
25.11 Where you have entered into an agreement to purchase 2 or more of the following products from us: Mobile GSM, Fixed Wire (Inbound, Long Distance and Local), C3 Innovations IP Voice, Video and Voice Conferencing or ADSL, and during the term of your agreement you cancel the supply of one of the aforementioned products, the pricing of the remaining product(s) or service(s) will revert to the non-bundled (or non-discounted), and thus adjusted rate for the service that we continue to supply to you for the remainder of the agreement.
25.12 Where we are providing Data services, if this agreement is terminated in accordance with this clause, the carrier may arrange for you to be supplied by the carrier with the carrier’s services that had been supplied by us, but you acknowledge that the carrier may not be able to make those arrangements immediately and once the carrier makes those arrangements, those services acquired by you will be acquired on the then current carrier’s tariff and terms and conditions and the carrier will bill you accordingly.
25.13 Complaint Process. Upon acceptance of a complaint via phone, fax, email or letter we will register the complaint in our CRM. Acknowledgement of the complaint will be advised in writing within two working days. We will endeavour to resolve a complaint on the first contact, in cases where additional information is required from a third party we will notify you should the complaint not be able to be resolved within 15 working days.
25.14 If we are unable to resolve your complaint, you may contact the Telecommunications Industry Ombudsman (TIO).
25.15 Telecommunications Consumer Protections (‘TCP’) Code. The “TCP Code” applies to consumer End Users. A consumer End User is a person who acquires a Consumer Product for the primary purpose of personal or domestic use.
25.16 Variations arising from our Partner agreements. If a variation results from an amendment to our agreement with a Partner whose service we resell to you: We shall give you written notice of the variation. We shall give the notice by email or in a bill. We will also offer you the right to terminate your Contract within 42 days of the date of the notice without incurring charges other than: usage or network access charges to the date your Contract would have ended; and outstanding amounts for installation of Equipment; and outstanding amounts for Equipment that is compatible with other supplier’s services.
25.17 If we terminate or suspend our agreement with CC then you will continue to be eligible for Services directly from Us at our election and we will continue to provide you with Services and bill you directly. Failure to pay an invoice to Us may result in immediate suspension and cancellation of the Services.
26.0 Removable Discount
If we provide a service at a discount on payment over a set term and you cancel the service or terminate the agreement before that term ends, then you will be liable to pay the for service billed at C3 Innovations’ Standard Rates for the period prior to cancellation and termination. We will bill you for the amount of the discount allowed to you during the elapsed period on your next bill.
27.0 Communications & Content
27.1 You are responsible for the content of the messages you communicate when using our services as well as the consequences of those messages. You agree that you will not use our services to engage in activities that are illegal, obscene, threatening, defamatory, invade privacy, infringe intellectual property rights, or otherwise injure third parties or are objectionable. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead others or us as to your identity. We reserve the right to suspend or terminate the service in the event of a breach of this clause and in such cases you will be responsible for any costs associated with suspension or termination of the service.
27.2 We believe that any correspondence or emails from C3 Innovations or its related parties are a valuable part of our service as they enable you to keep up to-date with matters regarding Internet security, viruses, useful tools, promotions, sites of interest and other related matters. The correspondence and emails do not constitute Spam as we have a continuing business relationship with you. However, if you do not want to receive such commercial communication from Us please contact us to unsubscribe, otherwise we will continue sending you relevant information until you request us to remove your email address (this does not affect other electronic communications specifically regarding the provision of the service of your account).
28.0 Use of Mobile Phone Overseas (Roaming)
28.1 Where we are providing mobile services, if you use a roaming service overseas in connection with your mobile phone, you agree to pay all call charges in connection with the provision and use of the roaming services, including local taxes and surcharges. We may require you to pay a $500 security deposit prior to making roaming facilities available.
28.2 Where we are providing mobile services, if you fail to comply with the Terms and Conditions outlined herein, C3 Innovations may use the security deposit or any part thereof, to meet any costs, loss or liability incurred as a result. Where appropriate, providing you have met the provisions of the Terms and Conditions of this agreement, we will return the outstanding balance of the security deposit, without interest to you.
