Customer Terms
Part A - Your Contract with Us
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1. About this document
The Customer Terms apply to all Services provided by us to you by agreement between us or, failing agreement, under section 479 of the Telecommunications Act.
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2. Your Customer Contract
(a) We supply Services to you under your Customer Contract. Your Customer Contract comprises, in order of precedence from highest to lowest:
(i) your Application Form;
(ii) the terms of your Plan;
(iii) these Customer Terms;
(iv) if you are a Reseller, Part B; and
(v) if you are a resident of the State of California, our CCPA Addendum.
(b) The parties to the Customer Contract are the Customer (you) and Hawkbird Pty Ltd (we, us).
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3. The Term of Your Contract
(a) The Customer Contract will continue until the end of the Minimum Term and thereafter on a month to month basis until it is terminated in accordance with this Customer Contract.
(b) If your Plan or Application Form does not specify a Minimum Term, states that there is no Minimum Term or is described as month-to-month, casual or no contract or similar, either party may terminate it on 30 days’ notice at any time without penalty.
(c) Your Customer Contract will commence upon our acceptance of your Application Form or when we commence providing the Services to you, whichever happens first.
Provision of Our Services
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4. The Services
(a) We will provide to you a non-exclusive, non-transferable, licence for the Services subject to the terms of your Customer Contract.
(b) We may provide the Services using such facilities and such Carrier as we choose from time to time.
(c) We may provide the Services using Our Facilities and/or third party Provider Facilities. Together, we call those Facilities our Network.
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5. Exclusive or Preferred Supplier
If your Application Form states:
(a) that we are to be your preferred supplier then you must not engage a third party to provide to you more than 10% of your total requirements for the Messaging Services or services substantially similar to the Messaging Services; or
(b) that we are to be your exclusive supplier then you must not engage a third party to provide to you any Messaging Services or services substantially similar to the Messaging Services.
Within 14 days of receipt of a written request, you will provide to us a statutory declaration, executed by a duly authorised officer, attesting to your compliance with clause 5.1(a) or clause 5.1(b).
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6. Monthly Access Fee and Message Credits
(a) If your Plan or Application Form states that you are required to pay a Monthly Access Fee you will be required to pay a monthly fee to access the Services.
(b) If your Monthly Access Fee includes Message Credits, any Message Credits which are not used within the month of purchase do not carry forward and cannot be exchanged or redeemed for cash or other credit. If you exceed your monthly Message Credits, extra Charges apply and a Service may be limited in some way.
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7. Prepaid Plans
For a Prepaid Plan:
(a) Prepayments are not redeemable for cash or other credit.
(b) Your Prepaid Plan may specify a Use-by Date i.e. a period after which any Prepaid Entitlements that are not used expire without refund. Unless a Plan or your Application Form specifies otherwise, a Use-By Date of one year from the date you last purchased credit under the Account applies to all Prepaid Entitlements under Prepaid Plans.
(c) When your Prepaid Entitlements are used up we may cease providing Service. We are not responsible for the consequences of Service ceasing.
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8. Automatic Top Ups for Prepaid Plans
(a) Unless you have elected otherwise (by unchecking the appropriate box in your Application Form indicating you do not wish to top up the balance of your Prepaid Entitlements automatically) the automatic top up feature will be enabled. You can disable the auto top up feature at any time by accessing the billing page in your Account.
(b) If the automatic top up feature is enabled then, if the value of the balance of your Prepaid Entitlements falls below the minimum balance (as set by you), the balance of your Prepaid Entitlements will be recharged with the same amount and using the same payment method as your initial purchase.
(c) The automatic top up feature will be disabled if your Prepaid Entitlements have expired.
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9. Compliance with Policies
(a) You must comply with any applicable Acceptable Use Policy we publish on our website or make available to you as well as all Laws applicable to your use of the Service.
(b) You must comply with any policy we publish on our website or make available to you.
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10. Operational Directions
(a) Acting reasonably, we may give Operational Directions about a Service. Operational Directions will be directed to the safety, security or reliability of Facilities, compliance with Laws or dealing with an emergency. We will only give an Operational Direction as and when reasonably necessary.
(b) You must comply with any applicable Operational Direction.
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11. Carrier or Carriage Service Provider
You represent and warrant that you are not a Carrier or a Carriage Service Provider.
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12. Provider Requirements – General
(a) Telecommunications Services, including many of our Services, are commonly provided by means of Provider Facilities, provided by third party Providers.
(b) A Provider may only permit us to provide Service to you subject to certain requirements (Provider Requirements).
(c) You must comply with any applicable Provider Requirements we notify.
(d) Where a Provider Requirement states that a Provider has a certain right or power:
(i) the Provider itself may exercise that right or power; or
(ii) we may exercise the right or power on behalf of the Provider.
