Prosum General Terms and Conditions
1. STANDARD FORM OF AGREEMENT
1.1 The Contract will consist of the following documents:
(a) the Prosum IP Tel & Internet – Service Specific Terms and Conditions appearing at Schedule 1; and
(b) these Prosum General Terms and Conditions; and
(c) the Service Level Agreement appearing at Schedule 2 (if any).
1.2 If there is any conflict or inconsistency between the documents constituting the Contract, unless otherwise provided, the documents will rank in order of precedence in accordance with the order in which they are listed in clause 1.1, with the first-listed document having the highest priority.
2. TERM
2.1 Subject to termination in accordance with clause 14:
(a) The Initial Term of the Contract shall commence on the Commencement Date.
(b) Unless either party notifies the other party in writing no later than 30 days prior to the expiration of the Initial Term, this Contract continues on a monthly basis which either party may terminate on 30 days’ notice ending on any day (“Extended Term”), except that such termination must not take effect prior to the expiration of the Initial Term. [Any Special Offers do not apply to the Extended Term.]
2.2 For the avoidance of doubt, the Term of this Contract shall mean the Initial Term plus the Extended Term, if applicable.
3. CHARGES AND PAYMENT
Invoiced Charges
3.1 The Customer shall pay the fees by the Due Date as specified in the invoice throughout the Term.
Additional Charges
3.2 In addition to the fees and charges disclosed in the Application Form, the invoice or such other fee disclosure document provided by Prosum to the customer, additional charges may also be applicable including but not limited to the following:
(a) If Prosum is requested by the Customer to provide the Service at a different site to the Premises prior to the delivery of the Service, the Customer must pay Prosum’s reasonable costs and fees arising from the change of site.
(b) If the information the Customer provided to Prosum to determine the infrastructure and installation required was incomplete or inaccurate;
(c) If an Excluded Event occurs Prosum may also charge the Customer the costs incurred to service, modify, repair or replace the Service or any equipment, as a result of an Excluded Event;
(d) If Prosum reasonably determines that a Fault arises out of or in connection with any Customer Equipment or the Customer’s facilities, networks and systems, then irrespective of whether there was an actual Fault or not, Prosum may require the Customer to pay Prosum’s reasonable costs and expenses in investigating the Fault, dealing with or remedying that Fault and such cost and expense shall be a debt due and payable by the Customer on demand to Prosum; or
(e) Any other costs and charges notified to the Customer by Prosum from time to time in connection with a request by the Customer for Prosum to provide additional goods, software or services.
Overdue Payments
3.3 Prosum reserves the right to charge interest on any overdue amount payable to Prosum by the Customer under the Contract. Interest will be charged from the Due Date until payment is received at the
Business Finance “Base Rate” as set by National Australia Bank from time to time or such alternative rate that may succeed that “Base Rate” from time to time. The Customer will be liable to pay to Prosum all expenses (including reasonable legal costs and expenses and the fees of Prosum’s debt recovery agents) incurred by Prosum in relation to recovering payments due under the Contract.
3.4 Prosum reserves the right to withdraw any discounts or Special Offers that the Customer receives from Prosum in connection with the supply of the Service where payment is not received by the Due Date other than where a billing dispute has been raised in accordance with clause 7.
Commission or referral fees payable.
3.5 The Customer acknowledges that Prosum may pay commissions to any dealer or referral fees to any person who introduced the Customer to Prosum.
4. INSTALLATION AND EQUIPMENT
Provision of Equipment
4.1 Prosum shall provide a Service Interface at a Service Delivery Point (“Prosum Equipment”) at the Premises, enabling the Customer to transmit and receive data by the connection of appropriate equipment to be supplied by the Customer (“Customer Equipment”).
Prosum Equipment
4.2 Title in the Prosum Equipment is not transferred to the Customer and at all times is retained by Prosum. The Customer holds the Prosum Equipment as bailee for Prosum.
4.3 Risk in the Prosum Equipment shall pass to the Customer on delivery of the Prosum Equipment to the Customer for the duration of the Term, and the risk shall then pass back to Prosum (upon Prosum taking possession of the Prosum Equipment).
4.4 The Customer is responsible for any damage to, or destruction or theft of the Prosum Equipment, except to the extent it is caused by Prosum. The Customer must keep the Prosum Equipment in good repair and condition, excluding fair wear and tear and shall not sell, assign or permit any charge, lien, mortgage or encumbrance to be created in relation to it.
4.5 Unless otherwise agreed, the Customer must:
(a) allow Prosum access when required to service, modify, maintain, repair or replace the Prosum Equipment; and
(b) do all things reasonably required by Prosum to make clear the identity of the owner of the Prosum Equipment.
Customer Equipment
4.6 The Customer may purchase equipment from Prosum for use in connection with the Service. Such equipment shall form part of the Customer Equipment for the purposes of the Contract. Title to that equipment passes to the Customer when the Customer pays for it in full in cleared funds. Risk in that equipment passes to the Customer on delivery of the equipment to its nominated location. Prosum will use reasonable efforts to transfer to the Customer any manufacturer’s warranty in any such equipment from the time title passes to the Customer.
4.7 The Customer must ensure that all Customer Equipment and its use in connection with the Service, complies with all laws, directions by a Government Agency and any reasonable directions by Prosum, otherwise Prosum may disconnect that Customer Equipment from the Service on giving reasonable notice or immediately in an emergency.
