EFEX Standard Form of Agreement

TABLE OF CONTENTS

 

Background

This is a Standard Form of Agreement formulated for the purposes of Part 23 of the Telecommunications Act 1997 (Cth.) and sets out the general terms and conditions under which ThinkEx Holdings Pty Ltd (EFEX) has agreed to supply services to the Customer.

 

PART A: DEFINITIONS AND INTERPRETATION

1. Definitions

1.1 Definitions

 In this Agreement:

Agreement means this document (the Standard Form of Agreement), the applicable Service Schedule(s), (including any attachments and annexures thereto) and any EFEX protocols, price lists, rules, operations manuals and policies which are published on EFEX’s website or notified to the Customer, as amended from time to time;

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth.);

EFEX Equipment means equipment that EFEX, its affiliates or its Supplier owns or uses that it allows the Customer to use or access in relation to the Services.

EFEX Infrastructure means any facilities, network or equipment, including EFEX Equipment, owned or used by EFEX, its affiliates or its Supplier;

Business Day means a day which is not a Saturday, Sunday or public holiday in the state that the Service is supplied;

Business Hours means 9.00 am to 5.00 pm on a Business Day;

Charge means a fee payable by the Customer to EFEX for Services or Supplied Equipment;

Claim means any allegation, suit, action, demand, cause of action, judgement or proceeding of any kind made in respect of any Loss under or in connection with this Agreement;

Confidential Information of a Party means information in any form that is disclosed to, received by or discovered by the other Party under or in connection with this Agreement and:

(a)        is designated by the discloser to be confidential;

(b)        is by its nature confidential; or

(c)        is information which the recipient ought to know is confidential;

but does not include information that:

(d)        is or becomes part of the public domain through no act, omission or default of the recipient;

(e)        is disclosed to the recipient by a third party who lawfully possesses the information and who is not obliged to keep it confidential; or

(f)         was in the recipient Party’s possession before it was disclosed to the recipient or was received or discovered by it;

Consequential Loss means loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages;

Consumer Guarantee means a guarantee under Part 3-2, Division 1 of the Australian Consumer Law;

Control has the meaning given to it in the Corporations Act;

Corporations Act means the Corporations Act 2001 (Cth);

CPI means the Consumer Price Index, All Groups Index Number published by the Australian Bureau of Statistics;

Critical Information Summary means the document on EFEX’s website that sets out a summary of the key terms of a telecommunications service or product,

CSG means the Telecommunications (Customer Service Guarantee) Standard 2011;

Customer means the Party that acquired goods or Services from EFEX pursuant to this Agreement;

Customer Equipment means all of the Customer’s fixtures, chattels, hardware, facilities, materials, fittings, plant, tools, devices, machinery, cables and equipment used in connection with a Service;

Customer Premises means locations where EFEX or a Supplier provides Services or equipment to the Customer;

Encumbrance means a mortgage, lien, loan, fixed or floating charge, or any other interest granted to a third party;

Fault means a fault or failure in the Service;

Fixed Term Service means a Service supplied for a fixed Initial Term with a minimum Charge per month;

Fixed Term Charge means the Charge payable for a Fixed Term Service for the Initial Term.

Force Majeure Event means an event or cause beyond the reasonable control of the Party claiming force majeure, including:

(a)        acts of God or nature, lightning, storm, flood, fire, earthquake, explosion, cyclone, tidal wave or landslide;

(b)        strike, lockout or other labour difficulty;

(c)        acts of a public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, emergency,                epidemic or trade embargo; and

(d)        government action or inaction, change or introduction of law;

(e)        any failure of supply;

GST has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Initial Term means the minimum period specified in a Service Contract and which commences on the RFS Date;

Intellectual Property means all rights in industrial and intellectual property, in Australia and worldwide, including without limitation, any copyright, moral rights, trade or service marks, patents, registered and unregistered trademarks, registered designs, trade secrets, knowhow, rights in relation to semiconductors and circuit layouts or designs, formulas, components, concentrations, protocols, trade, business or company names, indication or source or designation of origin, or other proprietary right, or right to registration of such rights;

Laws means, including but not limited to, any statute, law, rule, regulation, proclamation, ordinance, by-law, direction or determination of a Regulatory Authority, statutory instrument, industry code, order, guidelines or standard;

Loss means any loss, damage, cost, interest, tax expense, debt, fee, penalty, fine, forfeiture, assessment, liability or damages suffered or incurred by a person;

Major Failure means:

(a)      in regard to a good:

(i)      it has a problem that would have stopped someone from buying it if they had known about it;

(ii)     it has multiple minor problems that, when taken as a whole, would have stopped someone from buying it if they had known about    them;

(iii)    it is significantly different from the sample or description;

(iv)   it is substantially unfit for its common purpose and can’t easily be fixed within a reasonable time

(v)    it doesn’t do what you asked for and cannot easily be fixed within a reasonable time; or

(vi)   it is unsafe.