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13. Use of Service by others
(a) Unless your Application Form states that we have appointed you as a Reseller, you must not share, resell or resupply a Service for remuneration or reward.
(b) The acts and omissions of your Staff and End Users with respect to a Service are deemed to be your acts and omissions.
(c) You must ensure that your Staff and End Users do not do (or omit to do) anything that would breach your Customer Contract if done (or not done) by you.
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14. Payment for third party services
Using a Service may depend on you having goods or services supplied by third parties. For instance, in order to use an email-to-SMS Service, you must have an internet connection. You are solely responsible for the costs of all third party goods and services you acquire.
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15. Using a Service
(a) When using a Service, you must comply with:
(i) your Customer Contract (including any applicable Acceptable Use Policy or other policy we provide to you in accordance with clause 9); and
(ii) any applicable Laws.
(b) You must not use a Service, and you must ensure that your End Users do not use a Service:
(i) to send Restricted Content;
(ii) for publishing, reproducing or advertising any message, information, symbol or other communication which is offensive or abusive or of an indecent, obscene or menacing character or for the purpose of causing annoyance, inconvenience or needless anxiety to any person (including our staff and personnel), or for any unlawful purpose;
(iii) to defame any person;
(iv) to breach the rights of any person;
(v) to infringe copyright;
(vi) to create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our Providers into disrepute;
(vii) to host or transmit Content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;
(viii) to send, allow to be sent, or assist in the sending of Spam, to use or distribute email harvesting software, or otherwise breach the Spam Act;
(ix) in a way that is misleading or deceptive, where that is contrary to Law;
(x) in a way that results, or is likely to result, in damage to property or injury to any person; or
(xi) in any way that damages or interferes with our Services to other customers, our Providers or any Facilities or exposes us to liability.
(c) You are solely responsible for all acts or omissions that occur under your Account including any password provided to you by us, and the Content of any Messages transmitted through the Service. You acknowledge and agree that any Messages sent using your Account are deemed to have been sent and/or authorised by you.
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16. Telephone numbers – General
(a) We must comply with the Numbering Plan, which sets out rules for issuing, transferring and changing telephone numbers.
(b) You must not knowingly and deliberately:
(i) do anything that causes us to breach the Numbering Plan or which makes it more difficult for us to comply with it; or
(ii) relocate, reassign or transfer the number for any Service except in accordance with our published procedures, or otherwise as the Law permits.
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17. Telephone numbers – Messaging Services
(a) Messaging Services are not a portable service within the meaning of the Numbering Plan.
(b) A number we use in association with your Account:
(i) is not a portable number; and
(ii) is not subject to number portability – within the meaning of the Numbering Plan.
(c) You are not a ‘customer’ for the purposes of the Communications Alliance code titled Mobile Number Portability C570:2009.
(d) Any Shared Number or Dedicated Number used in association with your Account has not been issued to you. You acknowledge that we retain ownership of any Dedicated Number used in association with your Account and you have no right to retain a particular number when your Contract ends.
(e) We retain all rights, obligations and liabilities under the Numbering Plan and other legislation relevant to such numbers.
(f) If your Application Form states that we will provide you with a Dedicated Number/s (inbound or outbound) we will provide you with use of those Dedicated Numbers in accordance with clauses 16 and 17.
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18. Voluntary number porting
(a) If, despite clause 17, we agree to transfer:
(i) a Shared Number or a Dedicated Number to you; or
(ii) a mobile service number from you for use in connection with an Account – then as far as the law allows, you release us and our third party supplier/s from all liability to you, and you indemnify us and them against all costs, expenses, liability, loss or damage incurred or suffered by us or them in conjunction with any claims, actions or proceedings against us or them (including third party claims or claims by you) arising out of the following:
(iii) our inability to transfer-in or transfer-out the number; or
(iv) the fact that the number is not, or ceases to be, available for use in connection with an Account.
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19. Maintenance and faults
(a) From time to time, the Network requires maintenance that may interfere with your Service. We will provide you with notice of any scheduled maintenance where reasonably possible.
(b) Reporting faults
(i) You may report faults in relation to a Service or the Network by contacting our help line during its operating hours.
(ii) Before reporting a fault, you must take all reasonable steps to ensure that the fault is not caused by Equipment, which is not part of the Network.
(iii) You must not report a fault directly to one of our Providers unless we ask you to do so.
(iv) If you report a fault that turns out to be a ‘false alarm’, or not to relate to the Network, we may make a reasonable charge for our effort and expenses in responding to your report.
(c) Repairing faults
(i) We will use reasonable efforts to repair faults in Our Facilities within a reasonable period.
(ii) We will use reasonable efforts to have our Providers repair faults in Provider Facilities within a reasonable period.
(iii) You are responsible for maintaining and repairing your own Equipment
(d) If you cause a fault or damage to the Network, we may charge you the reasonable cost of repairing it.