Scheduled Installation
4.8 Prosum will advise the Customer of the Scheduled Delivery Date for the Service, having regard to the service delivery targets in the Service Specific Terms and Conditions as well as the Requested Delivery Date and shall use best endeavours to commence installation of the equipment on the Scheduled Delivery Date, however Prosum shall not be liable for any Liability incurred by the Customer due to a failure to install on or before the Scheduled Delivery Date.
Prosum Network
4.9 The Prosum Network is and shall remain the property of Prosum irrespective of the manner in which any hardware or part of it is attached or secured to any land or buildings.
5. MAINTENANCE AND REPLACEMENT
5.1 Prosum may in its discretion and for so long as it determines, replace any part of the Prosum Equipment or Service with similar equipment or Service as may for the time be available. Any replacement shall be subject to the Contract in the same way as if they comprised the original Prosum Equipment or Service offered.
5.2 Prosum may interrupt the Service or Prosum Equipment for the Planned Outage Period and will give advance notice to the Customer wherever possible.
6. PROVISIONS APPLICABLE TO THE SERVICE
Cooperation With Prosum
6.1 The Customer must cooperate with Prosum and comply with its reasonable requests to allow Prosum to install equipment and establish and supply the Service to the Customer safely and efficiently. This includes meeting Prosum’s reasonable requests, at no further cost to Prosum, to:
(a) provide any necessary forecasts and information to Prosum, on which Prosum will rely in establishing and supplying the Service to the Customer;
(b) provide safe and prompt access to the Premises and the Customer’s personnel, equipment, data and information for the purpose of inspection, repair, maintenance or adjustment of the Service and to inspect and audit all equipment and devices connected to the Service;
(c) provide all necessary space and utility services (such as electricity, earthing and air conditioning) as reasonably required by Prosum for the installation, provision and proper operation of the Prosum Equipment and Customer Equipment and for the provisions of the Service; If failure to provide necessary space and utility services during a reasonable timeframe prohibits Prosum from delivery of service on the scheduled commencement date, billing of monthly service fees will commence ;
(d) provide all necessary assistance to obtain all licenses, permits and other approvals required for the provision of the Service; and
(e) provide all assistance and take all safety precautions as may be reasonably necessary or otherwise requested by Prosum to ensure safe and proper performance by Prosum of all work at the Premises.
Provision of Service
6.2 Subject to the Customer’s compliance with the Contract, Prosum will use all reasonable endeavours to provide the Service in accordance with the Contract using the resources allocated by Prosum for such purpose.
Customer’s Use Of Service And Equipment
6.3 Unless otherwise agreed in writing, the Customer shall not resell, hire, let or make available the Service for use in any way, including allowing access thereto, to any other person other than a person at the Premises exclusively for purposes directly related to the Customer’s business.
6.4 Subject to the terms of the Contract and unless otherwise agreed, the Customer must only use the Service for the communication of data between locations and sites for purposes directly related to its business.
6.5 The Customer must not use, or attempt to use, the Service:
(a) To breach any term of the Contract;
(b) For any improper or unlawful purpose or allow others to do so;
(c) In breach of any applicable Government Agency requirements, legislation and laws including but not limited to any privacy laws; copyright laws and telecommunications laws;
(d) To expose Prosum to any Liability;
(e) In any way which damages, interferes with or Interrupts the Service, the Prosum Network or a Supplier Network;
(f) In any way which may damage any property or injure or kill any person; or
(g) To transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted.
Customer To Comply With Prosum’s Directions
6.6 The Customer acknowledges that:
(a) where the Service is a carriage service, Prosum may be required to intercept communications over the Service as directed by an authorised entity; and
(b) Prosum may monitor and log the Customer’s usage of the Service and communications sent over it for the purposes of billing and network monitoring and management or as otherwise required by any law, legislation, or direction of any Government Agency.
6.7 Prosum may ask the Customer to stop doing something which Prosum reasonably believes is contrary to clauses 6.3, 6.4 or 6.5. The Customer must immediately comply with any such request. If the Customer does not, then Prosum may terminate or suspend the Contract or take any steps
reasonably necessary to ensure compliance with clauses 6.3, 6.4 and 6.5 or the request.
7. BILLING & BILLING DISPUTES
7.1 On and from the Commencement Date Prosum will provide the Customer with an invoice providing a breakdown of the fees and charges for the Service and any other charges payable pursuant to the Contract in each Invoice Period.
7.2 For the avoidance of doubt, Prosum’s records and/or any other relevant records will be conclusive evidence of usage of the Service and the fees and charges payable by the Customer.
7.3 Unless otherwise agreed Prosum will bill the Customer:
(a) in advance prior to installation for the Establishment Fee, all other once off charges, variable charges; and
(a) in advance for the Invoice Period for the Monthly Service Fee and all other Recurring Charges and any other charges required by Prosum in advance before providing the Service.
7.4 Processing and verification procedures (including delays in receipt of billing information) may mean that not all fees and charges during the period covered by a bill can be included in that bill. Prosum may include those charges in any subsequent bills.
7.5 Prosum reserves the right to re-issue any bill if any error is subsequently discovered.
7.6 The Customer is liable for all charges whether or not the Customer authorised the particular use of the Service by another person and the Customer will continue to be liable for the charges if the Customer allows another person to occupy the Customer Premises or use the Service.