(b)      in regard to a service:

(i)     it has a problem that would have stopped someone from buying it if they had known about it;

(ii)    it has multiple minor problems that, when taken as a whole, would have stopped someone from buying it if they had known about them;

(iii)    it is substantially unfit for its common purpose and cannot easily be fixed within a reasonable time;

(iv)    it does not meet the specific purpose you asked for and cannot easily be fixed within a reasonable time; or

(v)    it creates an unsafe situation.

Minor Failure means a failure in a good or service that is not a Major Failure.

Party means a party to this Agreement;

Personal Information has the same meaning as in the Privacy Act 1988 (Cth).

Personnel means, in respect of a Party, its employees, directors, agents, representatives and contractors;

PPSA means the Personal Property Securities Act 2009 (Cth);

Rebate means the rebate, if any, applicable for EFEX’s failure to meet the Service Level for a particular Service, as specified in the SLA;

Regulatory Authority means any of the Australian Communications and Media Authority, the Department or Minister of Communications and the Arts, the Australian Competition and Consumer Commission, the Communications Alliance, the Telecommunications Industry Ombudsman or any other government or statutory body or authority having relevance to this Agreement;

RFS Date means the earlier of the date that EFEX informs the Customer that a Service is operational and ready for service, when the Service is made available to the Customer, or when the Customer commences to use the Service;

Scheduled Maintenance means maintenance that EFEX or a Supplier considers is required to ensure that it achieves Service Levels or maintains an appropriate level of service;

Security Deposit means an amount that EFEX may require the Customer to pay to EFEX in order for EFEX to manage the financial risk of providing goods or Services to the Customer.

Service means a product or service supplied by EFEX to the Customer under this Agreement, as more particularly specified in a Service Schedule;

Service Contract means a contract between EFEX and the Customer for the provision of Services, formed by EFEX's acceptance of a Service Order.

Service Level means the standard of service set out in the Service Level Agreement or SLA (if applicable);

Service Level Agreement or SLA means the document that sets out the standard of service to be provided by EFEX in relation to that Service (if applicable);

Service Order means an application from the Customer to EFEX for the provision of Services and when accepted by EFEX forms a Service Contract;

Service Schedule means a schedule to this Agreement which sets out terms and conditions and any other relevant information that is specific to a particular Service;

Special Conditions means any additional terms and conditions, or variations to the terms and conditions, which are agreed between the Parties, as set out in a Service Contract;

Supplied Equipment means equipment that EFEX or a Supplier supplies to the Customer whether for loan, rent or sale as required to provide the Service (and as described in the Service Contract).

Supplier means a third party telecommunications carrier, carriage service provider, supplier of telecommunications services, equipment supplier, software licensor or supplier that is used by EFEX to supply the Service to the Customer;

Supplier Infrastructure means any facilities, network or equipment owned or used by a Supplier;

Term is defined in clause 3.

1.2 Interpretation

In this Agreement, headings are for convenience only and do not affect interpretation and, unless the contrary intention appears:

(a) a reference to a person includes a reference to a corporation, trust, partnership, association or other entity and vice versa;
(b) the singular includes the plural and vice versa;
(c) if an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
(d) a word defined in this document and used but not defined in other parts of the Agreement, has the meaning given to it in this document;
(e) a provision of this Agreement must not be construed adversely to a Party solely because that Party drafted this Agreement or any part of it;
(f) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;
(g) reference to a clause or schedule is a reference to a clause of or schedule to this Agreement;
(h) reference to a Party includes its successors and assigns;
(i) reference to a Party’s act, omission or negligence is also a reference to the act, omission or negligence of any person who is under that Party’s                control;
(j) reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-                    enactments or replacements of any of them.
PART B: PROVISION OF SERVICES

2. Formation of Agreement

2.1 Service Schedule

EFEX will supply Services in accordance with a Service Schedule and a Service Contract. Upon the formation of a Service Contract, the terms of this Agreement apply to the Service Contract except to the extent explicitly excluded in the Service Contract. EFEX reserves the right to conduct a feasibility study and may reject all or part of a Service Order in its reasonable discretion.

2.2 Precedence

To the extent of any inconsistency between the Standard Form of Agreement, a Critical Information Summary, a Service Contract, a Service Schedule, EFEX protocols, price lists, rules and policies will be read in the following descending order of precedence:

(a) any Special Conditions set out in a Service Contract but only as relevant to the specific Service Contract and not to other Service Contracts;
(b) a Service Contract but only as relevant to the specific Service Contract and not to other Service Contracts;
(c) an applicable Critical Information Summary;
(d) a Service Schedule;
(e) this Standard Form of Agreement;
(f) EFEX protocols, price lists, rules and policies including any acceptable use policy published on the EFEX website or otherwise notified to the                  Customer. 

3. Term

3.1 Unless terminated in accordance with the Agreement, a Service Contract remains in force for the Initial Term. Upon expiry of the Initial Term, a Service Contract continues on a month to month basis until terminated by either Party giving the other Party at least 30 days written notice of termination. Any Special Conditions do not apply after expiry of the Initial Term unless otherwise agreed in writing.