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20. Your cooperation
(a) You must give us all reasonable cooperation that we require in order to provide a Service to You, and fixing any problems that arise, and resolving any disputes that may arise or complaints that you may have.
(b) You acknowledge that, where a Service is a carriage service within the meaning of the Telecommunications Act, we or a Provider may be required to:
(i) intercept communications over the Service, and
(ii) monitor usage of the Service and communications over it.
(iii) retain and store data, including metadata, as required under Data Retention Laws.
Confidentiality, Intellectual Property and Privacy
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21. Confidentiality
(a) Each party (Recipient) undertakes that, in respect of Confidential Information disclosed or made available to the Recipient by the other party (Disclosing Party), it will not disclose Confidential Information except:
(i) for the purpose for which the Confidential Information was disclosed to the Recipient under the terms of the Customer Contract;
(ii) to those employees, officers and agents of the Recipient who need to know the information for the purposes of the Customer Contract, if that person undertakes to keep confidential the Confidential Information;
(iii) to professional advisers and consultants of the Recipient whose duties in relation to the Recipient require that the Confidential Information be disclosed to them;
(iv) with the prior written approval of the Disclosing Party;
(v) if so required pursuant to a regulation, law, subpoena or court order (collectively, “Compelled Disclosure”), provided the Recipient gives the Disclosing Party notice of a Compelled Disclosure (to the extent allowed by law). The Disclosing Party will cover the Recipient’s reasonable legal fees for preparation of witness deposition, testimony to the extent Compelled Disclosure is in connection with a lawsuit or legal proceeding to which Disclosing Party is a party or to the extent such fees are incurred in connection with reasonable assistance provided to Disclosing Party’s effort to contest such Compelled Disclosure; or
(v) as otherwise required by law to disclose such information.
(b) The parties acknowledge that monetary damages alone would not be adequate compensation for a breach of the obligations of confidentiality under this Customer Contract, and a Disclosing Party is entitled to seek an injunction from a Court of competent jurisdiction on a breach or threatened breach of this clause.
(c) Despite anything else contained in this Customer Contract and in particular in this clause 21, we retain the unconditional and irrevocable right to disclose your identity and address and those of any of your Staff or End Users in the event of any complaint, query or request received from any regulatory or Government body or Carrier, in connection with this Customer Contract.
(d) Nothing in this clause 21 prevents us from naming you as a customer and user of our Services in our marketing materials.
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22. Intellectual Property
(a) The parties agree that other than as provided in this clause 22, nothing in the Customer Contract transfers ownership in, or otherwise grants any rights in, any Intellectual Property Rights of a party.
(b) If a party provides any material to the other party that contains any Intellectual Property Rights which were developed by or on behalf of, or licensed to, the first party independently of the Customer Contract (Pre-Existing Material), then the first party grants to the other party a non-transferable, non-exclusive, royalty-free licence to use, during the term of the Customer Contract, the Pre-Existing Material solely for the purpose of using or supplying the Services under the Customer Contract or otherwise as required by Law.
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23. Privacy
(a) If a party is provided with, or has access to, Personal Information in connection with the Services, it must comply with the Privacy Act and any other applicable law in respect of that Personal Information, whether or not it is an organisation bound to comply with the provisions of the Privacy Act. Details of our Privacy Policy can be found on our website.
(b) You acknowledge and agree that where you authorise or require us to collect or otherwise deal with Personal Information in your name or on your behalf in connection with providing the Services, that we do so as your agent.
(c) You warrant and represent that:
(i) End Users to whom you send Messages have consented or otherwise opted-in to the receipt of such Messages and the collection of Personal Information as required by the Spam Act or any applicable Law or regulation; and
(ii) you have provided notice to End Users that we will have access to their Personal Information for the purposes of us providing the Services to you and that where our access to Personal Information on your behalf requires the consent of End Users, you have and will obtain this and provide us with evidence on request.
(d) You acknowledge and agree that except as may be required by the Customer Contract, we are not required to take steps to ensure that any Personal Information collected by you has been collected in accordance with the Privacy Act. Further, you indemnify us for any Claim by a third party that it has suffered Loss as a result of a breach of the Privacy Act.
(e) From time to time third parties may recommend our services to new customers. If a third party has referred you to our services we may pay that third party a commission. Any commission paid will not affect the Charges you pay to us. In order to calculate the commission we pay, we may also provide the third party with information about the number of messages you send in a certain period (we will not give them any other information about your Account, message content or other data) and you consent to us doing so.
(f) If the Services or the performance of our respective obligations under this Customer Contract involve any processing of any personal data (as defined in the GDPR) of, or sending Messages to, any individuals in the European Union, then we each agree that we shall comply with the additional terms set out in Parts D and E.
Credit Management
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24. Credit management (1): Guarantees and security
We may, at any time, make supply of Service conditional on you providing and/or maintaining security and/or third party guarantees to our reasonable satisfaction.