7.7 The Customer may dispute an invoice if the Customer reasonably believes that the Customer is not liable to pay the charges because of an inaccuracy, omission or error in the invoice. Any dispute relating to the payment or accuracy of any invoice must be resolved pursuant to the Billing Disputes Procedure specified in clause 9.
8. CREDITWORTHINESS
8.1 The Customer acknowledges that the provision of the Services, Prosum Equipment and any other obligation under the Contract by Prosum shall be subject to Prosum’s privacy policy, the requirements of the Privacy Act 1988 (Cth); Telecommunications Act 1997 (Cth); Telecommunications (Interception and Access) Act 1979; Spam Act 2003 (Cth); and any other applicable laws, codes and regulations.
8.2 For the purposes of processing the application for Service, establishing the Customer’s account and the ongoing credit management of the Customer’s account Prosum may need to disclose to a credit reporting agency personal information relating to the Customer which is in Prosum’s possession, including but not limited to, information referred to in clause 8.3 and the Customer hereby consents to such disclosure or use.
8.3 Pursuant to clause 8.1 the following represents a list of Customer information relating to the Customer which may be disclosed to a credit reporting agency:
(a) Customer name and address, ACN, ABN, business names, partnership details;
(b) details of the Customer’s application for Prosum Services and/or services supplied to the Customer;
(c) credit limits on the Customer’s accounts;
(d) the amount of any payments which are overdue for at least 45 days;
(e) where an overdue payment has been previously reported, advice that the payment is no longer overdue;
(f) court judgments or bankruptcy orders made against the Customer;
(g) that, in the opinion of Prosum, the Customer has committed a serious credit infringement;
(h) that Prosum has ceased to provide Services to the Customer in accordance with the terms of this Contract as a result of Customer default relating to payment/credit; and
(i) any additional and relevant information which Prosum may wish to use or believes should be disclosed may be disclosed or used.
8.4 The Customer agrees that Prosum may obtain from any person or body carrying on the business or undertaking involving the provision of information about the commercial creditworthiness of persons, any information concerning the Customer that concerns the Customer’s commercial activities or commercial creditworthiness for the purposes of assessing the Customer’s application for Services and the ongoing credit management (including collection of overdue amounts) of the Customer’s account. Prosum may, at its sole discretion, refuse to supply its services to the Customer on the basis of Prosum’s credit assessment of the Customer, after consultation with the Customer to confirm the accuracy of the assessment.
8.5 The Customer agrees that Prosum may disclose a credit report to any credit provider, debt collection agency or any Other Supplier for the purposes of:
(a) assessment of the Customer’s creditworthiness; and/or
(b) the collection of payments that are overdue.
8.6 In addition if it should be required, the Customer agrees, within 10 Business Days of Prosum’s request to provide to Prosum any information (including the Customer’s Financial Accounts) which is reasonably necessary to assess the creditworthiness of the Customer.
9. DISPUTES PROCEDURE
9.1 The parties shall co-operate to investigate promptly and resolve any dispute concerning the accuracy of any billing data, any amount payable and any other issue arising pursuant to the Contract.
9.2 In the event of a dispute as to fees and charges, the Customer shall notify Prosum of any dispute in writing no later than ten (10) Business Days after the receipt of the relevant invoice, providing sufficient information to identify the invoice in question and the grounds of the dispute. Failure to make such a notification within the time frame shall be deemed to be a waiver of the Customer’s rights to dispute the relevant notice.
9.3 On receipt of a notice disputing fees under clause 9.2, the Representatives of both parties shall meet within five [5] Business Days and discuss and do all things reasonably required to expeditiously and amicably resolve the dispute.
9.4 In the event the parties are unable to resolve the dispute within [10] Business Days of the commencement of discussions under clause 9.3, each party shall internally escalate to an executive of the party. The executive shall within ten [10] Business Days attempt to resolve and settle the dispute. If the dispute remains unresolved, either party may, on giving written notice to the other party to such effect, commence legal proceedings in an appropriate court to resolve the matter.
9.5 During the existence of any dispute, the parties must continue to perform all of their obligations under the Contract (subject to clause 14), without prejudice to their position in respect of the dispute unless the parties agree otherwise and the Customer must continue to make payment of amounts of fees and charges or part thereof which are not the subject of a dispute.
9.6 Nothing in this clause prevents a party from seeking urgent interlocutory relief required in relation to the Contract.
10. COMPLIANCE WITH GOVERNMENT AGENCY REQUIREMENTS
10.1 In the event that Prosum is unable to provide the Service substantially in the form and of the type contemplated under the Contract due to any direction of a Government Agency, law, rule, regulation, statute or ordinance then Prosum shall provide notice to the Customer of that fact as expeditiously as possible and shall not be liable for any Liability incurred by the Customer as a result of Prosum’s failure to provide the Service as contemplated pursuant to this clause 10.
10.2 Upon receipt by the Customer of a notice under clause 10.1, the Customer shall be at liberty to terminate the affected Service without penalty by notice to Prosum within 14 days of receipt of the Clause 10.1 Notice. If the Customer provides this notice to Prosum within the said 14 days then the Service shall be deemed to be terminated by the Customer.
10.3 In the event that the Customer does not provide a termination notice to Prosum under clause 10.2 then the Service shall revert to a Prosum Managed Service in accordance with the terms of this Contract, except as provided for in writing by Prosum.