4. Service Level Agreement

4.1 EFEX will provide the Services in a professional manner expected of a competent and experienced supplier, and in accordance with best industry practice, Laws, and Service Levels set out in an applicable SLA.

4.2 The Customer agrees that the CSG does not apply to the provision of Services under this Agreement and the Customer waives its rights under the CSG.

4.3 If a SLA applies, the remedies set out in the SLA are the sole remedies available to the Customer in relation to any Claim arising from EFEX's failure to achieve a Service Level.

4.4 The Customer may apply in writing for any applicable Rebate under an SLA within 60 days of the end of the month in which a failure to achieve a Service Level occurred and if it does not do so, the Rebate is forfeited.

4.5 The Customer agrees that the performance and availability of the Service is not warranted beyond the SLA and that EFEX does not represent that the Service will be compatible with particular computer systems, software, data formats, equipment, or operating systems unless provided to the Customer by EFEX or expressly stated in the Agreement.

5. Supply of Services

5.1 EFEX will make all reasonable efforts to provision a Service in accordance with agreed target dates, however it is agreed that target dates are an estimate only and EFEX is not liable for any failure to supply a Service by the scheduled date. The Customer agrees that the CSG does not apply to the provision of Services under this Agreement and the Customer waives its rights under the CSG.

5.2 EFEX will comply with all reasonable directions of the Customer when accessing Customer Premises.

5.3 Additional charges may apply to those agreed in a Service Contract if the Service requires services from a Supplier. If additional Supplier charges apply, the Service will be placed on hold pending the Customer agreeing to pay the Supplier charge. If the Customer agrees, the Supplier charge will be billed to the Customer. If the Customer declines to pay the Supplier charges, the Service Contract will be terminated without the application of an early termination charge or varied as agreed between the Parties.

5.4 EFEX may monitor the Customer's usage of the Service and communications sent via the Service for billing, network monitoring, network management and if required by Law, but always in accordance with and subject to Law.

6. Supplied Equipment

6.1 If agreed in a Service Contract, EFEX or a Supplier will provide Supplied Equipment to the Customer.

6.2 The Service Contract will state if Supplied Equipment is being loaned, rented or purchased. If loaned or rented, the equipment may have been previously used.

6.3 Title in purchased Supplied Equipment passes to the Customer when it has paid the full purchase price and until that time the Customer holds the Supplied Equipment as bailee for EFEX or the Supplier. EFEX or the Supplier retains title in loaned or rented Supplied Equipment. Unless and until title in Supplied Equipment passes to the Customer, the Customer must fully insure the Supplied Equipment for its replacement value and at EFEX's request provide a certificate of currency of the insurance.

6.4 Risk in Supplied Equipment passes to the Customer upon delivery to the Customer's Premises or on pick up if being picked up by or on behalf of the Customer from EFEX or the Supplier.

6.5 Charges for rented Supplied Equipment will be set out in the Service Contract and must be paid by the Customer.

6.6 The Customer must keep loaned or rented Supplied Equipment in good repair (fair wear and tear excepted) and free from any encumbrance.

6.7 EFEX or the Supplier may repair or replace defective Supplied Equipment, however if the defect is the result of the Customer's misuse, unauthorised repair or modification, the Customer is liable for the cost of the repair or replacement.

6.8 If it is able to do so, EFEX assigns any manufacturer's warranty in purchased Supplied Equipment to the Customer. To the extent legally permissible (and subject to any applicable Consumer Guarantees), EFEX does not provide any further warranty in regard to Supplied Equipment.

7. EFEX Equipment and Infrastructure

7.1 The Customer permits EFEX, its contractors or Suppliers, to access the Customer Premises to maintain, replace or remove Supplied Equipment, EFEX Equipment or EFEX Infrastructure.

7.2 Access granted under clause 7.1 is subject to EFEX, its contractors and Suppliers complying with the reasonable directions of the Customer in respect of accessing the Customer Premises.

7.3 The Customer must allow EFEX or Suppliers to do anything necessary to establish or demonstrate that EFEX or the Supplier owns the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer. The Customer must not remove any serial numbers or EFEX or Supplier insignias from the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer or allow or create any encumbrance to be created in relation to the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer.

7.4 The Customer must ensure that appropriate care is taken of the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer and, fair wear and tear excluded, is responsible for damage or theft of the EFEX Infrastructure, Supplier Infrastructure or Supplied Equipment that has not been fully paid for by the Customer.

