1    AGREEMENT

1.1    Commencement

These customer terms and conditions (agreement) between Fonality and the Customer commence upon the earlier of:

(a)    the date of written acceptance by Fonality of an Application Form; and

(b)    the date the customer activates the Service,

(Commencement Date).

1.2    Application

This agreement governs both the Service and any Hardware provided to the Customer by Fonality for use in conjunction with the Service.

2    INTERPRETATION

2.1    Definitions

The following words have the following meanings in this document, unless the context requires otherwise.

ACMA means Australian Communications and Media Authority.

Additional Charges means the charges payable for use of the Service beyond the Included Volume of Calls at the rates notified by Fonality to the Customer from time to time.

Application Form means Fonality's application form for Services or Hardware, signed by the Customer.

Charges means the Recurring Charges, Additional Charges and any other charges payable under this agreement.

Commencement Date has the meaning given to that term in clause 1.1.

Communications Alliance means Communications Alliance Limited.

Confidential Information has the meaning given to that term in clause 11.1.

CSG has the meaning given to that term in clause 3.5(a).

CSG Waiver means Fonality's customer service guarantee waiver.

Customer means the customer specified in the Application Form.

Emergency Call has the meaning given in the Telecommunications (Emergency Call Service) Determination 2009.

Fair Use Policy means Fonality's fair use policy in respect of the Service, available at: http://www.fonality.com.au/fair-use-policy , as amended by Fonality from time to time.

Fonality means Fonality Pty Limited ABN 32 112 795 276.

Force Majeure Event includes any event beyond the control of a party, including strike, industrial action, war, sabotage, terrorist activity, national emergency, blockade or governmental action, inaction or request, and act of God.

GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999.

Hardware means the handsets, accessories and other equipment rented by Fonality to the Customer for the purpose of the Customer accessing the Service.

Included Volume of Calls means the volume of Service usage that may be incurred without being subject to Additional Charges.

Initial Term means the initial term specified in the Application Form.

Integrated Public Number Database or IPND means:

(a)    the Integrated Public Number Database established and maintained by Telstra under the Carrier Licence Conditions (Telstra Corporation Ltd) Declaration 1997; or

(b)    if the Minister has determined, under subsection 472(1) of the Telecommunications Act 1997, that a person other than Telstra is to provide and maintain an integrated public number database - that database.

Intellectual Property Rights means any intellectual property rights at any time protected by statute or common law in Australia or elsewhere in the world and whether registered or unregistered, including copyright, trade marks, patents, patentable inventions, registered designs and rights in circuit layouts.

IPND Manager means:

(a)    Telstra; or

(b)    if the Minister has determined, under subsection 472(1) of the Telecommunications Act 1997, that a person other than Telstra is to provide and maintain the IPND - that person.

Law means any laws including statutes, regulations, common law and equity.

Loss includes, in each case whether of a direct, indirect or consequential nature:

(a)    any liability, damage, cost (including reasonable legal costs on a solicitor and own client basis) and other outgoing, and any diminution in value of, or deficiency of any kind in, any thing; and

(b)    to the extent not covered in paragraph (a), any loss of profits, sales, turnover, reputation (or damage to it), production, anticipated savings, goodwill, business opportunities, customers, software or data.

Market Value means the market value of the Hardware as determined by a person nominated by Fonality as being experienced in valuing hardware the same as or similar to the Hardware.

Number has the meaning given to that term in clause 6.2(a).

Personal Information has the meaning given to that term in the Privacy Laws.

Privacy Laws means:

(a)    the Privacy Act 1988;

(b)    all State, Territory and Commonwealth laws relating to data protection or personal information; and

(c)    any rules, regulations, guidelines or orders issued under the legislation referred to in paragraphs (a) and (b).

Recurring Charges means the monthly charge that is payable by the Customer for use of:

(a)    the Included Volume of Calls; and

(b)    Hardware.

Related Body Corporate has the meaning given to that term in the Corporations Act 2001.

Renewal Period means any period specified in the Application Form for which this agreement will continue following the expiry of the Initial Term.

Service means the voice over Internet Protocol service provided by Fonality to the Customer, with details such as:

(a)    User numbers;

(b)    Included Volume of Calls; and

(c)    corresponding Charges,

specified in the Application Form.

Support Services has the meaning given in the Support Service Terms.

Support Service Terms means Fonality's terms and conditions, from time to time, regarding Support Services, available at: http://www.fonality.com.au/fair-use-policy

Term means the Initial Term and any Renewal Periods, unless terminated earlier in accordance with this agreement.

User means an employee, agent or contractor of the Customer who accesses or uses the Service.

2.2    Interpretation

The following apply in the interpretation of this document, unless the context requires otherwise.