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25. Credit management (2): Credit checks
(a) At our discretion, we may obtain a credit report about you to help us decide whether to accept your application for service and to help us collect overdue amounts. In the course of a credit check, we may disclose Personal Information about you to a credit reporting agency or other credit information provider. We may receive a credit report and other information about you, including Personal Information. A credit reporting agency may include the fact that we obtained a credit report about you in its credit information file on you.
(b) We may disclose to a credit reporting agency: information in your application, details of your account, that you have applied for credit with us, that we are a current credit provider to you, payments that are more than 60 days overdue and are subject to collection processes, any cheque of yours for $100 or more which has been dishonoured more than once, any serious credit infringement you have committed or that payments are no longer overdue.
(c) We may disclose information about you and any debt you owe us to:
(i) a debt collection service we engage; and
(ii) anyone who takes, or is considering taking, an assignment of any debt you owe us.
(d) Your consents
(i) If you are an individual, you agree that we can conduct a credit check and verify your personal details, in accordance with this clause.
(ii) If you are self-employed, you agree that we can:
(A) obtain and use any report or information from a credit reporting agency, which contains information about your commercial activities or commercial credit worthiness;
(B) exchange with your other credit providers, any credit report or other report about your credit worthiness or history, or Personal Information contained in those reports – in accordance with this clause.
(e) You acknowledge that credit and other information about you may be used:
(i) to assess your application,
(ii) to assist you to avoid defaulting on your credit obligations,
(iii) to notify other credit providers of a default by you,
(iv) to assess your creditworthiness.
Prices, Billing and Payment Terms
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26. Charges & payment: Prices
(a) You agree to pay our Charges in accordance with the terms of your Contract.
(b) Our current prices as published on our website or otherwise notified to you at any time are referred to as our ‘Price List’.
(c) If the price for a service is not listed in our Price List, for example the price for international SMS, we may charge you a fee equal to the cost to us of providing that service plus a reasonable margin.
(d) You warrant that you will use the Messaging Services exclusively for the sending of Standard Rate Messages containing Unrestricted Content to End Users and, where the Service supports it, receiving Messages from End Users. We may make an extra Charge if you send any Messages that are not Standard Rate Messages, equal to the amount charged to us by the Carrier plus a reasonable margin.
(e) You must pay for every Message despatched using the Messaging Services irrespective of receipt by the intended recipient.
(f) On written request received within 30 days of the Message being despatched, we will provide evidence that the Message was delivered to the relevant Carrier or Provider.
(g) Any failure by a Carrier to deliver a Message to the intended recipient is beyond our control and you will not hold us liable in respect of any such failure.
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27. Calculation of number of SMS
Information point: The SMS system allows a maximum message size of 160 characters. If a user sends a longer message, the system splits it to two or more separate SMS’s that may be reassembled on delivery so that they appear to be a single message (or, on some handsets, may be delivered as a series of separate SMS). When a longer message is split in this way, the components are no more than 153 characters long, because seven characters are used to facilitate re-joining on delivery. As a result, a longer message will result in more than one SMS being transmitted, and charges apply accordingly, as described in this clause.
Charges for an SMS Service will be based on the number of SMS you send, calculated in accordance with the following rules:
(a) If you include any Unicode characters and send via a Unicode supported service, content that contains no more than 70 characters counts as one SMS. In all other cases, content that contains no more than 160 characters counts as one SMS.
(b) If you include any Unicode characters and send via a Unicode supported service, content that contains more than 70 characters counts as one SMS for each block of 67 characters or part thereof. In all other cases, content that contains more than 160 characters counts as one SMS for each block of 153 characters or part thereof.
(c) A ‘character’ includes each individual letter, digit, punctuation and other symbol in the Content.
(d) Each press of a ‘spacebar’ generates a separate character.
(e) Some special symbols and non-English letters may comprise more than one character and you will be charged accordingly.
(f) Where an SMS is sent to multiple End Users, each one is counted separately.
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28. Calculation of the size of an MMS
Charges for an MMS Service are based on the number of MMS you send. Each MMS is subject to a maximum total file size. It is not possible to send a MMS any larger than the maximum size available through our platform. Where an MMS is sent to multiple End Users, each one is counted separately.
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29. When we can bill
(a) Your ‘Billing Period’ is the period between bills. Unless your Application Form states otherwise, our standard Billing Period is monthly.
(b) We can bill a part-period eg to align your Billing Period with the first day of each month.
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30. Extra Charges for bills and information
(a) We may charge you an extra Charge if:
(i) you request non-standard information about your bill or Charges or you ask us to deliver a bill by a method that is not the standard method for a Plan; or
(ii) we provide billing and payment services for you (for example, accessing your purchasing platform and entering our invoices into your systems).
(b) If you request a paper bill when that is not the standard method for a Plan or request additional services such as those listed in (a)(ii) above, the extra Charge is $5 per bill, or as otherwise agreed between the parties.