8. The Customer's obligations

8.1 Use and supply of Services

The Customer must

(a) comply with and ensure that its Personnel comply with all relevant Laws and requirements of Regulatory Authorities with regard to the use of the      Service;

(b) ensure that it has all necessary licences, approvals, or permits required for the installation and operation of equipment at the Customer Premises      including where necessary the consent of the owner of the premises;

(c) provide any necessary assistance for EFEX or the Supplier to obtain any licences, approvals, or permits to provide the Services or install equipment;

(d) provide EFEX or the Supplier with all information and assistance reasonably required for EFEX and/or a Supplier to provide the Services and meet    its obligations under this Agreement;

(e) provide EFEX or the Supplier with safe and prompt access to Customer Premises for the purpose of delivering Services;

(f) provide EFEX with prompt access to the Customer's Personnel, information, equipment and data if reasonably required for the purpose of delivering      Services;

(g) ensure that adequate space, electricity, air conditioning and earthing is provided for safe and adequate installation and operation of equipment          necessary for the Service;

(h) take reasonable steps to ensure that nothing is done or omitted to be done that could interfere with the operation of EFEX Infrastructure;

(i) provide and maintain its own equipment, network and network security where relevant to the operation of Services;

(j) take reasonable steps to ensure that cabling at the Premises used in the provision of the Services has been installed by a registered cabler and complies with applicable standards;

(k) comply with applicable operational requirements, procedures and technical specifications reasonably required by EFEX or the Supplier;

(l) ensure that the Service is not used in a manner that interferes with EFEX Infrastructure, Supplier Infrastructure or services provided to other parties;

(m) use all reasonable efforts to ensure that the Service is not used to transmit viruses or other material that is designed to or could interfere with the    functions of software or hardware;

(n) not resell or resupply the Services to any third party.

(o) not and ensure that its Personnel does not, do any act or omission that will or may compromise the security or integrity of EFEX’s Infrastructure or a Supplier’s Infrastructure.

8.2 The Customer accepts that it is responsible for any risks and Charges relating to the use of the Service by the Customer, including non-authorised use.

8.3  Any IP address space that is provided to the Customer by EFEX remains EFEX’s property and must be immediately relinquished by the Customer to EFEX upon EFEX’s request, upon termination of a relevant Service or upon termination of the Agreement.

9. Faults

9.1 If a Fault occurs the Customer must attempt to diagnose its cause prior to contacting EFEX to determine that the Fault is not caused by Customer Equipment, the Customer's software, electrical supply, content or services that are not supplied by EFEX. The Customer is responsible for rectifying Faults relating to Customer Equipment, the Customer's software, electrical supply, content or services that are not supplied by EFEX. and for any costs incurred by EFEX or a Supplier in relation to Faults that arise for such a reason.

9.2 After its initial diagnosis, the Customer should report a Fault to EFEX's network operations centre as soon as possible. EFEX will endeavour to rectify Faults in accordance with any applicable SLA or if a SLA does not apply within a reasonable time.

9.3 EFEX is not responsible for repairing Faults that are outside its reasonable control, including Faults relating to software developed or licensed by any third party that is used by EFEX, the Customer in relation to the Service, however EFEX may request the third party to rectify the Fault.

9.4 The Customer is liable for any reasonably incurred costs that EFEX incurs in rectifying a Fault that arises as a result of:

(a) an act or omission of the Customer, its Personnel; or

(b) defects or failures in networks, equipment, facilities or software that is not EFEX Equipment or EFEX Infrastructure.

10. Maintenance

10.1 Maintenance may be performed by EFEX, its Suppliers, or its third party software suppliers or licensors when required.

10.2 EFEX will endeavour to provide at least 10 Business Days’ notice of Scheduled Maintenance and where possible undertake Scheduled Maintenance at a time that will minimise disruption to the Customer's use of the Services. If unscheduled or urgent maintenance is required or if a Supplier undertakes maintenance, it may not be possible for EFEX to provide notice or to schedule the maintenance at a time that is convenient to the Customer.

10.3 EFEX may suspend the Service if necessary because of an emergency, to comply with a Law or direction of a Supplier, to protect persons, EFEX Equipment, EFEX Infrastructure, Supplier equipment or networks.

11. Compliance

11.1 Interception Laws

The Customer acknowledges that EFEX or a Supplier may be legally required to monitor the Service, intercept communications or retain data relating to communications over the Service if required by Law, a request from an authorised agency or a direction of a Regulatory Authority.

11.2 Illegal use

The Customer agrees that it must not use the Service:

(a) for illegal purposes;

(b) to create, publish, transmit material that is illegal, defamatory, threatening, indecent, abusive, discriminatory, in breach of confidence or confidentiality obligations, or which may damage the reputation of EFEX or a Supplier.

12. Privacy

The Customer consents to EFEX's and a Supplier’s collection, use, storage and disclosure of Personal Information of the Customer and its Personnel for purposes relating to the supply of Services to the Customer, including:

(a) disclosure to Regulatory Authorities or other third parties where required by law or to assist in the enforcement of Laws;

(b) disclosure to Suppliers for purposes relating to the supply of Services to the Customer;

(c) billing, account and relationship management, product development and marketing to the Customer;

(d) the provision or rectification of a Service.

13. Confidentiality

13.1 Each Party must keep confidential any Confidential Information provided to it by the other Party, and each Party must use the Confidential Information only for the purposes of this Agreement.