28.3 Where we are providing mobile services, you understand that while roaming an overseas network it may not provide some of the services. There may be limitations to the overseas networks, which may have not been advised to you or us.
28.4 Roaming charges are governed by the carrier you use at the time. We advise the Roaming rates will alter without notice and Roaming rates for the country you’re going to should be checked on www.C3 Innovationsinnovations.com.au prior to your departure.
29.0 Conditions of an Optus or Vodafone Network Mobile Service
29.1 Rate Plan:
29.1.1 If arrangements between Optus Pty Ltd (“Optus”) (means the wholesaler of Optus Mobile Services) or Vodafone Australia Pty Ltd (“Vodafone”) (means the wholesaler of Optus Mobile Services) and C3 Innovations are terminated, Optus or Vodafone may arrange to supply you directly. You acknowledge that the rate plan applicable to the provision of Mobile Service to you may be altered to the nearest applicable Supplier rate plan in the event the rights and obligations of C3 Innovations under your Agreement are assigned or novated to Optus and Vodafone so that Optus and Vodafone can provide the Mobile Services directly to you.
29.1.2 You may not resell or resupply the Mobile Services provided by C3 Innovations.
29.1.3 C3 Innovations shall have the right to assignor novate all or part of its rights and obligations under your Agreement to Optus or Vodafone without your consent. You cannot assign or novate all or part of your rights and obligations under your Agreement other than in accordance with this clause 29.
29.1.4 For the purposes of novation, you agree to novate your Agreement to Optus or Vodafone on receipt of a notice from either C3 Innovations, Optus or Vodafone, such novation to be on terms no less favourable that the terms of the Agreement in existence immediately prior to novation.
29.1.5 You consent to allow C3 Innovations to disclose to Optus or Vodafone (or their Related Bodies Corporate) your details including information relating to the affairs or personal particulars (including any listed or unlisted telephone number, address or account history) or carriage services supplied to you.
29.1.6 You consent to allow Optus or Vodafone (or their Related Bodies Corporate) to use that information in order to facilitate the supply of carriage services to you by C3 Innovations by Optus or Vodafone. Without the express permission of C3 Innovations, Optus or Vodafone (or their Related Bodies Corporate) may not directly contact you with offers and information via electronic messaging (such as SMS) for marketing purposes.
29.2 To the full extent permitted by law C3 Innovations, Optus and Vodafone (or their Related Bodies Corporate) will not be liable in any circumstances, however arising, to you or any person claiming through you in contract, tort, or otherwise (including negligence) relating to your mobile service for:
29.2.1 Any economic loss or damage and in particular (without limitation), any loss of revenue, profits, actual or potential business opportunities, contracts or anticipated savings of profits; or
29.2.2 Any indirect or consequential loss; or
29.2.3 The acts of omissions of the carrier or any of our servants, officers, agents, contractors or subcontractors or the failure of, or fault or defect, in any contractors of subcontractors or the failure of, or fault or defect, in any telecommunications service, network, facilities, equipment or service, used by Us in supplying telecommunications services; or
29.2.4 C3 Innovations’ failure to continue to provide the service to you for any reason whatsoever. You acknowledge that we do not guarantee continuous fault free provision of the service.
29.2.5 C3 Innovations, or Optus will not be liable for any consequential, direct or special loss resulting from the unavailability of any service due to any outage that is beyond its control.
29.3 You agree that you are not a Carrier or Carriage Service provider as defined in the telecommunications ACT of 1997.
29.3.1 Should you become a Carrier of Carriage Service Provider then C3 Innovations, or Optus may cancel your service under notice.
30.0 Conditions of Voice & Video Conferencing Services
30.1 You are responsible for maintaining the confidentiality of your owner number and any personal identification numbers and passwords (‘Account’) and for restricting access to your account.
30.2 You agree to accept responsibility and liability for all activities that occur under your account whether lawful or unlawful. You are also solely responsible for all uses of your account, whether or not actually or expressly authorised by you.