(a)    A reference to this document or a similar term means either the agreement set out in this document or the document itself, as the context requires.

(b)    A reference to any statute, regulation, rule or similar instrument includes any consolidations, amendments or re-enactments of it, any replacements of it, and any regulation or other statutory instrument issued under it.

(c)    A reference to the singular includes the plural number and vice versa.

(d)    A reference to a gender includes a reference to each gender.

(e)    A reference to a party means a person who is named as a party to this document.

(f)    Person includes a firm, corporation, body corporate, unincorporated association and a governmental authority.

(g)    A reference to a party or a person includes that party's or person's executors, legal personal representatives, successors, liquidators, administrators, trustees in bankruptcy and similar officers and, where permitted under this document, their substitutes and assigns.

(h)    An agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them jointly and severally.

(i)    Includes means includes but without limitation.

(j)    Where a word or expression has a defined meaning, its other grammatical forms have a corresponding meaning.

(k)    A reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or an annexure to, this document.

(l)    A reference to dollars or $ is to Australian currency.

(m)    A heading is for reference only. It does not affect the meaning or interpretation of this document.

3    SERVICE PROVISION

3.1    Connecting the Service

(a)    Fonality will endeavour to deliver the Hardware to the Customer and connect the Service within 14 days of the date of written acceptance by Fonality of an Application Form. This 14 day period is an estimate only and Fonality will not be liable in any way for any delay in delivering the Hardware or connecting the Service.

(b)    The Customer is responsible for the installation of any Hardware required to receive the Service. The Customer must comply with any instructions or guidelines provided by Fonality in connection with the installation of Hardware. Fonality will provide limited support to the Customer during the installation process, in accordance with the Support Service Terms.

(c)    Where the Customer seeks to port a Number to Fonality, Fonality will port that Number in accordance with the requirements of any applicable Communications Alliance codes. The time taken to port a Number are dependent on factors outside of Fonality's control.

3.2    Service provision

(a)    Fonality will supply the Service to the Customer in accordance with the terms of this agreement.

(b)    If the Customer requests Fonality to supply any Services to Users in excess of the number of Users specified in the Application Form, and Fonality agrees to do so, Fonality will supply the additional Services on the terms of this agreement and any additional terms notified by Fonality to the Customer.

(c)    The Customer agrees that the network infrastructure used to provide the Service is not owned by Fonality and this may impact the quality of service, availability, features and functions of the Service.

3.3    Service limitations

The Customer agrees that:

(a)    the Customer's ability to access and use the Service will depend on the features and functionality of the Hardware and internet connection used by the Customer. It is the responsibility of the Customer to check that its internet connection is capable of supporting the Service and suits the Customer's requirements;

(b)    the Service may not be compatible with all modems and firewalls. It is the responsibility of the Customer to check that its modem and firewall are compatible with the Service;

(c)    the Service is not free from faults or interruptions;

(d)    there may not always be sufficient capacity to connect or carry all calls attempted using the Service;

(e)    Fonality does not offer priority assistance to customers with life threatening medical conditions. If the Customer requires a service which includes priority assistance for a life threatening medical condition, such a service may be available for the Customer to obtain directly from other service providers such as Telstra; and

(f)    it is not technically feasible to provide access to some services, including:

(i)    '1900' premium rate numbers;

(ii)    back to base alarms;

(iii)    EFTPOS systems; or

(iv)    fax services.

Fonality does not provide any warranties in connection with the matters specified in this clause 3.3.

3.4    Variations to the Service

(a)    Fonality may vary the characteristics of the Service:

(i)    without notice if the variation is likely to benefit the Customer or have a neutral or minor detrimental impact on the Customer; or

(ii)    by giving notice in writing to the Customer not less than 30 days prior to the date on which the variation is intended to take effect if the variation is other than as described in clause 3.4(a)(i).

(b)    If Fonality varies the characteristics of the Service pursuant to clause 3.4(a)(ii), the Customer may terminate this agreement without incurring fees or charges other than:

(i)    Charges incurred up to the date the agreement ends; and

(ii)    any amounts that cover installation costs or Hardware.

3.5    Customer Service Guarantee waiver

(a)    The Telecommunications (Customer Service Guarantee) Standard 2000 (No. 2) (CSG) sets out rights and protections and other performance standards a Customer can expect from a provider of certain telecommunications services.

(b)    Part 5 of the CSG allows for a service provider to propose that a customer waive their rights and protections and other performance standards in order to obtain a significant service benefit.

(c)    By agreeing to the terms and conditions of this Agreement, the Customer hereby waives its rights and protections under the CSG so that Fonality may provide the Customer with a significant service benefit. The significant service benefit is the provision of the Service at Charges less than would otherwise apply if the CSG Waiver was not provided.