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31. Late billing
(a) We may late bill.
(b) Some Charges in a Bill may relate to a previous Billing Period.
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32. When you must pay
(a) If any Bill is overdue for payment, you must pay that Bill and any other Bill immediately.
(b) You must pay a Bill within 14 days after the date of the Bill, unless your Application Form states otherwise.
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33. How you can Pay
(a) Unless otherwise agreed, payment for Services may be made by credit card, debit card, BPAY or EFT.
(b) In the event of a credit card chargeback for a transaction, an AUD $50 or equivalent admin fee will be recoverable from the Client. Hawkbird may charge interest on the amount of the transaction from the chargeback date until the payment is recovered. The rate of interest calculated is the rate charged by Hawkbird’s principal bankers on unsecured overdrafts of $100,000.00 or less compounded monthly
(b) Payments made using BPAY or EFT may be subject to a Monthly Non-Direct Debit Charge as per our current Price List. Unless the Price List specifies other amounts, non-Direct Debit payments attract a Monthly Non-Direct Debit Charge of $10 excluding Taxes.
(c) Non-Direct Debit payments paid by credit card will incur credit card processing surcharges (Amex may attract an extra 3% surcharge, Visa/Mastercard may attract an extra 1% surcharge).
(c) If any payment you make is dishonoured, we may charge you a reasonable payment dishonour fee and recover from you any fees charged by our bank which result from the dishonoured payment.
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34. Late payment
If a Bill is not paid on time:
(a) you are in breach of your Contract, and
(b) we may also charge a late payment fee of 2% per month of the unpaid amount from the due date until date of the payment in full or the maximum amount permissible by applicable law, whichever is less. The late payment fee may be charged each and every month once an account is overdue. Late payment fees will be applied to arrears balances greater than 15 days overdue.
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35. Billing disputes
(a) Our records of what you owe us are deemed to be right unless you show them to be wrong.
(b) If you dispute a bill, you must pay it on time and without set off. We shall credit you if it is later determined that you are entitled to a credit.
(c) You may not raise a billing dispute more than 60 days after payment for a particular Billing Period is due, and we will not pay a refund or give a credit in respect of a period prior to that.
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36. Taxes
(a) Amounts payable under the Contract are exclusive of Taxes.
(b) Unless otherwise stated in the Application Form, you shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Contract whether such Taxes are imposed directly upon you or upon us.
(c) If you are exempt from any such Taxes for any reason, we will exempt you from such Taxes on a going-forward basis once you deliver a duly executed and dated valid exemption certificate to our tax department and our tax department has approved such exemption certificate.
(d) If you are required by law to make any deduction or withholding on account of any Taxes from payments due to us under this Contract, you must increase the payment due so that, after deducting or withholding such Taxes, we receive an amount equal to the amount we would have received had no deduction or withholding been made.
Warranties and Indemnities
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37. ACL Guarantees
If we supply you with services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and the services cost no more than $40,000, ACL Guarantees always apply but our liability for failure to comply with an ACL Guarantee is limited to supplying the services again or paying the cost of having the services supplied again.
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38. Service Level Agreements
Subject to clause 37, if a Service or a Plan includes a Service Level Agreement (SLA):
(a) we are only liable for the remedy or rebate specified by the SLA (if any); and
(b) subject to the express terms of the SLA, our liability for breach of the SLA is limited to such remedy or rebate; and
(c) you agree we are not liable for any failure, for any reason, to supply the Services in accordance with the SLA.
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39. Exclusion of Implied Terms and Warranties
You agree and acknowledge that:
(a) any representation, warranty, condition, guarantee or undertaking that would be implied in your Contract by legislation, common law, equity, trade, custom or usage or otherwise is excluded from your Contract to the fullest extent permitted by law;
(b) we do not warrant or represent the performance, accuracy, reliability or continued availability of the Services or Facilities or that the Services or Facilities will operate free from faults, errors or interruptions.
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40. Your liability to us – General
(a) Subject to clause 43, you must indemnify us for any loss or damage we suffer arising from or in connection with:
(i) your breach of your Contract;
(ii) all Content sent or received on your Account;
(iii) any wilful or negligent act or omission by you, your employees, agents or contractors;
(iv) a Claim against us by your Staff, any End User or any third party arising out of or in relation to your use of the Services and/or Equipment;
(v) your use of the Service in a way that breaches any Law or infringes the rights of any third party; and
(vi) acts or omissions of End Users; except to the extent that we are negligent or caused or contributed to the loss or damage.
(b) Your obligations under this clause survive termination of your Contract.
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41. Your liability to us – requests for information or evidence
(a) This clause applies where we reasonably incur expense as a result of or in connection with:
(i) a police request for information or evidence in relation to you or your use of a Service; or
(ii) a Court or other competent authority’s direction for provision of information or evidence in relation to you or your use of a Service; or
(iii) a demand from a legal practitioner for information or evidence in relation to you or your use of a Service.