13.2 Subject to any legal obligations, upon termination of this Agreement, each Party must return any Confidential Information in its possession that belongs to the other Party and each copy of that Confidential Information, or at the option of the other Party, certify that the Confidential Information has been destroyed.

13.3 A Party may disclose Confidential Information of the other Party to the extent it is required to do so by Law, stock exchange rules, or by order of any court or Regulatory Authority.

13.4 EFEX may state that the Customer has acquired Services from EFEX in marketing material and use the Customer's trademarks and logos in the same.

14. Intellectual property

14.1 The Intellectual Property of each Party as at the date of this Agreement remains its property.

14.2 All Intellectual Property in any materials, domain names and internet protocol numbers provided by EFEX to the Customer in relation to the Services and EFEX Equipment including but not limited to installation, operation and training documentation and software remains the property of EFEX or where relevant EFEX's Supplier.

14.3 EFEX grants the Customer a non-exclusive, non-transferable, non-sublicensable licence to use the Intellectual Property owned by or licensed to EFEX during the Term for the purpose of using the Services and subject to any conditions imposed by EFEX.

14.4 The Customer's licence to use Intellectual Property owned by or licensed to EFEX is subject to:

(a) not copying any part of the Intellectual Property except where reasonably necessary for the purposes of backup/data recovery, audit and compliance purposes, or as part of the ordinary operations of internal communications systems;

(b) treating the Intellectual Property as EFEX's Confidential Information, save that:

(i) use of the Intellectual Property in accordance with and as contemplated by this clause 14 will not in itself constitute a breach of clause 13; and

(ii) the Customer will not be required to comply with clause 13 to the extent that clause 13 imposes obligations on the Customer which would otherwise apply to Intellectual Property but for the operation of sub-clauses 14.4(i) and (ii).

(c) returning all copies of the Intellectual Property to EFEX upon expiry or termination of the Agreement, or, certifying that the Intellectual Property has been destroyed.

14.5 The Customer acknowledges that it has read and agrees to be bound by the terms of any third party software licences that apply to the Customer's use of software that is used in the Services. The Customer agrees that it will reimburse EFEX in respect of any finally-adjudicated claims made by a third party software licensor arising from a breach of the third party software licence, by the Customer or its Personnel, subject to reduction of the Customer’s liability to the extent that EFEX has caused or contributed to the circumstances giving rise to the third party’s claim, and provided that EFEX takes reasonable steps to mitigate its loss.

15. Force Majeure

15.1 Except for obligations relating to payment, neither Party is in breach of this Agreement nor liable to the other Party because of a failure or delay in performing its obligations to the extent caused or partially caused, whether directly or indirectly by a Force Majeure Event.

15.2 Party relying on a Force Majeure Event must undertake reasonable steps to mitigate the effect and duration of the Force Majeure Event.

16. Termination

16.1 Termination by EFEX

EFEX may terminate a Service Contract, without liability to the Customer, by giving written notice to the Customer, if:

(a) Except as permitted by clause 25.6, immediately if a change of Control of the Customer occurs without EFEX's prior written consent;

(b)  the Customer fails to pay an undisputed invoice within 14 days of its due date and fails to make payment within 14 days of receipt of a notice from EFEX to make payment;

(c) on 7 days’ notice if the Customer commits a material breach of the Agreement that is not capable of remedy;

(d) immediately if the Customer commits a material breach of the Agreement that is capable of remedy but fails to remedy the breach within 30 days of receiving a notice to do so from EFEX;

(e) on 7 days’ notice if a Force Majeure Event prevents either Party from substantially performing its obligations under this Agreement for a period of more than 60 days;

(f) with such notice as is reasonable in the circumstances if a Supplier failure occurs, a Supplier materially alters its terms of supply, or any permit, consent, licence or lease required for the provision of the Service cannot be obtained or retained, and despite the best efforts of EFEX a substitute Service or Supplier cannot be obtained within 30 days;

(g) with such notice as is reasonable in the circumstances if a change in Law makes it illegal to continue providing the Service;

(h) with at least 3 months’ notice if it is commercially unviable to continue providing the Services, and the parties have been unable to agree (acting reasonably) on alternative pricing and/or terms that would make provision of the Service commercially viable

16.2 Termination by the Customer

The Customer may terminate a Service Contract, without liability to EFEX, by giving written notice to EFEX if:

(a) on 7 days’ notice if EFEX commits a material breach of the Agreement that is not capable of remedy;

(b) immediately if EFEX commits a material breach of the Agreement that is capable of remedy but fails to remedy the breach within 30 days of receiving a notice to do so from the Customer;

(c) on 7 days’ notice if a Force Majeure Event prevents either Party from substantially performing its obligations under this Agreement for a period of more than 60 days;

(d) by giving EFEX written notice prior to the RFS Date and paying EFEX all costs that it has incurred preparing for the Service including costs relating to equipment, infrastructure, installation and any costs that are payable to EFEX's Suppliers.

16.3 Consequences of termination

(a) Termination does not affect any accrued rights or remedies of either Party.