(d)    The CSG Waiver takes effect 7 days from the date the Customer enters into this Agreement. Fonality has provided to the Customer a statement of the terms of the CSG Waiver at the following link:

Fonality Customer Service Guarantee Waiver

(e)    If the Customer withdraws the CSG Waiver, Fonality is under no obligation to provide the Customer with the Service.

 

4    HARDWARE

4.1    Delivery

(a)    Fonality will deliver the Hardware to the Customer at the delivery location specified in the Application Form (Delivery Location).

(b)    Unless otherwise agreed in writing, the Customer is responsible for the cost of delivery of the Hardware as notified by Fonality to the Customer.

(c)    Any time and date of delivery specified by Fonality is an estimate only as to when the Hardware may be available for delivery and Fonality will not be liable in any way for any failure or delay in delivery or for any Loss resulting from any failure or delay in delivery of the Hardware.

(d)    The Customer agrees to accept delivery of the Hardware during normal business hours or at such other times as are agreed between Fonality and the Customer.

4.2    Title

(a)    Title to the Hardware remains with Fonality.

(b)    The Customer must:

(i)    keep the Hardware under the Customer's control at all times;

(ii)    store, mark and keep appropriate records for the Hardware so that it can at all times be identified as Fonality's property and refrain from mixing the Hardware with any goods owned by the Customer;

(iii)    not grant to any person any sub-lease or other right to possess or use the Hardware; and

(iv)    not purport to charge or encumber the Hardware in any way or sell, grant or otherwise give any security interest in the Hardware.

4.3    Risk

Risk of loss or damage to the Hardware passes from Fonality to the Customer on delivery of the Hardware to the Delivery Location.

4.4    Use of Hardware

The Customer must use the Hardware in accordance with any documentation, instructions or specifications provided by Fonality or the manufacturer of the Hardware.

4.5    Manufacturer warranties

(a)    Fonality will use reasonable commercial endeavours to assign to the Customer, to the extent that it is lawfully and/or contractually able to do so, the benefit of any warranties given to Fonality by the manufacturer of any Hardware supplied by Fonality to the Customer.

(b)    To the extent permitted by law, Fonality will not provide the Customer with any warranties in relation to the Hardware other than those expressly set out in this agreement.

4.6    Repair or replacement of Hardware

(a)    To the extent permitted by law, if the Hardware contains a defect or fault Fonality will either repair or replace such Hardware (in its discretion) if:

(i)    the defect or fault arises within ninety (90) days from the Commencement Date; and

(ii)    the cause of the defect or fault is not a cause specified in clause 4.6(b); and

(b)    To the extent permitted by law, Fonality is under no obligation to repair or replace Hardware that contains a defect or fault where:

(i)    the Hardware has been incorrectly set up or used;

(ii)    the Hardware has been damaged as a result of a failure by the Customer to perform and maintain the Hardware in accordance with any instruction manual provided by Fonality or the manufacturer;

(iii)    the defect or fault is a result of normal wear and tear;

(iv)    damage to the Hardware was caused by incorrect adjustment or use by the Customer; or

(v)    damage to the Hardware was caused by abuse, misuse, improper or abnormal usage or repairs not authorised by Fonality.

4.7    Return of Hardware

(a)    The Customer must return the Hardware to Fonality at the place specified by Fonality, upon the earlier to occur of:

(i)    notice in writing by Fonality to the Customer; and

(ii)    within 14 days of the expiration or termination of this agreement.

(b)    The Customer must ensure that the Hardware is returned to Fonality in good working condition, subject to normal wear and tear.

(c)    The Customer is responsible for paying any freight charges in connection with the return of the Hardware to Fonality.

(d)    If the Customer does not return the Hardware to Fonality in accordance with clause 4.7(a), Fonality may by notice to the Customer, declare the Hardware to be lost and the Customer must pay Fonality upon demand, as compensation for its loss, the Market Value of the Hardware.

4.8    Locked Hardware

If the Hardware is locked and programmed to work only with the Service, the Customer must not unlock the Hardware.

4.9    BYO hardware

(a)    The Customer may not use its own or any third party hardware to access the Service unless such hardware is included in the list of authorised hardware specified by Fonality from time to time.

(b)    The Customer's ability to access the Service will be contingent upon the functionality of the Customer's hardware and that Fonality does not represent or warrant that any hardware included on Fonality's list of authorised hardware will be fully compatible with the Service.

5    USE OF THE SERVICE

5.1    Lawful use

The Customer must not use the Service, attempt to use the Service or allow the Service to be used in any way that:

(a)    constitutes a breach of any Law;

(b)    results in Fonality being in breach of, or in any way involved in a breach of, any Law;

(c)    is offensive, immoral, indecent, pornographic, racist, menacing, threatening or abusive or likely to damage the reputation of Fonality;

(d)    is defamatory or tortious or constitutes a breach of confidence or Intellectual Property Rights;

(e)    incites discrimination, hatred or violence towards a person or group of people;

(f)    interferes with the provision of any services by Fonality to its other customers; or

(g)    is misleading or deceptive.