(b) If we incur any expenses under paragraph (a), you must reimburse them on request.
(c) Your obligations under this clause survive termination of your Contract.
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42. Our liability to you
(a) Subject to clause 43, we must indemnify you for any loss or damage you suffer arising from or in connection with:
(i) our breach of your Contract;
(ii) any wilful or negligent act or omission by us, our employees, agents or contractors;
(iii) a Claim against you by any End User in relation to a Service we supply to you arising out of our negligence in supplying the Services to you; and
(iv) our supply of the Services in a way that breaches any Law or infringes the rights of any third party; except to the extent that you are negligent or caused or contributed to the loss or damage.
(b) Our obligations under this clause survive termination of your Contract.
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43. Limitation on Liability
(a) To the maximum extent permitted by law, the parties agree:
(i) that the maximum cumulative liability of a party under or in connection with this Customer Contract (including pursuant to an indemnity) will be the total amount payable to us by you under this Customer Contract in the 12 months preceding the incident or event giving rise to the liability;
(ii) that neither party will be liable to the other party for any loss of profit or indirect loss or consequential loss suffered by the other party arising out of the Customer Contract, whether arising as a result of any act, omission or negligence of a party or otherwise.
(b) Nothing in this document limits or excludes the liability of a party for claims relating to:
(i) personal injury or death directly arising from that party’s negligent acts or omissions;
(ii) infringement of intellectual property rights; or
(iii) fees and Charges payable.
Termination and Suspension
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44. Termination by us
We may, by written notice to you, terminate your Contract:
(a) at any time (except during the period of the Minimum Term), on 30 days’ written notice to you;
(b) immediately if you are in material breach of your Contract (including but not limited to a failure to pay us on time, a breach of the Acceptable Use Policy) and you fail to remedy such breach within 14 days of being served notice to do so;
(c) immediately if you breach clause 5(a) (preferred supplier) or 5(b) (exclusive supplier) and you fail to remedy such breach within 14 days of being served notice to do so;
(d) immediately if you suffer an Insolvency Event (except for so long as an Insolvency Protection Stay applies);
(e) immediately if we become entitled to suspend the Service, and the suspension continues for more than a month (except for as long as an Insolvency Protection Stay applies);
(f) immediately if we reasonably suspect that you, your Staff or your End User has infringed or attempted to infringe our Intellectual Property Rights;
(g) immediately if you cause to be reversed any Direct Debit or credit card payment to us (except with our prior written agreement);
(h) immediately if it is necessary to do so in order to comply with a warrant or other court order, or as otherwise required or authorised by law;
(i) immediately if we reasonably suspect fraud or attempted fraud involving the Service;
(j) immediately if you are, or become, a carrier or carriage service provider under the Telecommunications Act;
(k) immediately if you breach clause 21 (Confidentiality); or
(l) in any other circumstances stated elsewhere in your Contract.
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45. Termination by you
You may terminate your Contract:
(a) at any time (except during the period of the Minimum Term) on 30 days’ written notice to us;
(b) immediately, by giving us written notice, if we are in material breach of your Contract and we fail to remedy that breach within 14 days of being served notice to do so;
(c) immediately, by giving us written notice, if we suffer an Insolvency Event;
(d) by giving us 14 days’ written notice, if an Intervening Event occurs and you are unable to use the Service for more than 30 days;
(e) by giving us 14 days’ written notice, if you reasonably suspect that we have infringed or attempted to infringe your Intellectual Property Rights; or
(f) in any other circumstances stated elsewhere in your Contract.
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46. Consequences of Termination
If your Contract ends:
(a) during the period of the Minimum Term then you will be required to immediately pay us the Early Termination Fee (other than if you terminate the Contract pursuant to clauses 45.1(b), 45.1(c), 45.1(d), 45.1(e) or 45.1(f)). You acknowledge and agree that any liability to pay us an Early Termination Fee does not prejudice any other right we may have to claim damages as a result of the termination.
(b) our obligations to you under your Contract are at an end;
(c) you must immediately cease use of any of our Services supplied under that Contract;
(d) we may bill you for any Services we have not yet invoiced and all other amounts we are entitled to under the Contract;
(e) all bills are payable immediately;
(f) you authorise us to recover any outstanding Charges and Early Termination Fees from any overpayment you have made, or Direct Debit them from your credit card or bank account if you normally pay by Direct Debit;
(g) it does not affect the accrued rights or liabilities of either party; and
(h) it does not affect the provisions which expressly or by implication are intended to operate after termination including, without limitation clauses 21, 22 and 23 and the limitations of liability and rights of indemnity.