30.3 We do not sell products or services to minors. If you are under 18, you may use our services only under the supervision of a parent or guardian.
30.4 We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders at our sole discretion.
31.0 Conditions of Data &/or DSL Service
31.1 If we do not supply a standard telephone service with the ADSL/SHDSL access component it may be necessary to terminate the service if you request another carrier to provide a standard telephone service after the date of this agreement;
31.2 We may, at our discretion, provide the service by using either: (a) An existing or new Unconditioned Local Loop Service (‘ULLS’); or
(b) An existing or new access line that supplies a standard telephone service; provided by Telstra Corporation Limited (‘Telstra’) or a reseller of Telstra, depending on the technical & operational requirements of the particular Service.
31.3 Where a telephone exchange area is shown as being DSL enabled, there is no guarantee that individual telephone services provided from that exchange will qualify for DSL service provision.
31.4 The performance of the end-to-end service offered over DSL is determined by the quality of the copper line and the distance from the DSL exchange. As such the performance of the end-to-end service can only be estimated until we have qualified the line performance. We will accept an End User order upon appropriate qualification where the line performance meets our service objectives and the availability of the said service.
31.5 For the purpose of measurement of data usage 1000MB = 1GB.
32.0 Acceptable use of Internet, Data &/or DSL Service
In addition to the provisions in (27 .0) above, you agree to comply with the acceptable use standards which include but are not limited to the following:
32.1 Not to send e-mail that may destroy or damage an e-mail recipient’s computer;
32.2 Not to knowingly accept email which is unlawful, and violates or infringes upon the rights of any person or corporation;
32.3 Not to reveal confidential information about us and or our suppliers which may result in unauthorized usage of the services by a third party;
32.4 Not to transmit information which contains viruses or other harmful components;
32.5 Not to interfere, damage or destroy computer systems operations of the Services including disobeying any of our requirements, procedures, policies or regulations, other users and or third parties; and
32.6 Not to store or transmit any unlawful, threatening, defamatory, offensive or pornographic material that constitutes a criminal or civic offence under State and Commonwealth Laws.
33.0 Network Security
33.1 You agree to accept responsibility and liability for the security of and or access to your networks and related systems. You will take reasonable and appropriate precautions to prevent any violations of your network and or related systems security.
33.2 We do not take responsibility or are liable in any way for any violations of your network and or related systems security, however caused.
33.3 While we are responsible for the provision of services, you are responsible for ensuring that adequate security in the form of virus protection or firewalls exist to protect your electronic data or the electronic data of your business against unauthorised or unwarranted intrusion.
34.0 Data and Satellite Transmission Requirements
Left blank intentionally and to be updated in early 2018.
35.0 Inaccessibility due to Interference
You agree that:
(a) Any service levels for the data service(s) do not apply where you are unable to access the data service(s) due to any interference with the CPE that prevents the CPE from:
(i) Functioning, which are a result of any changes to the surrounding environment subsequent to the installation of the CPE; and
(b) You must either:
(i) Take all steps reasonably necessary and within its control to ensure that the interference is removed; or
(ii) Where it is not possible to remove the interference, you must engage us to relocate the CPE at your cost.
36.0 Mobile Number Porting
Switching (“Porting”) your mobile Service Number (“MSN”) from your current mobile service provider to (“C3 Innovations”) is covered by the Australian Communications Industry Forum. Industry Code – Mobile Number Portability ACIF C570 June 2001 (“MNP Code”) and bilateral arrangements. Provided that your MSN is capable of being Ported, you may Port your MSN from your current Mobile Service Provider to C3 Innovations if that MSN is declared Portable under the ACA Numbering Plan 1997 and no exemption has been granted by the ACA. The terms of the relevant C3 Innovations Service Application form (including all associated terms and conditions), as current, and as may be varied from time to time, will apply to your use of the Service.
36.1 You acknowledge and agree with the following:
(a) If your MSN is ported, only your MSN switches to C3 Innovations. No existing value added services with your current Mobile Service Provider will be transferred, which may result in the loss of (or the loss of access to these services from your current Mobile Service Provider, including voice mail, SMS, paging or facsimile services. However, such services may instead be provided by C3 Innovations upon application and payment of any relevant fees.