5.2    Reselling the Service

The Customer must not resell any part of the Service or use the Service to provide a service to any third party.

5.3    Tampering with the Hardware or Services

(a)    The Customer must not alter or reconfigure the Hardware, change the electronic serial number or equipment identifier of the Hardware or perform a factory reset of the Hardware, without the written consent of Fonality.

(b)    The Customer must not hack or disrupt the Service or make any use of the Service that is inconsistent with its intended use or purpose or attempt to do so.

5.4    Fraudulent use of the Service

(a)    The Customer must notify Fonality immediately if the Customer becomes aware at any time that the Service is being fraudulently used or accessed by a third party.

(b)    Until such time as Fonality receives a notice from the Customer under clause 5.4(a), the Customer will be liable for all use of the Service and corresponding Charges.

5.5    User names and passwords

(a)    The Customer is responsible for keeping safe and secure, and not disclosing to any third party, any user names and passwords in connection with the Service and any Hardware.

(b)    Fonality is not liable for any Losses incurred by the Customer in connection with any user names or passwords of the Customer that are lost, stolen or disclosed to any third party.

5.6    Fair Use Policy

(a)    In order to ensure that all Fonality customers are able to access Fonality's services, the Customer must comply with the Fair Use Policy.

(b)    Fonality may vary the terms of the Fair Use Policy from time to time and the Customer must comply with the current version of the Fair Use Policy available at http://www.fonality.com.au/fair-use-policy

5.7    Data

The Customer is liable for any Losses that may arise in connection with any data transmitted by or to the Customer using the Service.

5.8    Intellectual Property

(a)    Fonality is the owner or licensor of the Intellectual Property Rights in the Service, Hardware, information, documents and other materials used by Fonality to provide the Service.

(b)    Nothing in this agreement gives any Intellectual Property Rights in any materials to the Customer.

(c)    The Customer must not reverse compile, disassemble, reverse engineer or otherwise attempt to derive the source code of any firmware or software provided in connection with the Service.

6    TELEPHONE NUMBERS AND THE IPND

6.1    Direct -in-dial (DID) numbers

(a)    Fonality will provide the Customer with one DID number per User extension. Additional DID numbers may be purchased by the Customer from Fonality for an additional charge, as advised by Fonality from time to time.

(b)    The Customer does not own any DID numbers.

(c)    The Customer must return all DID numbers to Fonality upon expiration or termination of this agreement, unless porting arrangements have been made between the parties.

6.2    Geographic numbering

(a)    Fonality will allocate numbers to the Customer in accordance with the Telecommunications Numbering Plan 1997 (Numbering Plan). Fonality will allocate to the Customer ten digit telephone numbers that are representative of the Customer's geographical location (Numbers). The Customer has a right to use the Numbers in accordance with applicable Communications Alliance codes.

(b)    The Customer is not the owner of the Numbers. The Customer's right to use the Numbers will terminate upon the termination or expiry of this agreement, unless the Numbers are ported to another service provider.

(c)    Fonality will comply with the Numbering Plan and may alter or replace any Number as a result of compliance with the Numbering Plan or in order to comply with any direction given by the ACMA.

(d)    The Numbering Plan stipulates that a geographic number must not be used except in connection with the supply of a local service corresponding to that geographic number and, therefore, geographic numbers should only be used from their allocated geographic area.

(e)    If the Customer is located in an area which is not the charging district for the geographic number issued to the Customer:

(i)    calls to the number from within the area the Customer is located may be charged as if the Customer was located within the area of the relevant charging district for the geographic number; and

(ii)    the Customer may not be able to port the number to another service provider.

(f)    The Customer must not do anything which results in Fonality being in breach of the Numbering Plan.

6.3    IPND

Fonality, like other carriage service providers, is required by law to supply the Customer's name, address, phone number and certain other details to the IPND Manager for inclusion in the IPND. The IPND is maintained by the IPND Manager and Fonality has no liability to the Customer in connection with any breach by the IPND Manager of its obligations in relation to the IPND, including any publication or disclosure by the IPND Manager of IPND data in public number directories contrary to any instructions given by the Customer to Fonality.

6.4    Porting Numbers

(a)    If, on termination or expiry of this agreement, the Customer requests that Fonality port the Number used by the Customer to another service provider, Fonality will port that Number in accordance with the requirements of any applicable Communications Alliance codes.

(b)    If the Customer makes such a request, the Customer appoints Fonality as its agent for the purposes of completing any form authorising the porting of the number on the Customer's behalf. It may not always be technically feasible for Fonality to port a Number.