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47. Suspension of Service
We may suspend Service at any time, without liability and immediately by reasonable notice to you (except in the case of an emergency), if:
(a) there are problems with the Network, or we or our Providers need to suspend the Services to conduct operational and maintenance work on the Network;
(b) you fail to pay any amount owing to us in respect of the Service under your Customer Contract (which is not the subject of a bona fide dispute) by the due date, and you fail to pay that amount within the period specified in any subsequent notice we send you;
(c) you breach your Customer Contract, including terms relating to your use of the Service or any Acceptable Use Policy including but not limited to a breach of the Spam Laws;
(d) there is an emergency;
(e) there is a threat or risk to the security of the Service or integrity of the Network;
(f) the Service may cause death, personal injury or damage to property;
(g) we are required to do so to comply with any Law or direction of any Regulator;
(h) an Intervening Event occurs; or
(i) we are otherwise entitled to do so under your Customer Contract.
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48. Charges during a period of suspension
If we suspend Service:
(a) because of your fault or breach of your Contract – you remain liable for all Charges payable under your Contract during the period of suspension;
(b) otherwise – you are entitled to a pro rata reduction in Charges in respect of the period of suspension.
48A Insolvency Protection Stays
(a) If you are a corporation and your Customer Contract commenced on or after 1 July 2018, our enforcement of certain rights may be stayed by the operation of sections 415D, 434J or 451E of the Corporations Act (Insolvency Protection Stay).
(b) If, and for so long as, an Insolvency Protection Stay operates, we do not assert an entitlement to enforce any right that is subject to it.
(c) This clause 48 does not prevent us from disputing that an Insolvency Protection Stay applies, or from making an application for an Insolvency Protection Stay to be lifted, in whole or in part, or otherwise exercising our legal rights.
General
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49. General power to vary your Contract
Subject to clause 50,
(a) we may vary your Contract from time to time. We will give you at least 14 days’ written notice if a variation is material; and
(b) any variations that have been deemed to be accepted pursuant to clause 50 will take effect 15 days after the date of any notice.
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50. Customer Right to terminate on Receipt of Notice of Variation
If you do not accept the variation set out in a notice from us pursuant to clause 49 you must notify us in writing within 14 days. If you fail to do so, you will be deemed to have accepted the variation. If you notify us that you do not agree to the variation, then we must discuss the proposed variation in good faith. If no agreement on the variation is achieved within 10 Business Days either party may terminate this Customer Contract by providing 30 days’ written notice to the other party and no Early Termination Fee will be payable.
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51. Acknowledgments
You acknowledge that:
(a) there has been no reliance by you on our skill or judgement or written or oral representations in deciding whether our Service is fit for a particular purpose or meets particular criteria;
(b) the internet is not an inherently secure system and you undertake responsibility for the protection of your information and data;
(c) the internet may contain viruses (including other destructive programs), which may, if not eliminated, destroy parts or all of the data contained within your system, and that we have no control over these viruses; and
(d) we do not provide any filtering or checking of data to eliminate these viruses, and you agree to provide you own mechanism for checking your system for viruses, and to indemnify us against any damage caused by viruses obtained through the Service.
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52. Assignment
(a) We may assign or novate all or part of our rights and obligations under your Contract without your consent.
(b) You cannot assign or novate all or part of your rights and obligations under your Contract unless we agree in writing.
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53. Governing law
Your Contract is governed by and must be construed in accordance with the laws of Victoria. You and we submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia.
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54. Entire agreement
Your Contract is the entire agreement between you and us regarding its subject matter, and you acknowledge that:
(a) your Contract does not include any term, condition, warranty, representation or guarantee that is not expressly set out in it, other than an ACL Guarantee to the extent it may not lawfully be excluded; and
(b) you have not relied on any representation that is not expressly set out in your Contract.
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55. Delays
(a) Time is not of the essence in the performance of our obligations, including the provision of Services, under your Contract.
(b) We are not liable to you for any delay in the provision of any Service.
(c) You may not cancel or amend an order for a Service on the grounds of any delay in providing it.
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56. No waiver
A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your Contract (such as a right that we have due to your breach of your Contract) does not operate as a waiver of the power or right.
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57. Commercial Electronic Messaging
(a) Subject to this clause, we may send you Commercial Electronic Messages regarding telecommunications goods and services, and ancillary goods and services, and you consent to us doing so.
(b) Your consent under clause 57(a):
(i) applies while your Contract is in force and for a year afterwards; and
(ii) is in addition to any other consent that you may give, or which may be inferred, for the purposes of section 16(2) of the Spam Act; but
(iii) terminates if you give us reasonable written notice that it is withdrawn.
(c) Any Commercial Electronic Message we send you does not have to comply with section 18(1) of the Spam Act.
(d) This clause 57 survives the termination of your Contract.
Part B – Reseller Terms
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66. About this Part
This Part B applies if your Application Form states that you are a Reseller.