11. NATURE OF THE CONTRACT
11.1 The Contract contains the entire agreement between Prosum and the Customer and supersedes all prior communications and negotiations between the parties.
11.2 Unless otherwise specified in the Contract, no amendment or variation of the Contract is valid or binding on a party unless made in writing and signed by the Customer and Prosum.
11.3 The Customer shall not sub-let, assign, dispose of or otherwise deal with its interest in or under the Contract without the prior written consent of Prosum and if any such consent shall be on terms acceptable to Prosum.
11.4 Prosum shall be entitled to novate, assign or sub-contract its interest in and obligations under the Contract or any part thereof to any third party upon written notice to the Customer. The Customer acknowledges and agrees that Prosum shall have no further obligations to the Customer in respect of any matter relating to such novation or assignment on and from the date of the notice provided to the Customer pursuant to this clause 11.4.
12. INDEMNITY
12.1 The Customer shall indemnify Prosum from and against any Liability which may be incurred or suffered by Prosum arising from any one or more of the following:
(a) the breach by the Customer of a material term or any of the Customer’s obligations under the Contract;
(b) any negligent act or omission or wilful misconduct by the Customer arising from the use of the Service, Prosum Equipment, Customer Equipment or otherwise arising out of the Customer’s obligations under the Contract;
(c) the use or provisioning of the Service or the Prosum Equipment or the Customer Equipment; and
(d) any claims or demands made upon Prosum by reason of any loss, injury or damage which may be suffered by any person from the provisioning or use of the Service or the Prosum Equipment.
13. LIABILITY AND WARRANTIES
13.1 Except as expressly provided in the Contract, any terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the subject matter of the Contract are excluded to the maximum extent allowed by the law.
13.2 The liability of Prosum for a breach of any term, condition or warranty implied by law will be limited to any one or more of the following at the election of Prosum:
(a) if the breach relates to goods:
• the replacement of the goods or the supply of equivalent goods;
• the repair of such goods;
• the payment of the cost of replacing the goods or of acquiring equivalent goods; or
• the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
• the supplying of the services again; or
• the payment of the cost of having the services supplied again.
13.3 The Customer acknowledges it has not relied on any representation or warranty made by Prosum which has not been stated expressly in the Contract or upon any descriptions or illustrations or specifications contained in any document including any catalogues or material published by Prosum.
13.4 Except as required by law or regulation or as set out in this Contract, Prosum expressly excludes all liability for all warranties, conditions, non-fraudulent representations, express or implied concerning the Service, including but not limited to those relating to the availability, performance, quality or fitness for purpose of the Service.
13.5 Under no circumstances will Prosum be liable to the Customer for loss of profits, loss of contracts, loss of use of the Service or any Interruption or for any indirect, economic or consequential loss whatsoever, whether arising from negligence, breach of contract, failure of the Service or otherwise.
13.6 Subject to clauses 13.1, 13.2, 13.4 and 13.5, and to the extent permitted by law, the maximum liability of Prosum to the Customer for all loss and damage suffered or incurred by the Customer in connection with any breach of contract, tort (including negligence) or any other cause of action is limited for all claims in the aggregate to the fees paid by the Customer to Prosum under this Agreement in the 3 months before the most recent claim arose.
13.7 The provisions of this clause 13 survive the termination of the Service.
14. TERMINATION AND SUSPENSION
Termination by Prosum
14.1 Prosum may, without liability, terminate the Contract or provisioning of the Service:
(a) at any time prior to the Commencement Date, if Prosum reasonably determines that it is not technically or operatively feasible or commercially viable to supply the Service to the Customer; or
(b) at any time after the Commencement Date by giving 30 days written notice to the Customer;
14.2 Prosum may, without liability, at its option either terminate or suspend the Contract by giving notice to the Customer if:
(a) the Customer breaches its obligations under the Contract (including an obligation to make payment) and such breach is not capable of remedy or the Customer does not remedy that breach within 30 days after Prosum gives it notice requiring it to do so;
(b) if the Customer does not obtain the consent of the owner of the Premises to the supply of the Service.
(c) the Customer fails to make payment for the Services by the Due Date and such amounts remain unpaid for 10 Business Days after receiving notice from Prosum of such non-payment;
(d) Prosum reasonably suspects fraud or other misuse by the Customer or any person in connection with the Customer with the Service and the Customer has not responded to Prosum’s notice to the Customer of any such event;
(e) The Customer suffers an Insolvency Event;
(f) Prosum or a Prosum group company is entitled to terminate or cancel any other service supplied to the Customer, or is entitled to (or does) terminate any other agreement with the Customer;
(g) Prosum is required to do so under any law or to comply with an order, instruction or request of a Government Agency, an emergency services organisation or any other competent authority; or
(h) a supplier terminates its agreement with Prosum, or ceases to supply services to Prosum, and Prosum is not able to provide the Service using services supplied to Prosum by an alternate supplier on terms reasonably acceptable to Prosum (including pricing).
14.3 If the Service is terminated before the end of the Term pursuant to clause 14.2 the Customer must pay to Prosum an amount calculated by multiplying the Monthly Service Fee by the remaining months (or part thereof) of the Term and any outstanding charges including Establishment Fee or part thereof.