(b) You may have outstanding contractual obligations and costs to your current Mobile Service Provider.
(c) You may have an ongoing contract with your current Mobile Service Provider which requires the payment of cancellation and or termination fees (including and early termination fees) to that mobile Service Provider if you switch to C3 Innovations.
(d) Your current Mobile Service Provider may or may not disconnect your existing mobile service and value added services, and Porting your MSN may result in finalisation of your existing account for that service.
(e) If you currently have a prepaid handset, you may need to get any SIM security or network locking removed by your current Mobile Service Provider and or have the handset reprogrammed prior to Porting, or get a new handset.
36.2 You can only withdraw your authority to Port to the Port Cutover Notification being received by C3 Innovations from your current Mobile Service Provider.
36.3 C3 Innovations does not warrant that it can switch your number from your current Mobile Service Provider. Your current Mobile Service Provider may reject the request to Port, if the information you provide is incorrect or does not match the data held by them. In
this case, we reserve the right to correct the information and resubmit the request to switch or dispute the rejection by your current Mobile Service Provider. Additionally, in accordance with the MSN Code, a request to Port may be rejected if:
(a) The request is for a non-Portable MSN, eg. A cancelled MSN.
(b) The MSN Code requires the request to be rejected; or
(c) C3 Innovations cannot otherwise provide Porting for that MSN in the circumstances.
36.4 If your MSN cannot be ported then you may accept a new donor number from C3 Innovations on such terms and conditions as imposed by C3 Innovations.
36.5 C3 Innovations does not warrant that your MSN will be switched to C3 Innovations within any specified timeframe. The Standard Hours of Operation under the MSN Code are AEST 8am to 8pm Monday to Friday and 10 am to 6pm on Saturday, excluding national public holidays. C3 Innovations may be able to provide you with the facility to implement the Porting to your MSN(s) outside the Standard Hours under any bilateral agreement that may exist from time to time.
36.6 Acting in accordance with the MNP Code and any other bilateral arrangements, in the event of a Port to C3 Innovations, or Port Withdrawal or Port Reversal to your previous Mobile Service Provider, C3 Innovations:
(a) Is not responsible for any period of outage of your Mobile Service and or any related or ancillary services; and
(b) To the extent that any statutory warranties cannot be lawfully excluded, you agree that C3 Innovations’ liability to you will be limited in contract, tort or otherwise direct or indirect, for or in relation to the Port, or Port Withdrawal or Port Reversal, including any negligent act or omission by C3 Innovations; and
(c) To the extent that any statutory warranties cannot be lawfully excluded, you agree that C3 Innovations’ replacement of the goods’ supply or equivalent goods; payment of the cost of having the goods repaired; supplying the services again; and the cost of supplying equivalent services.
36.7 If you wish to Port your MSN from C3 Innovations to another Mobile Service Provider, then you must contact the other provider. If you do so and your agreement has not expired, you will be liable for any termination fees as detailed in clause 25.
36.8 C3 Innovations reserves the right to charge to Port your MSN to or from C3 Innovations.
36.9 You expressly authorise C3 Innovations to provide information regarding your MSN, C3 Innovations and the network type to be disclosed to other telecommunication service providers to enable the transfer of your mobile service from one mobile Service Provider to another, to allow call routing, for End User network fault management, for preventing of fraud, and for routing of SMS messages to your MSN after porting activity. For further information on the Porting process please refer to the MNP CODE.
37.0 C3 Innovations Direct Services and Local Number Portability
37.1 C3 Innovations Direct Services (also known as C3 Innovations IP Voice). C3 Innovations Direct Services are data service based VoIP services. C3 Innovations Direct Services are marketed by C3 Innovations under the brand C3 Innovations IP Voice. These services are not connected via Telstra’s local phone lines. End Users can migrate from Telstra phone lines (or from a Telstra Service Provider) to C3 Innovations Direct Services and keep their existing local numbers via Local Number Portability (Please see section 37.2).