(b) If termination occurs pursuant to any of clauses 16.1(a) to 16.1(d), the Customer must pay EFEX on demand any applicable Fixed Term Charge, which the Parties agree is a reasonable and genuine pre-estimate of the loss that EFEX will suffer as a consequence of the early termination of the Agreement.

(c) If termination occurs pursuant to clauses 16.2(a) or 16.2(b), EFEX must pay the Customer on demand any Charges (or part thereof) which the Customer has paid in advance for Services which have not been provided or will not be provided by reason of such termination.

(d) Subject to their being no outstanding amounts, EFEX will return any Security Deposit.

16.3 Surviving rights after termination

(a) Termination or expiry of a Service Contract does not operate as a waiver of any breach by a Party or any of its provisions and is without prejudice to any rights, liabilities or obligations of any Party that have accrued up to the date of the termination or expiry, including a right of indemnity.

(b) Termination of a Service Contract for any reason will not affect the operation of the provisions of this Agreement or the Service Contract which by their nature survive termination.

17. Variations

17.1 Subject to clause 17.2, on 60 days’ notice to the Customer, EFEX may vary this Agreement including but not limited to varying a Service Schedule, Service Contract and/or price list if there is a change in a Law or a new Law is introduced or a Supplier varies, replaces or terminates its terms of supply to EFEX and as a result EFEX acting reasonably considers that it is necessary for it to vary the terms on which it supplies Services to the Customer.

    • If a variation made pursuant to clause 1 is materially detrimental to the Customer and the parties have (acting reasonably) been unable to agree on alternative pricing or terms, the Customer may within the 60 day notice period set out in clause 17.1 terminate the Service Contract without penalty or remaining Fixed Term Charge by giving 60 days’ notice to EFEX.

PART C: FINANCIAL TERMS

18. Charges and billing

18.1 Unless specified otherwise in a Service Schedule or Service Contract, EFEX will invoice the Customer monthly in advance for Services and may start to invoice the Customer from the RFS date whether or not the Customer has commenced to use the Service. The Customer must pay Charges for purchased Supplied Equipment or the installation of equipment in advance of the installation and/or supply.

18.2 The Customer agrees to pay to EFEX the Charges for each Service provided to the Customer and to pay invoices within 30 days of the date of the invoice.

18.3 Unless otherwise expressly stated, the Charges are exclusive of GST. If any supply made under this Agreement is subject to GST, the Customer must pay EFEX the Charge plus, at the same time, an amount equal to GST payable. Any taxes, levies or duties payable under or in connection with this Agreement are payable by the Customer.

18.4 EFEX may charge interest on due and unpaid amounts from the due date to the date of payment in full, such interest to be calculated on daily balances at the rate of 2% above the per annum business overdraft rate charged by the National Australia Bank on the last day of each applicable month. The right to charge interest is without prejudice to any other rights and remedies that EFEX may have in respect of a payment default under this Agreement.

18.5 If either Party discovers an error in an invoice, it must notify the other Party as soon as practicable (and in any event by no later than 6 months of the date of the invoice) and EFEX must endeavour to rectify any errors as soon as practicable or in its next invoice.

18.6 If a Fixed Term Service is terminated during the Initial Term, the Fixed Term Charge is due and payable within 30 days by the Customer to EFEX.

18.7 If an undisputed invoice or undisputed part of an invoice remains unpaid 14 days after its due date and the Customer fails to pay the outstanding amount upon EFEX asking it in writing to do so, EFEX may:

(a) suspend the provision of any Services and/or disconnect equipment used in relation to the Services after 7 days;

(b) invoice the Customer for any remaining Fixed Term Charges which become immediately due and payable;

(c) enter the Customer Premises to recover EFEX Equipment or Supplied Equipment in which title has not passed to the Customer;

(d) remove the Customer's authority to access any premises of EFEX or Suppliers including but not limiting data centres;

(e) require the Customer to pay a Security Deposit in order for the suspension to be lifted or supply of the Service to continue; and/or

(f) disclose the Customer's Personal Information to debt collectors.

18.8 EFEX may reconnect a suspended Service upon full payment of amounts due, applicable interest, a security deposit and any reasonable reconnection fee, and in such circumstances EFEX will take steps to cease and release the Customer from any debt collection activity initiated pursuant to clause 18.7(f) and any invoice issued pursuant to clause 18.7(b).

19. Credit assessment and Security Deposit

19.1 EFEX may conduct a credit assessment of the Customer at any time. The Customer authorises EFEX to make all enquiries necessary to determine the Customer’s creditworthiness and will provide EFEX with all reasonable information and assistance necessary for the credit assessment

19.2 If EFEX considers it necessary to manage EFEX’s risk or the Customer defaults on making payment pursuant to this Agreement, EFEX may require that the Customer pay a Security Deposit as a precondition to:

(a) accepting an initial Service Order or any further Service Orders; and/or
(b) continuing to provide a Service in circumstances where the Customer failed to pay any undisputed Charges for a Service by the Due Date,

19.3 If EFEX notifies the Customer that it is required to provide a Security Deposit, the Customer must do so within 5 Business Days and EFEX has no obligation to provide the Services referred to in the notice until it has received the Security Deposit.