Termination by Customer
14.4 The Customer may after the Commencement Date, terminate the Contract, without liability if:
a) it does so pursuant to clause 10.2;
b) if the Service has been suspended for more than 14 consecutive days through no fault of the Customer other than in the case of a force majeure event.
c) Prosum commits a serious breach of the Contract, and has not remedied that breach within 30 days of the becoming aware of the breach.
14.5 In addition to the Customer’s right under clause 14.4, the Customer may terminate the Contract after the Commencement Date but before the end of the Term by giving 30 days written notice to Prosum and must pay Prosum an amount calculated by multiplying the Monthly Service Fee by the remaining months (or part thereof) of the Term and any outstanding charges including Establishment Fee or part thereof.
Termination By Either Party
14.6 Either party (“Affected Party”) may, without liability, terminate the Contract with immediate effect from the date of service of a notice (or with effect from a later date as the Affected Party may nominate in a notice) if any Force Majuere Event prevents the supply of the Service for more than 30 consecutive days.
Suspension by Prosum
14.7 In addition to Prosum’s rights under clause 14.2, Prosum may, upon reasonable notice, without liability and with immediate effect suspend the Service for as long as Prosum, acting reasonably, considers necessary:
(a) if doing so is necessary to allow Prosum or a third party supplier to repair, maintain or service any part of the Prosum Network or Supplier Network used to supply the Service;
(b) problems are experienced interconnecting the Prosum Network with any Supplier Network;
(c) if Prosum believes it is necessary to do so to comply with any law, to protect any person, equipment or Prosum’s network, or to enable authorised persons to attend to any emergency.
14.8 If the Service is suspended as a result of the Customer’s breach of the Contract or otherwise in accordance with clauses 14.2 or 14.7, then the Customer:
(a) will have to pay any recurring charges arising during suspension, such as the Monthly Service Fee; and
(b) a reactivation charge if reactivation or reinstatement of the Service is necessary after it has been suspended following termination.
14.9 Upon termination of the Service for any reason Prosum, its agents or employees shall have reasonable access to the Premises for the purpose of disconnecting, dismantling and removing the Service and Prosum Equipment, and the Customer shall render all reasonable assistance to Prosum to enable it to do so.
14.10 Prosum shall upon removal of the Service and Prosum Equipment make good to a reasonable standard, fair wear and tear excepted, any damage caused during the removal of the Service, but without any obligation to repaint or redecorate. This clause shall not apply if removal of the Service by Prosum occurs as a result of any breach of the terms of this Contract by the Customer.
14.11 Termination of the Contract shall be without prejudice to the right of Prosum to receive any amounts which may have become due for payment prior to such termination but which have not been paid.
14.12 On termination of the Contract for any reason:
(a) each party must, on request by the other party, immediately return or destroy the other party’s Confidential Information, except to the extent that it is required by law to retain the other party’s Confidential Information;
(b) Prosum may immediately stop supplying to the Customer the Service;
(c) unless otherwise permitted by Prosum in writing the Customer must immediately stop using the Service and the Prosum Equipment;
(d) unless the Contract expressly states otherwise, each persons’ accrued rights and obligations are not affected; and
(e) the clauses of the Contract which are by their nature intended to survive cancellation of the Service will do so, which for the purposes of these General Conditions, include clauses 4.2, 4.4, 4.9, 8.1, 12, 13, 14.11, 15, 16 and 19.
15. INTELLECTUAL PROPERTY
15.1 Prosum owns all material (including the Intellectual Property Rights) developed by it, or its personnel, or at its or their discretion.
15.2 Prosum may permit the Customer to use this material, or other material licensed by Prosum, as part of the Service. This permission is subject to any conditions which Prosum may impose from time to time and the permission will automatically terminate when the Service is cancelled or the Contract terminates or expires, whichever first occurs.
16. CONFIDENTIALITY
16.1 Prosum and the Customer each agree to keep confidential the other’s Confidential Information and to not use the Confidential Information for any other purpose than that for which it was disclosed.
16.2 The Provider retains all property rights in the Confidential Information.
16.3 Prosum may disclose Confidential Information (to the extent reasonably necessary) to its Representatives for the sole purpose of assisting the Recipient for purposes related to the supply of the Service (or for purposes which would be reasonably expected) including billing and account management, business planning and product development.
16.4 The obligations of confidentiality in this clause 16 do not apply to the extent disclosure is required by law or the rules of a stock exchange, a direction by Government Agency, or disclosure to professional advisors in connection with the supply of the Service.
16.5 The Recipient acknowledges that a breach of this clause 16 may cause the Provider irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, the Provider may seek injunctive relief against such a breach or threatened or suspected breach.
16.6 The Recipient’s obligations with respect to the Confidential Information survive termination and bind the Recipient until the relevant Confidential Information has become part of the public domain other than in breach of an obligation of confidentiality
17. NOTICES
17.1 Notices for the purpose of the Contract must be in writing. A notice given to a party at that party’s address set out on the face or at such other address as may be substituted by written notice from such party to the other shall:
(a) in the case of prepaid post, be presumed to be given 5 days after the date of posting;
(b) be presumed to be delivered at the time of delivery if delivered during normal business hours;
(c) be presumed to be given if subsequently acknowledged in writing (including by email) by the recipient, in the case of an email transmission.