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67. Reseller Rights
We grant you the non-exclusive right to market and resell the Services to your customers.
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68. Reseller Independence
Your business is an independent business. Accordingly:
(a) you are not, and must not (in any circumstances) hold yourself out as our agent, associate or affiliate;
(b) you must not represent that we are in any way the owner or operator of the business;
(c) your acts or omissions do not bind us;
(d) this Customer Contract does not constitute either you or us as a joint venturer, partner, agent, employee or fiduciary of the other.
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69. Provision of Services to Others
You:
(a) will enter in to separate legal agreements with your customers to whom you resell the Services which contain terms and conditions substantially similar to the Customer Terms (but you must not appoint any sub-seller or partner);
(b) expressly acknowledge that we will not, at any time, be responsible for or liable for the Content or the destination of any Content conveyed by or to you;
(c) agree that, if you become aware that any End User does not wish to continue to receive Messages, you will take all necessary steps, including notifying us, to ensure that the End User does not continue to receive Messages;
(d) must ensure that your customers do not do anything that, if done by you, would breach your Contract;
(e) indemnify us against any claim against us by your customer or a Regulator arising out of or in connection with your business or the Services you resell.
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70. 90 Day Notice of Termination
If you are a Reseller, then the reference to “30 days” in clause 45.1(a) is deleted and replaced with “90 days”. For the avoidance of doubt this means that you may terminate your Customer Contract at any time (except during the period of the Minimum Term) on 90 days’ written notice to us.
Part C – D - Privacy
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71. About this Part
This Part D applies if the Services or the performance of our respective obligations under this Customer Contract involve the processing of any personal data (as defined in the GDPR) of, or sending Messages to, any individuals in the European Union.
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72. Privacy and Electronic Communications and E-Commerce
(a) You warrant and undertake at all times to comply (and to ensure that your Staff and End Users also comply) with your obligations under the Privacy and Electronic Communications Regulations (EC Directive) 2003 and the Electronic Commerce (EC Directive) Regulations 2002, in particular, you:
(i) warrant and represent that End Users to whom you send Messages have consented or otherwise opted-in to the receipt of such Messages as required by any applicable Law or regulation.
(ii) agree that you will include clear opt-out/unsubscribe information on your Messages when required to do so by any applicable Law or regulation; and
(iii) will adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages
(b) You indemnify us for any Claim which results from your breach of paragraph (a) above.
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73. Data Protection
(a) The terms ‘data subject’, ‘personal data’, ‘process’, and ‘supervisory authority’ have the meanings given to them in the GDPR.
(b) If a party is provided with, or has access to personal data in connection with the Services, it must comply with the GDPR and any other applicable law in respect of that personal data.
(c) The subject matter of the processing by us shall be the performance of this Customer Contract. The nature and purpose of the processing shall be the provision of the Services. The duration of the processing shall be the duration of this Customer Contract.
(d) We shall:
(i) only process personal data on your behalf in accordance with, your instructions and for the purposes set out in this Customer Contract;
(ii) implement appropriate technical and organisational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
(iii) ensure that any of our personnel engaged in the processing are subject to a duty of confidentiality.
(iv) co-operate with you if you are required to deal or comply with any assessment, enquiry, notice or investigation by the Information Commissioner, to assist you in complying with such assessment, enquiry, notice or investigation.
(v) notify you if we receive a request from a data subject for access to personal data, and shall provide you with reasonable co-operation and assistance in relation to any such request.
(vi) inform you without undue delay if at any time any personal data is or is suspected to be, lost, corrupted, used or disclosed to a third party except in accordance with this Customer Contract and provide reasonable assistance to you in relation to your obligation to notify data subjects or a supervisory authority.
(e) You acknowledge that in providing the Services, personal data may be transferred outside the European Economic Area under the Customer Contract and each party undertakes to comply with its obligations under the Model Clauses.
(f) You hereby consent to the sub-processing of personal data by a Provider. We shall only appoint additional sub-processors where we have your prior consent to do so and where we have written terms in place with the sub-processor that reflect these terms.
(g) You warrant that you have provided a fair processing notice to End Users that notifies them of our processing activities and that where our processing of personal data on your behalf requires the consent of End Users, you have and will obtain this and provide us with evidence on request.
(h) On termination of this Customer Contract, we shall delete all personal data that you have provided to us, unless we are required by law to retain it (in which case, we will not actively process it after the termination date).
(i) You may, not more than once in any 12-month period and on giving at least 30 days’ written notice, conduct an audit of our processing of personal data under this Client Contract. We shall mutually agree on the scope, timing and duration of the audit. The audit shall exclude any personnel records and any data, systems and facilities which are subject to confidentiality obligations to third parties. You shall not be entitled to take copies of any information.
(j) You indemnify us for any Claim by your Staff, End Users or any other third party that it has suffered Loss as a result of your breach of paragraphs (b), (e) or (g) above.