7    EMERGENCY SERVICES

7.1    Emergency Calls

(a)    The ability to make an Emergency Call is contingent upon:

(i)    the accuracy of the information provided by the Customer to Fonality in relation to the physical location of the Service; and

(ii)    the availability of a fully functional broadband connection to the internet.

(b)    In the event of a power failure or outage or disruption to the Customer's broadband connection, the Customer will not be able to use the Service to make an Emergency Call.

(c)    In the event that the Service is suspended or terminated by Fonality, the Customer will not be able to make an Emergency Call.

(d)    Fonality is not liable to the Customer in connection with the Customer's inability to make an Emergency Call if such inability is a result of:

(i)    a power failure or outage;

(ii)    the Customer's broadband connection being disrupted or unavailable;

(iii)    a suspension or termination of the Service in accordance with the terms of this agreement; or

(iv)    any other service outage.

7.2    Interception

Fonality may, at any time and in its absolute discretion, monitor and intercept the Customer's or any other person's use of the Service if required or authorised to do so by Law.

7.3    Calling Number Display (CND)

(a)    The Number from which the Customer calls a person will be sent to and will be visible on the screen of the receiving hardware of such person, unless the Customer notifies Fonality that it wishes to deactivate CND or the Customer deactivates CND through a function on the Hardware.

(b)    If a party calling the Customer has not deactivated CND, the telephone number of the party calling the Customer will be displayed to the Customer on the screen of the Hardware of the Number that is called.

(c)    The Number from which the Customer makes an Emergency Call will be displayed to the emergency service provider when the Customer makes such a call, regardless of whether it has deactivated CND.

8    DIRECTORY ASSISTANCE AND OPERATOR SERVICES

8.1    Operator services

Operator Services are available 8:30 am to 5:30 pm, Monday - Friday, NSW time, excluding public holidays.

8.2    Directory assistance services

Directory assistance is available at the applicable rates set forth on our standard rate sheet. The rate sheet is available upon request.

9    BILLING AND CHARGES

9.1    Credit checks

(a)    Fonality may require the Customer to undergo a credit check prior to Fonality providing the Customer with a Service. Fonality may refuse to supply a Service to the Customer if the Customer fails such credit check or Fonality considers the Customer represents a credit risk.

(b)    If Fonality requires the Customer to undergo a credit check, the Customer must provide Fonality or its nominated credit agency with such accurate and up-to-date information as may be requested by Fonality to enable Fonality or its nominated credit agency to make a proper assessment of the Customer's credit standing.

9.2    Charges

(a)    Fonality will invoice the Customer:

(i)    monthly in advance for all Recurring Charges;

(ii)    monthly in arrears for all Additional Charges; and

(iii)    for all other charges, when incurred.

(b)    In the event that the Customer's use of the Service in a particular month is lower than the Included Volume of Calls, the Customer will not be entitled to:

(i)    a refund of any Recurring Charges; or

(ii)    make use of any unused volume of the Included Volume of Calls in the following month.

9.3    Rounding

Fonality may round up to the nearest minute calls made by the Customer using the Service.

9.4    Variations to the Charges

Fonality may at any time vary the Charges by providing the Customer with not less than 30 days notice.

9.5    Electronic invoices

(a)    Fonality will provide the Customer with electronic invoices.

(b)    Fonality will not provide the Customer with a paper invoice except where the Customer agrees to pay a reasonable charge, as notified by Fonality to the Customer.

9.6    Payment

(a)    The Customer must pay all Charges within thirty (30) days after the date Fonality issues an invoice in respect of such amounts.

(b)    The Customer must make such payments in Australian currency, without any set-off, counter-claim, deduction or withholding.

9.7    Payment dispute

(a)    If the Customer disputes that an amount invoiced by Fonality under this agreement is payable, the Customer must:

(i)    notify Fonality of the dispute within 14 days of the date Fonality issued the invoice; and

(ii)    pay to Fonality any invoiced amounts that are not in dispute.

(b)    If it is determined that the disputed amount is payable by the Customer, the Customer must immediately pay to Fonality the disputed amount.

9.8    GST

(a)    Unless stated otherwise, all consideration provided under this agreement is exclusive of GST. If GST is payable by the supplier, the recipient must, upon receipt of a tax invoice from the supplier, pay the supplier an amount equal to the GST payable on that supply.

(b)    Terms used in this clause 9.8 which are not defined in this agreement, but which are defined in the GST Law, have the meanings given in the GST Law.

10    PRIVACY

10.1    Collection of Personal Information

(a)    In order for Fonality to comply with its obligations under this agreement, Fonality may from time to time collect Personal Information from the Customer, including the Personal Information of Users.