18. WAIVERS
18.1 No waiver or indulgence by any party to the Contract shall be binding upon the parties unless in writing.
19. GOVERNING LAW
19.1 This Contract shall be governed by the law of Victoria and the parties agree that any dispute in relation to the Contract or its subject matter will be resolved in the Courts and Court Registries located in Melbourne, Victoria.
20. GOODS & SERVICES TAX
20.1 In this clause the expressions “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply” and “tax invoice” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.
20.2 All prices or other sums payable or consideration to be provided and which are expressly stated in this Contract are exclusive of GST unless otherwise indicated.
20.3 If GST is payable by the supplier on any supply made under the Contract the recipient will pay to the supplier an amount equal to the GST payable on the supply. Subject to the supply of a tax invoice that amount will be paid at the same time the consideration for the supply is payable under the Contract and will be paid in addition to the consideration. The supplier shall provide the recipient with a tax invoice in respect of the supply.
20.4 Where the recipient is required to pay for or reimburse an expense or outgoing of the supplier, the amount to be paid by the recipient is the amount of the expense or outgoing less any input tax credit in respect of such expense or outgoing that the supplier is entitled to.
20.5 Any invoice or claim provided by the supplier under the Contract will be or be accompanied by a tax invoice or other approved document providing the recipient with the ability to claim an input tax credit.
21. COUNTERPARTS
21.1 This Contract may be executed in any number of counterparts and by the parties on separate counterparts. Each counterpart constitutes the agreement of each party who has executed and delivered that counterpart.
22. DEFINITIONS
Prosum – means PABX Sales and Service Pty Ltd (ABN 53 087 133 702) and its authorised subcontractors, suppliers and agents.
Prosum Equipment – has the meaning set out in clause 4.1.
Prosum Infrastructure – means the physical network infrastructure over which Prosum will provide the Service. This includes any Prosum Equipment and the Prosum Network.
Prosum Managed Service means a service for which Prosum has remote monitoring and diagnostic capabilities for all Prosum infrastructure used to provide the service including equipment installed on the customers premises.
Prosum Network – means any telecommunications network, equipment, or facilities, or cabling controlled or utilised by Prosum.
Application Form – means the Prosum Service Application Form for the Service
Business Day – means a business day in the city where the Service is provided.
Commencement Date – means, unless otherwise agreed, the day Prosum completes physical installation of the Service at the Premises so that it is able to provide the Service.
Confidential Information – of a party means all information of a confidential nature relating to that party including anything which is indicated to be subject to an obligation of confidence which is disclosed by that party to the other party in relation to this Contract to supply service or comes to the knowledge or into the possession of the other party in connection with this Contract but does not include information:
(a) the party creates (whether jointly or alone) independently of the other party’s Confidential Information;
(b) that is public knowledge (other than as a result of a breach of confidentiality by the party or any person to whom the party has disclosed the information); or
(c) obtained without restriction as to the further disclosure from a source other than the other party through no breach of confidentiality by that source.
Customer – means the customer described in the Application Form.
Customer Equipment – has the meaning set out in clause 4.1.
Day or day – means any day not limited to a Business Day
Due Date – 21 days from the date of the Invoice, unless specified otherwise by Prosum.
Establishment Fee – means the establishment fee repayable by the Customer and set out in the Application Form.
Excluded Event – means:
(a) a breach of the Contract by the Customer;
(b) an intervening event;
(c) a negligent or fraudulent act or omission of the Customer or the Customer’s personnel; or
(d) a failure of any of the Customer’s Equipment.
Fault – means any circumstance physically related to the Service which renders the Service unusable or significantly impaired.
Force Majeure Event – means:
(a) any act of god or act of nature, fire, flood, storm, explosion, sabotage, riot, act of war whether declared or not, requirement or restriction of governmental authorities, inability or delay in the grant of governmental or other approvals, consents, permits, licences or authorities or any other like event; or
(b) any strike, lockout, work stoppage or other industrial dispute of any kind; or
(c) any act or omissions of a third party which affects the provisions of the Services, including a failure to provide goods and services or access to premises; or
(d) any other similar circumstances beyond the reasonable control of the affected party.
General Terms and Conditions – means the general terms and conditions contained in this document.
Government Agency – means any government or governmental, semi-governmental, administrative, municipal, fiscal or judicial body, department, commission, authority, tribunal, agency or other statutory entity including but not limited to the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Australian Communications Industry Forum Limited, the Telecommunications Industry Ombudsman and any other governmental or statutory body or authority.
Initial Term – means the term specified in the Application Form.
Insolvency Event – means:
(a) bankruptcy proceedings are commenced against the Customer, or the Customer is declared bankrupt;
(b) any step that is taken to enter into any scheme or arrangement between the Customer and its creditors;
(c) any step is taken by a mortgagee to enter into possession or dispose of the whole or any party of the Customer’s assets or business;
(d) any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person to the Customer or to the whole or any part of the Customer’s assets or business;
(e) the Customer suspends payment of its debts generally; or
(f) the Customer is or becomes unable to pay its debts when they are due or it is or is presumed to be insolvent for the purposes of any provision of the Corporations Act 2001(Cth).
Intellectual Property Rights – means any intellectual or industrial property rights (including any registered or unregistered trademarks, patents, designs, or copyright) and in addition includes the right to have Confidential Information kept confidential.
Interruption – in the supply of goods or a service (including the Service) means a delay in supplying, a failure to supply or an error, defect in the supply of, those goods or that service and Interrupts has a corresponding meaning.