19.4 EFEX may apply all or part of the Security Deposit (Deduction) at any time to any outstanding Charges that are not paid by the due date in accordance with this Agreement. The Customer must replenish the amount of any Deduction by paying that amount to EFEX, within 5 Business Days of a request to do so, and a failure to do so is a material breach.

20. Indemnity

20.1 Subject to clause 21, each Party (the Indemnifying Party) indemnifies the other Party (the Indemnified Party) against all Claims and Losses (including the cost of defending or settling any action, claim or demand) which may be instituted against the Indemnified Party, as well as all expenses, penalties, fines (including those imposed by any court, Regulatory Authority or governmental body or under any statute) and costs (on a solicitor and own client basis and whether incurred by or awarded against the Indemnified Party) that the Indemnified Party may sustain or incur as a result, whether directly or indirectly of:

(a) any breach of this Agreement, and/or breach of any applicable Law, by the Indemnifying Party or its Personnel; or

(b) the negligence of the Indemnifying Party, its Personnel.

20.2 No claim against Suppliers

(a) The Customer agrees that it must not contact Suppliers in regard to the Services or goods supplied under this Agreement and that it must not make any Claim against Suppliers or their suppliers that is related to Services or goods supplied under this Agreement.

(b) Customer indemnifies and continues to indemnify EFEX for any loss suffered by EFEX because of the Customer’s breach of clause 20.2(a).

20.3 Enforcing indemnities

(a) Each indemnity in this Agreement is a continuing obligation separate and independent from the other obligations and survives termination of this Agreement or settlement of account or the occurrence of anything.

(b) It is not necessary for the Indemnified Party to incur expense or make payment before enforcing a right of indemnity conferred by this Agreement.

21. Limitation of liability

21.1 To the extent lawfully permitted, except for the obligation to pay Charges due each Party's cumulative total liability during any calendar year in respect of all Claims in connection with this Agreement (whether based in negligence or any other tort, in contract, under statute or otherwise) will be the total sum of all Charges paid or payable by the Customer to EFEX under this Agreement in the 12 months prior to the event giving rise to the liability.

21.2 The liability of a Party under this Agreement will be reduced proportionately to the extent that any act or omission of the other Party or its Personnel directly contributed to the Loss or damage.

21.3 Each Party agrees to use reasonable endeavours to mitigate any Loss or damage suffered by it under or in connection with this Agreement.

21.4 To the extent lawfully permitted, unless expressly stated otherwise, neither Party is liable to the other Party for any Consequential Loss under or in connection with this Agreement (whether arising in negligence or any other tort, in contract, under statute or otherwise).

21.5 The limitations of liability in clauses 21.1 and 21.4 do not apply to:

(a) personal injury (including illness and disability) or death;

(b) infringement of a third party's Intellectual Property rights;

(c) an indemnity under clause 20.2(b); or

(d) breach of an applicable Consumer Guarantee.

21.6 Where a Claim arises because of or in connection with a failure to achieve a Service Level, the applicable rebate is a Party's sole and exclusive remedy.

21.7 Subject to clause 21.8, the liability of EFEX to the Customer for breach of an applicable Consumer Guarantee or other condition or warranty implied into this Agreement by legislation is limited, at the option of EFEX to:

(a) if the breach relates to goods, replacing, repairing or supplying goods equivalent to those goods or paying the cost of replacing or repairing them or acquiring equivalent goods; or

(b) if the breach relates to services, re-supplying, or paying the cost of re-supplying those services.

21.8 The limitations of liability in clause 21.7:

(a) apply if the Service and/or goods EFEX supplies to the Customer is not of a kind ordinarily acquired for personal, domestic or household use or consumption;

(b) apply if it is reasonable for EFEX to limit its liability, as contemplated by section 64A of the Australian Consumer Law; and

(c) do not apply to a breach of the Consumer Guarantees relating to clear title, undisclosed securities and undisturbed possession under sections 51 to 53 of the Australian Consumer Law.

22. Dispute resolution

22.1 Before commencing action or court proceedings, the Parties must attempt to settle any dispute that arises in relation to this Agreement by adhering to the escalation procedure set out in this clause 22.

22.2 A Party claiming that a dispute has arisen must notify the other Party in writing and the Parties' representatives will discuss and attempt to resolve the dispute within 10 Business Days. The notice of dispute must set out reasonable particulars of the dispute.

22.3 If the Parties' representatives cannot resolve the dispute within 10 Business Days, the dispute will be referred to the Managing Director of each Party who must attempt to resolve the dispute.

22.4 If the Managing Directors cannot resolve the dispute within 10 Business Days of the dispute being referred to them, either Party may commence any action or court proceedings in relation to the dispute.

22.5 Nothing in this clause prevents either Party from commencing any action or proceeding at any time for urgent interlocutory relief in any court or tribunal having jurisdiction over such action or proceeding.