(b)    The Customer must provide all required notices to and obtain all necessary consents from all Users to permit Fonality to collect, use and disclose the Personal Information of such Users for the purposes of this agreement.

10.2    Consents

(a)    The Customer consents, and must procure the consent of its Users, to Fonality's collection, use and disclosure of the Personal Information collected from the Customer for purposes including:

(i)    assessing creditworthiness;

(ii)    all purposes associated with the provision of any Services;

(iii)    billing the Customer, which may be provided from a location in another country and involve the transfer of Personal Information to such other country;

(iv)    the provision of Support Services, which may be provided from a location in another country and involve the transfer of Personal Information to such other country;

(v)    assisting law enforcement agencies in relation to the enforcement of criminal and other laws;

(vi)    assisting in internal investigations conducted by Fonality into suspected fraud, misuse of any Services or other unlawful activities; and

(vii)    complying with applicable Laws.

(b)    The Customer consents, and must procure the consent of its Users, to Fonality's disclosure of the Personal Information collected from the Customer to:

(i)    Fonality's Related Bodies Corporate; and

(ii)    Fonality's service providers, content providers, distributors and agents both in Australia and overseas,

for purposes related to providing the Customer with any Services or Support Services.

10.3    Compliance with Privacy Laws

Fonality will comply with the Privacy Laws when dealing with the Personal Information of the Customer and its Users.

11    CONFIDENTIALITY

11.1    Confidential Information

In this clause, Confidential Information means information disclosed by or on behalf of one party (Discloser) to the other party (Recipient) or of which the Recipient becomes aware, during the Term or in prior discussions between the parties in anticipation of this agreement, including:

(a)    information designated as confidential by the Discloser; and

(b)    any other information which by its nature should reasonably be considered to be confidential information of the Discloser or of a person to whom the Discloser owes a duty of confidence.

Confidential Information may be provided in writing, electronically, verbally or otherwise. Confidential Information does not include any information which the Recipient can prove either is in the public domain or was known by the Recipient at the time of disclosure, other than through a breach of this agreement.

11.2    Obligations

The Recipient must:

(a)    subject to clause 11.3, keep confidential and not disclose to any person any Confidential Information;

(b)    not use or permit the use of any Confidential Information for any purpose other than that contemplated by this agreement, unless authorised by a separate agreement between the parties; and

(c)    establish and maintain comprehensive security measures to ensure that all Confidential Information in its possession, custody or control is secure at all times. Without limiting this obligation, the Recipient must keep all Confidential Information no less secure than its own confidential information.

11.3    Permitted disclosure

The Recipient may disclose Confidential Information:

(a)    as expressly required or permitted by this agreement (if applicable);

(b)    with the consent of the Discloser; or

(c)    to the extent required by law, by an order of a court or of a regulatory body or by the listing rules of the ASX Limited.

11.4    Required disclosure

If the Recipient is required under clause 11.3(c) to disclose any Confidential Information, the Recipient must before doing so:

(a)    notify the Discloser; and

(b)    if possible, give the Discloser a reasonable opportunity to take any steps it considers necessary to protect the confidentiality of the Confidential Information.

12    SUSPENSION OF SERVICE

12.1    Suspension

(a)    Fonality may suspend the Service (or part of it) if:

(i)    the Customer is in breach of this agreement;

(ii)    the Customer fails to pay an invoice from Fonality by the due date;

(iii)    the Customer connects hardware to the Service which is not included in the list of authorised hardware specified by Fonality;

(iv)    in Fonality's opinion, the Charges accrued by the Customer for that month are unusually high or otherwise contrary to the Fair Use Policy;

(v)    Fonality considers it necessary for maintenance, repair or similar operational reasons;

(vi)    Fonality reasonably suspects fraud or other illegal conduct in connection with the use of the Services by the Customer or any other person; or

(vii)    a Force Majeure Event or a catastrophic stoppage of Service occurs.

(b)    Where practicable, Fonality will provide the Customer reasonable notice before suspending the Service.

12.2    Consequences of suspension

If Fonality suspends the Service pursuant to clauses 12.1(a) (vii):

(a)    Fonality must use its reasonable endeavours to recommence supply of the Services, as soon as practicable; and

(b)    the Customer will be entitled to a refund of relevant Recurring Charges in relation to the unused portion of the Included Volume of Calls for the period the Service is suspended.

13    TERM AND TERMINATION

13.1    Term

(a)    If the Application Form provides for Renewal Periods, upon expiration of the Initial Term, this agreement will continue for the specified Renewal Periods, unless a party has provided 30 days notice of termination prior to the expiration of the Initial Term or any subsequent Renewal Period.

(b)    If the Application Form does not provide for Renewal Periods, upon expiration of the Initial Term this agreement will continue until it is terminated by either party giving not less than 30 days notice of termination to the other party.