Invoice Period – means the period for which advanced payment of the Monthly Service Fee is required as set out in the Application Form or such other period as notified by Prosum from time to time.
Liability – means any direct or consequential liabilities, claims, losses, costs, charges, damages, injury or expenses of any nature.
Monthly Service Fee – means the monthly service fee specified in the Application Form.
Planned Outage Period – means a period during which the Service may become unusable or impaired due to Prosum undertaking necessary work on its facilities, networks or systems for any reason, including arising out of or in connection with:
(a) installation of infrastructure;
(b) maintenance requirements (including Maintenance Window); andScheduled
(c) software or infrastructure upgrades.
Premises – means locations at which Prosum provides the Service, and locations to which Prosum needs to have access to supply the Service including Site A and Site B.
Provider – means a party that discloses its Confidential Information to another party.
Recipient – means a party that receives or obtains Confidential Information of another party.
Representative – means a director, officer employee or agent
Requested Delivery Date – means the Customer’s preferred date for commencement of the Service as specified in the Application Form.
Scheduled Delivery Date – means the date, as advised to the customer by Prosum, on which Prosum has planned to make the Service available.
Scheduled Maintenance Window – means the period set out in the Contract or at such other times as Prosum may advise the Customer from time to time during which Prosum will endeavour to conduct all service disrupting planned maintenance work on its facilities, networks or systems.
Service – means the service with the options and features requested in the Application Form and as specified in the Contract, and any related goods (including equipment) and ancillary services which Prosum supplies to the Customer in connection with that Service.
Service Delivery Point – means the location at which Prosum will install the Prosum Equipment necessary to provide the Service Interface as specified in the Application Form.
Service Interface – means the physical interface at the Service Delivery Point by which the Customer connects to the Service.
Special Offers – Promotional offers that Prosum may make from time to time, including, but not limited to, free usage, discounts, or bonus months.
Supplier Network – means any telecommunications network, equipment, or facilities, or cabling controlled by a third party supplier.
Term – has the meaning given in clause 2.2.
Schedule 1 – Prosum IP Tel & Internet Service
Specific Terms and Conditions
In addition to the General Terms and Conditions the following IP Tel & Internet – Service Specific Terms and Conditions also apply in respect of the IP Tel & Internet Service.
1. SERVICE AVAILABILITY AND QUALITY
1.1 Except for any warranties implied by law which cannot be legally excluded, Prosum does not warrant, and has not represented, that the Service is or will be free of errors, defects or interruptions, or that it will be available at all times.
1.2 Prosum will endeavour to achieve the following service levels in the provision of access to the IP Tel & Internet Service (collectively the “Service Levels”):
a) availability of at least 99.95% over a 12 month period for the IP Tel & Internet Service;
b) a service Response Time as specified in Schedule 2; and
c) a service Resolution Time as specified in Schedule 2.
1.3 If the Customer is unable to access the IP Tel & Internet Service for 4 hours or more in the aggregate for any month and the inability to access the IP Tel & Internet Service is not caused by any failure, defect, error in or unauthorised modification of the Hardware, Prosum will credit the Customer with 10% of the Monthly Service Fee payable by the Customer for that month (excluding any Hardware charges) for the affected service, if Prosum is successful in claiming that amount from its upstream service provider (Service Credit). The Service Credit, if claimed by the Customer by notice in writing to Prosum, will be deducted from the fees owed by the Customer to Prosum in the Customer’s next monthly invoice. Any claim by the Customer for a Service Credit must be made in writing within 3 months of the date on which the relevant Service Level failure occurred.
1.4 To the extent permitted by law, the parties agree that the Service Credit is the Customer’s sole remedy for Prosum’s failure to achieve the IP Tel & Internet Service availability target specified in paragraph 1.3 above.
1.5 The parties agree that paragraphs 1.2 and 1.3 only apply in circumstances in which the Customer’s inability to access the IP Tel & Internet Service is due to IP Tel & Internet Service unavailability at the service provider’s server and is not caused by a failure, defect, error in or unauthorised modification of the Hardware.
1.6 The Customer acknowledges that any “unlimited” voice calling plan offered by Prosum is intended for the Customer’s own business-as-usual telephony requirements. In particular, the “unlimited” plan must not be used for making outgoing voice calls as part of a call centre operation.
2. HARDWARE
Prosum will supply to the Customer the Hardware as described in the Application Form. The Application Form indicates the Ouright Purchase Price that the Customer must pay for the Hardware.
2.1 Outright purchase of Hardware
Where the Application Form indicates that the Hardware will be purchased by the Customer, the following paragraphs 2.1.1 to 2.1.3 (inclusive) apply.
2.1.1 Payment
The Customer must pay the Outright Purchase Price in one instalment on an upfront basis by the Due Date of the relevant invoice from Prosum.
2.1.2 Risk and title
a) Title in the Hardware will only pass to the Customer upon full payment of the Outright Purchase Price to Prosum
b) If payment in full of the Outright Purchase Price is not made by the Due Date or a date otherwise agreed between the parties, Prosum has the right, with or without prior notice, to recover possession of the Hardware and the Customer agrees that Prosum may enter any premises occupied by the Customer to exercise its rights under this paragraph, without prejudice to any of Prosum’s other rights and remedies.
c) Risk of loss or damage to the Hardware passes to the Customer upon delivery of the Hardware to the Premises.