22.6 The Parties will continue performing their respective obligations under the Agreement (including the payment of any undisputed portion of any disputed invoice) while attempts are being made to resolve the dispute, unless and until the Agreement expires or is terminated.

22.7 In the case of a disputed portion of an invoice, once the dispute is resolved, EFEX or the Customer, as the case may be, must pay the amount agreed within 14 days of resolution of the dispute.

22.8 Each Party shall bear its own costs of complying with this clause, except insofar as a court orders costs in favour of a Party.

23. Personal Property and Securities Act

23.1 The Customer agrees that it has no interest in any property or equipment owned by EFEX or a Supplier nor any right to retain or register an interest in any EFEX or Supplier property or equipment, including Supplied Equipment while title remains with EFEX or the Supplier.

23.2 The Customer agrees that EFEX or the Supplier may register its interest in property or equipment including Supplied Equipment in which it retains title. The Customer agrees that in relation to Supplied Equipment owned by EFEX or a Supplier that EFEX or a Supplier need not comply with any provision of the PPSA and Personal Property Securities Regulations 2010 (Cth) that may be contracted out of. If EFEX registers an interest in Supplied Equipment that is in the Customer’s possession, EFEX will give notice of the registration to the Customer, remove the registration within a reasonable time once it receives payment in full for the Supplied Equipment and provide the Customer with notice of the revocation of the registration.

23.3 The Customer must if required by EFEX or a Supplier, promptly and in any event within 45 days, execute any document that in the reasonable opinion of EFEX or the Supplier is necessary for EFEX or the Supplier to register its interests under the PPSA.

23.4 Unless with EFEX's prior written consent, the Customer must not part with possession of Supplied Equipment owned by EFEX of a Supplier or permit such Supplied Equipment to become a fixture or subject to any encumbrance, charge or loan.

24. Insurance

24.1 Each Party must have and maintain with reputable insurers public liability insurance with cover for at least $10 million per event and in annual aggregate.

24.2 Within 5 Business Days of a request, a Party must provide the other Party with certificates of currency to confirm it has the insurance required in clause 24.1 and any other insurance that EFEX requires the Customer to have under a Service Contract.

24.3 If a Party (the first Party) does not have or maintain the insurance required in clause 24.1 or fails to provide certificates of currency pursuant to clause 24.2, the other Party may take out the insurance required in clause 24.1 and the cost of such will be immediately payable to other Party by the first Party.

PART D: GENERAL TERMS

25. General Terms

25.1 Notices(a) Any notice given under this Agreement must be in writing and must be signed by the Party giving the notice or any authorised representative of that Party. Communications sent by email are taken to be signed by the named sender.

(b) Unless a later time is specified in a notice, the notice takes effect from the time it is received.

(c) A notice is taken to be received:

(i) if delivered by hand, when so delivered;

(ii) if sent by pre-paid post to and from an address within Australia, on the fifth clear Business Day after the date of posting;

(iii) if sent by pre-paid post to or from an address outside Australia, on the tenth clear Business Day after the date of posting;

(iv) if sent by email when the sender receives an automated message confirming delivery, or four hours after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that:

(A) the email has not been delivered; or
(B) that the recipient is “out of the office” or equivalent.

25.2 Governing law

This Agreement is governed by the Laws of New South Wales. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts hearing appeals from those courts.

25.3 Waiver and variation

A provision of or a right created under this Agreement may not be:

(a)  waived except in writing signed by the Party granting the waiver; or

(b)  varied except in writing signed by the Parties.

25.4 Relationship

The Parties agree that this Agreement does not create any relationship of partnership, employment, franchise, joint venture or agency and that EFEX is an independent contractor.

25.5 Consent

Subject to an express provision to the contrary, if EFEX is called upon to give consent to anything under this Agreement, it may give its consent conditionally, unconditionally or withhold its consent.

25.6 Assignment

(a) The Customer may not assign its rights or obligations under the Agreement without the prior consent EFEX.

(b) EFEX may subcontract all or any of its obligations under a Service Contract without the Customer's consent.

(c) EFEX may assign its rights and obligations under the Agreement as long as the assignment is not detrimental to the Customer.

25.7 Severance

(a) If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.

(b) This clause 25.7 has no effect if the severance alters the basic nature of this Agreement or is contrary to public policy.

25.8 Further assurance

Each Party at its own expense, must do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including but not limited to the execution of documents and making a reasonable effort to cause relevant third parties to do likewise.

25.9 Entire agreement

The Agreement contains the whole of the agreement between the Parties in relation to its subject matter.

25.10 Remedies cumulative

The rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by Law independently of this Agreement.

25.11 Acknowledgement

The Customer acknowledges that though it may have discussed the provision of services with EFEX, the Customer’s decision to enter into the Agreement is based upon its own investigations and it has not been induced to enter into this Agreement by any express or implied statement, representation, warranty or condition made by or on behalf of EFEX except to the extent set out in Agreement.

 

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