Definitions

1.1        “Agreement” means this document and any other document(s) attached to, or subsequently incorporated into any of these documents or as displayed on Fonika Pty Ltd’s website https://www.fonika.com.au/.

1.2         “End User” means any person who acquires the Services (or part thereof) from the Customer and uses those Services (with or without the Customer’s authorisation).

1.3         “Event of Default” occurs where the Customer and/or End User:

(a) fails to pay any sum payable under this Agreement by the due date for payment;

(b) breaches any provision of this Agreement and the breach is not capable of remedy;

(c) breaches any provision of this Agreement which is capable of remedy and fails to remedy the breach within 7 days of the date of notice from Fonika demanding that the breach be remedied;

(d) takes steps (including without limitation, an application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for:

  • (i)the winding up, dissolution, or administration; or
  • (ii) entering into any arrangement, compromise or composition with or assignment for the benefit of creditors or any class of them,
  • (iii)except for the purposes of a solvent reconstruction or amalgamation;
  • (iv) a receiver, receiver and manager, or other controller, administrator or similar officer is appointed with respect to, or takes control of, the Customer or any of the Customer’s assets and undertakings;

(e) in Fonika’s reasonable opinion there has been a material adverse change in the Customer’s financial position since the Commencement Date including, without limitation, as a result of a change in the value, nature or saleability of the Customer’s assets; or

(f)  The Customer have a change in control.

1.4         “Fonika” shall mean Fonika Pty Ltd (ABN 98 128 959 571), its successors and assigns or any person acting on behalf of and with the authority of Fonika Pty Ltd.

1.5         “Commencement Date” means the date of this Agreement.

1.6         “Confidential Information” of a party includes all information of a party marked as confidential or which the other party knows or ought reasonably to be aware is confidential (regardless of its form and whether the other party becomes aware of it before, on or after the date of this Agreement) but excludes information that is publicly known other than as a result of a breach of the obligations of confidentiality under this Agreement.

1.7         “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any invoice, quotation, tariff sheet or other form as provided by Fonika to the Customer and on any Application Form.

1.8         “Application Form” shall mean any application form completed and signed by the Customer and submitted to Fonika online or completed by Fonika on behalf of the Customer over the telephone.

1.9         “Services” shall mean all services supplied by Fonika to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined hereinafter) that are described on any invoice, quotation, tariff sheet or any other forms including as displayed on it’s website https://www.fonika.com.au/or as provided by Fonika to the Customer and on any Application Form and as outlined in Schedule 1 to this Agreement.

1.10      “Goods” shall mean goods and equipment owed or supplied by Fonika to the Customer (and where context so permits shall include any supply of Services as defined above) that are described on any invoice, quotation, tariff sheet or any other forms as provided by Fonika to the Customer and on any Application Form and as outlined in Schedule 1 to this Agreement.

1.11      “Interest Rate” means, at a particular date, 3% above the cash rate as published by the Reserve Bank of Australia on the first day of the month in which that particular date falls.

1.12       “Intellectual Property Rights” means all forms of intellectual property rights which may subsist anywhere in the world, whether protected at common law or under statute, including, without limitation, patents, petty patents and utility marks, rights in designs, trademarks, signs and service marks, trade and business names, copyrights (including rights in computer software), database rights, semiconductor topography rights and rights in circuit layout designs, whether or not registered and including applications for registration of any such thing.

1.13      “Charges” shall mean the charge(s) payable for the Services as agreed between Fonika and the Customer in accordance with this Agreement or as varied from time to time in accordance with this Agreement.

End User

2.1         The Customer must enter into all contracts with the End Users on the Customer’s own account and the Customer will be responsible for all billing, collection and customer support under those End User contracts.