13.2    Termination by the Customer

(a)   The Customer may terminate this agreement immediately (or later if so stated in the notice) by giving notice of termination to Fonality if Fonality is in breach of any obligation under this agreement and the breach cannot be remedied, but, if the breach is capable of remedy, only when Fonality does not remedy the breach after receiving 30 days notice from the Customer to do so.

13.3    Termination by Fonality

Fonality may terminate this agreement immediately (or later if so stated in the notice) by giving notice of termination to the Customer if:

(a)    the Customer is in breach of any obligation under this agreement and the breach cannot be remedied, but, if the breach is capable of remedy, only when the Customer does not remedy the breach after receiving 30 days notice from Fonality to do so;

(b)    without the written consent of Fonality:

(i)    there is a change in control, ownership or management of the Customer, where "control" includes the ability to determine the outcome of financial or operating policies of the Customer; or

(ii)    the Customer sells or otherwise disposes of substantially all of its business assets to a third party;

(c)    Fonality has reasonable grounds to suspect fraud or other illegal conduct in relation to the Services, by the Customer or any other person using the Services;

(d)    Fonality suspends the Service for a period of 30 days or more in accordance with clause 12.1(a);

(e)    any licence, authorisation, consent, approval or permit required by Fonality to supply the Services cannot be obtained from, or is withdrawn by, any Government agency or other third party;

(f)    the Customer becomes, threatens, resolves to become or in the reasonable opinion of Fonality is likely to become subject to any form of insolvency, administration, receivership or liquidation;

(g)    the Customer enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management;

(h)    the Customer is unable to pay its debts as and when they become due and payable or is deemed to be insolvent under any provision of the Corporations Act 2001;

(i)    an event occurs in relation to the Customer which is analogous to anything referred to above or which has a substantially similar effect; or

(j)    the Customer ceases to carry on all or a substantial part of its business.

13.4    Consequences of termination

On the termination or expiry of this agreement:

(a)    Fonality will cease to supply the Services;

(b)    the Customer must immediately pay to Fonality all Charges due and payable; and

(c)    each party must promptly return, or at the other party's direction destroy, any Confidential Information of the other party in its possession, custody or control.

14    WARRANTIES

14.1    Mutual warranties

Each party represents and warrants to the other party that:

(a)    its execution of this agreement has been properly authorised;

(b)    this agreement constitutes a legal, valid and binding obligation on it; and

(c)    this agreement does not conflict with or result in the breach of or default under any provision of its constitution or any provision of any law to which it is subject.

14.2    Warranties excluded

Subject to any condition, warranty or right implied by the Trade Practices Act 1974 or any other law which cannot lawfully be excluded:

(a)    Fonality gives no warranties, whether in relation to service standards, reliability, availability or otherwise, and the Customer has no other rights, apart from those expressly set out in this agreement; and

(b)    all implied conditions, warranties and rights are excluded.

14.3    Statutory warranties

Where any condition, warranty or right is implied by law and cannot lawfully be excluded, Fonality limits its liability for breach of that implied condition, warranty or right:

(a)    subject to the qualifications in section 68A of the Trade Practices Act 1974 or any other law:

(i)    in connection with the supply of goods, to any one or more of the following (as Fonality may determine):

(A)    the replacement of the goods or the supply of equivalent goods;

(B)    the repair of the goods;

(C)    the payment of the costs of replacing the goods or of acquiring equivalent goods; or

(D)    the payment of the costs of having the goods repaired; and

(ii)    in connection with the supply of services, to one of the following (as Fonality may determine):

(A)    the supplying of the services again; or

(B)    the payment of the costs of having the services supplied again; and

(b)    otherwise, to the extent permitted by law.

15    INDEMNITY

15.1    Subject to clause 15.2, the Customer must indemnify Fonality in respect of any Loss incurred by Fonality, directly or indirectly, in connection with:

(a)    any breach by the Customer of any provision of this agreement;

(b)    any fraudulent act or omission of the Customer or its Users;

(c)    any loss, destruction or damage to the Hardware by fire, accident, theft or any other cause, while the Hardware is in the possession, custody or control of the Customer or its Users; and

(d)    any negligent act or omission of the Customer or its Users in connection with this agreement.

15.2    The Customer's liability to indemnify Fonality will be reduced proportionally to the extent that any of Fonality's acts or omissions contributed to the Loss.

16    LIABILITY

16.1    Indirect loss

Subject to clause 16.2, and despite any implication arising from any other provision of this agreement, Fonality will not be liable to the Customer in contract, in tort (including negligence), under any statute (to the extent permitted by law) or otherwise for, or in respect of, any:

(a)    indirect or consequential loss or damage; or

(b)    loss of profits, sales, turnover, reputation (or damage to it), production, anticipated savings, goodwill, business opportunities, customers, software or data, whether of a direct, indirect or consequential nature,

suffered by the Customer or any other person in connection with this agreement.