37.2 Local Number Portability (LNP) refers to the transfer of a standard telephone service number (for example, a Business Line service or an ISDN 10 between service providers. Local Number Porting includes transfers between Telstra and its service providers and between Telstra and other carriers.
37.3 Porting local numbers to, or from, C3 Innovations takes between 30 and 120 working days.
37.4 Pricing - End Users waiting for their services to port to C3 Innovations Direct Network will be charged at C3 Innovations’ standard rates until the port is completed.
37.5 Transferring Numbers from a C3 Innovations Direct Service. If the service is still under Agreement with C3 Innovations then the End User will be liable to pay an early termination fee, along with all outstanding usages charges. Any costs associated with the move away from C3 Innovations to another carrier are the sole responsibility of the End User and may include connection fees charged by the new carrier and PABX programming.
You will keep confidential all information supplied by the carrier or us.
39.0 Force Majeure
We will not be liable for any delay in the connection of or failure in the operation of services due to any occurrence reasonably beyond our control including failure of any link provided by the carrier.
40.0 Entire Agreement
40.1 This agreement contains your and our entire understanding to the exclusion of any and all prior or collateral agreement of understanding relating to the services provided whether oral or written. You acknowledge that you have not entered into this agreement in reliance upon any statement made by us, other than as expressly contained in this agreement.
40.2 If any part of this agreement is found to be invalid or of no force or effect this agreement shall be construed as though such part had not been inserted and the remainder of the Agreement shall retain its full force and effect.
40.3 To the extent that any service specific term or condition conflicts with any other term or condition in this agreement, the term or condition specific to the service will apply.
We may assign the benefit of this Agreement at any time to a person or corporation nominated by us, including a carrier, and, in this event, such assignee or nominated carrier shall deal directly with you for the purposes associated with the provision of Services under this Agreement.
Finally, information provided as part of your use of the C3 Innovations web site such as your address, contact numbers or email address/s. We collect information about you to provide you with a particular product or service/s. We may also use personal information for related purposes such as providing our service or services, approving an application for C3 Innovations services, internal accounting and administration, including sharing information with our related bodies corporate or credit agencies for reporting purposes, providing your contact details to recommended suppliers (after your written consent to do so) and for other approved purposes, attempting to protect you and C3 Innovations from fraud, preventing credit infringement or developing a better understanding of your needs. If you do not provide us with your personal information, we cannot provide you with these services.
Other than disclosure to service providers (explained below) or as required by law (for example, disclosure to various Government departments or to courts), our policy is that we do not generally give your personal information to other organisations unless you have given us your consent to do so.
We may share your personal information with service providers and other third parties to help us run aspects of our business efficiently. Occasionally C3 Innovations might also use your personal information for other purposes
or share your information with another organisation because:
• we believe it is necessary to provide you with a service that you have requested;
• we believe it necessary to implement our terms of service;
• we believe it is necessary to protect the rights, property or personal safety of another C3 Innovations End User, any member of the public or C3 Innovations.
• we believe it is necessary to do so to prevent or help detect fraud or serious credit infringements – for example, we may share information with other utility companies, credit reporting agencies, law enforcement agencies and fraud prevention units;
• we believe it is necessary to protect the interests of C3 Innovations for example, disclosure to a court in the event of legal action to which C3 Innovations is a party;
C3 Innovations likes to keep you up to date with our special offers and new services, unless you’ve specifically asked us not to. Please note that once you’ve signed up to a C3
Innovations service, you can choose not to receive marketing information from us by calling our End User care team on 1300 903 234 If at any time you want to know what personal information we hold about you, you are welcome to request a copy of your End User record by calling the C3 Innovations End User care team on 1300 903 234.
If at any time you wish to change personal information that is inaccurate or out of date, please contact us and we will take reasonable steps to amend our records. C3 Innovations endeavours to take all reasonable steps to keep your personal information secure. Only authorised users can access your personal information, and access is only for approved purposes. We train our staff and require our data operators to respect the privacy and confidentiality of your information. Unfortunately, we can’t give you an absolute guarantee that your information is always secure. For example, no data sent over the internet is 100% secure.