2.2         The Customer must ensure that the End User contracts make no reference to Fonika nor shall Fonika bear any interest or other dealing in connection with the Goods;

2.3         The Customer will not do anything or authorise anything to be done which might affect Fonika’s ownership of the Goods;

2.4         The Customer will not, without Fonika’s prior written consent, remove or obscure any identification marks on the Goods;

2.5         The Customer will comply with all reasonable directions of Fonika and the Customer will protect Fonika’s ownership of the Goods;

2.6         The Customer will only use the Goods at the location stipulated by Fonika and will not part with possession of the Goods except to provide it to Fonika;

2.7         The Customer will allow Fonika to and, where applicable, will ensure that any relevant third party allows, including the registered proprietor of the premises where the Goods are held will allow Fonika to, enter and remove the Goods from the premises upon expiry or termination of this Agreement; and

2.8         The Customer will return the Goods to Fonika’s possession as soon as practicable in accordance with any request to do so by Fonika where the Goods are no longer used by the Customer or this Agreement has expired or is terminated.

Acceptance

3.1         Any oral or written instructions received by Fonika from the Customer for the supply of Services and/or the Customer’s acceptance and/or use of the Services supplied by Fonika shall constitute acceptance of the terms and conditions contained herein.

3.2         Where more than one Customer has entered into this Agreement, the Customer shall be jointly and severally liable for all payments of the Charge and all and any monies outstanding to Fonika.

3.3         Upon acceptance of these terms and conditions by the Customer, the terms and conditions are binding and can only be amended by written consent of Fonika.

3.4         The Customer shall give Fonika not less than seven (7) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s address, facsimile number, contact details or banking details). The Customer shall be liable for and forever indemnify Fonika for any direct, special, indirect or consequential loss howsoever caused (including by the negligence of Fonika) incurred by Fonika as a result of the Customer’s failure to comply with this clause.

3.5         Services are supplied by Fonika only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

3.6         None of Fonika’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manufacturer of the Goods in writing nor is Fonika bound by any such unauthorised statements.

Services

4.1         Description of Services

(a) The Customer agrees to acquire from Fonika and Fonika agrees to provide the Customer with the Services on the terms and conditions in this Agreement. The Customer must ensure that any third parties using the Services do so in accordance with the terms and conditions in this Agreement.

(b) Fonika will use its reasonable endeavours to provide the Services in accordance with the Application Form subject to the matters set out in the special conditions and the tariff sheet as contained and identified in the Application Form.

(c) Fonika may from time to time amend its description of the Services to meet operational or network functionality needs. Fonika will use its reasonable endeavours however does not guarantee that such changes will not adversely impact the Customer’s use of the Services.

(d) The Customer agrees that Fonika may without prior notice or consent modify or replace any of its Services as it deems fit.

(e) The Customer acknowledges that from time to time necessary interruptions to the Services may occur due to maintenance or network upgrade and Fonika is not responsible in any way for any such interruptions to the Services.

(f)  The Customer acknowledges that Fonika is not a carrier under the Telecommunications Act 1997(Cth) however has engaged other carriers for the provision of network over which Fonikahas no control. Fonika does not guarantee the quality and reliability of the Services as a result of the use of the network.

(g) The Customer agrees that Fonika may at any time route the Customer’s calls through a carrier who does not support caller line identification presentation due to network maintenance, server outage or any other reasons which is beyond Fonika’s control.

4.2         Term

(a) Fonika provides the following service plans for the Services:

  • (i) Casual Terms – there is no minimum term before the Customer can terminate the Agreement however the Customer must give Fonika 30 days written notice of its intention to terminate; and
  • (ii) Minimum Terms – there is a minimum term during which the Customer will receive a discounted rate as specified in the Application Form however the Customer must use a telephone system or telecommunication equipment provided by Fonika (which is pre-programmed) and can only terminate the Agreement with Fonika after the minimum term expires.
  • (iii) If the Customer terminates its Agreement with Fonika during the Minimum Term, the Customer must pay Fonika the total fees of the Agreement the Customer would have been required to pay should early termination did not occur. The Customer must also pay Fonika termination payment equal to the total value of discount the Customer has received from the Agreement if the Customer has subscribed to a discount on the purchase of equipment from Fonika. The Customer agrees that this is a genuine pre-estimate of damages and is not a penalty provision.