2.1.3 Insurance
If the Hardware is delivered to the Premises before title passes to the Customer pursuant to paragraph 2.1.2(a), then until title passes to the Customer, the Customer must insure and keep the Hardware insured with an insurer of recognised standing acceptable to Prosum in both the names of Prosum and the Customer for the parties’ respective rights and interests for their full insurable value against loss or damage by fire, theft, accident and such other risks as are insured against by prudent persons engaged in a similar business to the Customer. The Customer must promptly provide Prosum with evidence of the currency of the insurance described in this clause, if requested by Prosum.
The following paragraphs 3 to 9 (inclusive) apply to all Hardware arrangements available in conjunction with the Services.
3. SITE PREPARATION
3.1 Customer obligations
a) The Customer must, at the Customer’s own expense, prepare the Premises, and access to the Premises, prior to delivery of the Hardware. The Customer must comply with any directions or specifications issued by Prosum in respect of such preparation of the Premises.
b) If the Customer’s inadequate preparation of the Premises or access to the Premises causes Prosum to delay delivery or installation of the Hardware, the Customer is liable for all reasonable costs and expenses incurred by Prosum directly or indirectly as a result of the delay.
3.2 Prosum’s obligations
Prosum will, on the Customer’s request and at the Customer’s cost, supply such information and assistance as Prosum considers reasonable and necessary to enable the Customer to prepare the Premises.
4. DELIVERY
4.1 Prosum’s obligations
a) Prosum will use reasonable endeavours to deliver the Hardware to the Customer prior to or on the Commencement Date, or at such other times as agreed between the parties, at the Premises.
b) If the Customer wishes for the Hardware to be delivered to a location other than the Premises, the Customer must make such request to Prosum in writing no later than 30 days prior to the Commencement Date. Prosum may, at its sole discretion, determine whether to agree to such a request and the conditions upon which Prosum may agree to such a request (including any additional charges that the Customer must pay for compliance with such a request).
5. INSTALLATION
5.1 Prosum’s obligations
a) Prosum will install the Hardware at the Premises on the Commencement Date or at such other times as agreed between the parties.
b) If Customer wishes for the Hardware to be installed at a location other than the Premises, the Customer must make such request to Prosum in writing no later than 30 days prior to the Commencement Date. Prosum may, at its sole discretion, determine whether to agree to such a requestand the conditions upon which Prosum may agree to such a request (including any additional charges that the Customer must pay for compliance with such a request).
5.2 Customer obligations
a) The Customer must provide Prosum with such assistance, including the provision of personnel and facilities, as Prosum reasonably considers necessary for Prosum to install the Hardware.
b) The Customer must provide Prosum with all reasonable access, including the necessary security clearances, for the purpose of enabling Prosum to install the Hardware.
6. MANUFACTURER’S WARRANTY
6.1 Assignment of manufacturer’s warranty
Once title in the Hardware passes to the Customer :
a) Prosum assigns to the Customer, to the extent permitted by law and permitted by the applicable manufacturer, the benefit of any warranties given to Prosum by the manufacturer of the Hardware.
b) To the extent permitted by law, Prosum does not provide the Customer with any additional warranties or guarantees in respect of the Hardware in addition to the warranty set out in paragraph 6.1(a).
6.2 Defective Hardware
Subject to clause 6.3, if, during the Warranty Period, the Customer notifies Prosum in writing that the Hardware is defective or in breach of its manufacturer’s warranty, Prosum will, at its election, replace or repair the defective Hardware.
6.3 Misuse
Clause 6.2 does not apply where the defect or breach of manufacturer’s warranty is not caused by a defect in design or manufacture of the Hardware but is caused by misuse or unauthorised modification of the Hardware by the Customer, or a Force Majeure Event.
7. TRAINING
If requested by the Customer, Prosum will provide the Customer with training on the features and use of the Hardware at such times and cost as agreed between the parties. Prosum reserves the right to change the details and nature of such training at its sole discretion.
8. UNAUTHORISED MODIFICATION OF HARDWARE
8.1 Prosum is not responsible for the Customer’s inability to access the Service or for any degradation in Service quality which is caused by any unauthorised modification made by the Customer to the Hardware.
8.2 Prosum reserves the right to charge the Customer a fee for any work it is required to do to rectify any Hardware that has been modified without authorisation in order to restore the Customer’s access to the Service.
9. DEFINITIONS
9.1 Terms that are capitalised in these IP Tel & Internet – Service Specific Terms and Conditions have the same meaning as in the General Terms and Conditions.
9.2 In these IP Tel & Internet – Service Specific Terms and Conditions, unless the context otherwise requires:
a) Hardware means the hardware specified in the Application Form;
b) Hardware Price means the total price for the Hardware, as specified in the Application Form;
c) Outright Purchase Price comprises of the Establishment Fee and the Hardware Price.
d) Premises means the location for the delivery and installation of the Hardware as specified on the Application Form;
e) IP Tel & Internet Service means the provision of IP voice and Internet services; and
f) Warranty Period means, in respect of the Hardware, a period of 12 months from the date on which title to the Hardware passes to the Customer, unless otherwise specified in the Application Form.
Schedule 2 – Service Level Agreement
For the purpose of Schedule 1, the following Response Time and Resolution Time Service Levels will apply.
1. For IP Telephony service
2. For Internet service