16.2    Liability cap

Subject to this clause 16 and despite any implication arising from any other provision of this agreement, the total liability of Fonality in contract, in tort (including negligence), under statute (to the extent permitted by law) or otherwise for, or in respect of, any direct loss or damage arising out of any breach or other act or omission of Fonality in connection with this agreement will not exceed one month of Recurring Charges.

17    FORCE MAJEURE

17.1    No liability

A party is not liable for any failure to observe its obligations under this agreement where such failure is wholly or substantially due to a Force Majeure Event, provided that the party seeking to rely on the benefit of this clause:

(a)    as soon as reasonably practicable, notifies the other party of the extent to which it is unable to perform its obligations; and

(b)    uses its best endeavours to mitigate the adverse effects of the Force Majeure Event and perform its obligations under this agreement as quickly as possible.

17.2    Termination

Where a Force Majeure Event prevents a party from performing a material obligation under this agreement for a period in excess of 30 days, the other party may by notice terminate this agreement, which will be effective immediately, unless otherwise stated in the notice.

18    RESOLUTION OF DISPUTES

18.1    No litigation

(a)    Subject to clause 18.1(b), unless a party has complied with clauses 18.2, 18.3 and 18.4, that party may not commence litigation or arbitration relating to any dispute arising from this agreement except where that party seeks urgent interlocutory relief, in which case that party need not comply with this clause before seeking the relief.

(b)    This clause 18 does not exclude or limit the ability of a party to refer any dispute to the Telecommunications Industry Ombudsman.

18.2    Notice

A party claiming that a dispute has arisen in connection with this agreement (first party) must give notice to the other party designating, as its representative in negotiations relating to the dispute, a person with authority to settle the dispute and the other party must, within 10 days of receipt of the notice, give notice to the first party and each other party acknowledging the dispute and designating a corresponding representative for itself.

18.3    Representatives

The parties must ensure that the designated persons (Representatives), within 10 days of notice being given of the last designation required by clause 18.2, use their best endeavours to resolve the dispute.

18.4    Process

If a dispute is not resolved within the 10 day period referred to in clause 18.3 (or any further period agreed by the Representatives in writing) the parties must ensure that the Representatives within a further 10 days (or any further period agreed by the Representatives in writing) use their best endeavours to agree on a process for resolving the whole or any part of the dispute through means other than litigation or arbitration, such as further negotiations, mediation, conciliation, independent expert determination or appraisal. The parties must ensure that the Representatives also use their best endeavours to agree on:

(a)    the procedure and timetable for any exchange of documents and other information relating to the dispute;

(b)    procedural rules and a timetable for the conduct of the selected mode of proceeding;

(c)    a procedure for selection and compensation of any neutral person who may be employed by the parties in dispute; and

(d)    whether the parties should seek the assistance of a dispute resolution organisation.

18.5    Commencement of litigation

If:

(a)    a party has failed to appoint a Representative as required by this clause 18; or

(b)    the time established by or agreed under clause 18.4 for agreement on a dispute resolution process has expired,

a party which has complied with this clause 18 may, by notice to the other party, terminate the process and commence litigation.

19    NOTICES

19.1    Requirements

Any notice given in connection with this document must be in writing and must be addressed to a party and either:

(a)    hand delivered to, or sent by post to, the party's registered office, principal place of business or any other address the party notifies for the service of notices;

(b)    sent by fax to any fax number the party notifies for the service of notices; or

(c)    sent by email to any email address the party notifies for the service of notices.

19.2    When given

A notice is taken to have been given:

(a)    in the case of being hand delivered, on the date on which it is delivered;

(b)    in the case of being sent by post, on the third (seventh if sent to an address in another country) day after the date of posting;

(c)    in the case of being sent by fax, at the time of dispatch as confirmed by a transmission report by the sending machine; and

(d)    in the case of delivery by email, at the time sent.

20    ASSIGNMENT

The Customer may only assign this agreement or any part of it if it obtains the written consent of Fonality. Fonality may assign this agreement or any part of it by providing notice in writing of the assignment to the Customer.

21    GOVERNING LAW

This agreement is governed by the law in force in New South Wales.

22    JURISDICTION

The parties submit to the jurisdiction of the courts of New South Wales.

23    ENTIRE AGREEMENT

This agreement:

(a)    records the entire agreement between the parties; and

(b)    supersedes all previous negotiations, understandings, representations and agreements,

in relation to the subject matter of this agreement.

 

 

© 2007 Fonality, Inc. All rights reserved. Unauthorized duplication is a violation of applicable laws.