4.3         Emergency Services 000 Dialling

(a) The Customer acknowledges that dialling 000 emergency services do not function correctly if the Customer and or End User moves or otherwise changes the physical location of the Services.

(b) The Customer and End User acknowledge that the Services always requires a functional internet connection. In the event of a power failure or disruption to the Customer’s or End User internet connection, or upon termination of the Services by Fonika, the Customer or End User will not be able to use the Services to contact emergency services. Fonika recommends that the Customer obtains an alternative service to make any such contacts such as a mobile telephone.

4.4         Facilities

(a) The Customer agrees to acquire from Fonika and Fonika agrees to provide the Customer with any hardware necessary for the use of the Services in accordance with the terms and conditions in the Application Form.

(b) The Customer acknowledges that the cost of the hardware may vary if Fonika’s suppliers increase their charges.

4.5         Use of Services

(a) The Customer must notify Fonika immediately of any theft, unauthorised or fraudulent use of the Services. When notifying Fonika, the Customer must provide its account number and a detailed description of the circumstances of the theft, unauthorised or fraudulent use of the Services. The Customer acknowledges that its failure to notify Fonika of any theft, unauthorised or fraudulent use of the Services may result in immediate termination of the Services and additional Charges to the Customer. The Customer will be liable for any and all costs and Charges so incurred if the Services are used in a way in breach of the terms and conditions of this Agreement.

4.6         Customer’s Obligations

(a) The Customer must be over the age of 18 years and hold a current Australian Business Number throughout the term of this Agreement.

(b) The Customer must maintain the secrecy and confidentiality of all identification, passwords and log-in details required to access the Services.

(c) The Customer must at all times comply with all laws and obligations, regulations, codes or determinations or any other requirements of any government or statutory authority, including licence conditions, applicable to the Services and their use.

(d) The Customer must take all reasonable steps to ensure it and any other person using the Services must only do so in accordance with the terms and conditions of this Agreement.

(e) The Customer acknowledges and agrees to use the Services for only legitimate purposes and not to contravene or breach of any rule, regulation, government, statutory or law to which the Service applies and agrees to indemnify and keep indemnified Fonika from all claims, injuries, costs and expenses as a result of the Customer’s breach of this clause.

(f)  The Customer acknowledges and agrees to take all reasonable steps to document and address end user service complaints and difficulties, and where required liaise with Fonika on their resolution.

(g) The Customer must ensure adequate network connectivity and performance at the end users primary location of business so as to ensure a stable and reliable access to Fonika Services.

(h) The Customer acknowledges and agrees it will not use the Services unreasonably which is considered by Fonika to be excessive, fraudulent or adversely affecting Fonika’s network or another Customer’s use or access to the Service or network.

(i)   The Customer must inform Fonika immediately about any change to the Customer’s address or contact details.

Charges and Payments

5.1         Fees for the Services

(a) The Customer agrees to pay Fonika without any set-off or deduction on or before the due date the following Charge as indicated on any invoice(s) provided by Fonika to the Customer in respect of Services supplied:

  • (i) A monthly fee for the provision of the Services;
  • (ii) Charges for calls made by the Customerwhich will be calculated by reference to data recorded or logged by Fonika;
  • (iii) A Interest Rate will be charged on any outstanding balance which is not paid in cleared funds to Fonika by the due date of any invoice;
  • (iv) Payments by credit card may only be made with Fonika’s prior written approval and will incur an additional processing fee equal to any fee Fonika’s incurs for processing the Customer’s credit card payment;
  • (v) Miscellaneous Charges including connection, reconnection, disconnection charges (if applicable) but not any other government taxes, which the Customer or End User may be required to pay as set out in Schedule 2 to this Agreement.

(b) The Customer agrees that any records held and call-logging procedures adopted by Fonika will be conclusive evidence of the usage of the Service.

(c) The Customer agrees to pay Fonika a fee of $10.00 (including GST), or 5% of the outstanding balance (whichever is greater) if the Customer fails to pay the whole or any part of the Charge by the due date plus a reconnection fee as determined by Fonika for resuming the Services after they have been suspended or terminated as a result of the Customer’s breach of this Agreement.

(d) The Customer agrees to pay Fonika an administration fee as set out in Schedule 2 of this Agreement for each dishonoured cheque or direct debit drawing.

5.2         Payments

(a) Fonika will provide the Customer with an electronic copy of the invoice on a monthly basis on the invoice issue date. The invoice will be sent to the Customer’s nominated email address as shown on the Application Form and will be deemed to be received by the Customer on the date the email was sent by Fonika. The Customer may also access the invoice and previous invoices issued by Fonika by logging into Fonika’s website with the username provided to it by Fonika. The Customer must notify Fonika immediately if the Customer does not receive or is unable to access the website to obtain a copy of an invoice.

(b) The Customer agrees to ensure the nominated email address provided by Fonika is maintained and checked by the Customer during the term of the Agreement. The Customer agrees to immediately inform Fonika in writing of a change of its email address. Fonika takes no responsibility for ensuring the Customer receives its invoice at the nominated email address.

(c) The monthly fees are charged one month in advance and any call charges are charged in arrears depending on the usage by the Customer.

(d) Fonika reserves the right to carry forward any usage by the Customer to a maximum of 190 days from the date the usage incurred by the Customer.

(e) If the Customer requests an archived or hard copy invoice the Customer shall pay Fonika an administration fee as set out in Schedule 2 of this Agreement for each invoice to cover Fonika’s costs for recovery of the material.

(f)  At Fonika’s sole discretion a deposit may be required.

(g) GST and other taxes and duties that may be applicable shall be added to the Charge except when they are expressly included in the Charge.

(h) If the Customer fails to pay Fonika by the due date it will forfeit the benefit of any relevant reward program or discount that the Customer would otherwise have been entitled to in respect of that month.

(i)   The Customer acknowledges that Fonika may pay commissions to its channel partners, buying groups or other introducers of business.

(j)   The Customer agrees that in the event it disputes any item on the invoice it must first pay the whole of the bill including the disputed balance within the time specified on the invoice. Fonika agrees to refund to the Customer any amounts overcharged after the dispute is resolved.

5.3         Reward Programs

(a)  Fonika may offer the Customer with reward programs and the Customer may choose one of the reward programs as shown in the Tariffs Sheetfor the Services with Fonika’s prior approval.

(b)  The Customer may change the type of rewardprograms for the Services by giving Fonika at least 14 days prior notice. The new reward program will take effect no earlier than the commencement of the Customer’s next billing period.

(c)  Under the reward program, the Customer may be entitled to a credit for the eligible Charges in each billing period at the rate shown on the Tariff Sheet and/or Application Form for the Services to spend at Fonika’s authorised redemption partners in the Customer’s next billing period.

(d)  If the Customer has been issued with a debit card to draw upon credits earned, the card will be issued subject to the terms and conditions imposed by the card issuer, a copy of which will be provided to the Customer upon request for entry into the program. The Customer acknowledges that it will contact the card issuer directly in relation to any dispute arising out of the credits and debit card and Fonika is not liable.

5.4         Credit Assessment

(a) At Fonika’s discretion it may undertake a credit assessment of the Customer to determine whether to provide the Customer’s with the Services. A credit assessment may include but is not limited to :

  • (i)The Customer’s employment status;
  • (ii)The Customer’s business or trading history;
  • (iii)The Customer’s residential history; and
  • (iv) A credit check from a credit reporting agency.

(b) The Customer agrees that Fonika may obtain from the credit reporting agency information containing the Customer’s personal credit and commercial credit and exchange personal information about the Customer from other credit providers whose names may be named in a credit report and for the purpose of collecting overdue payments relating to commercial credit owed by the Customer and continued maintenance of the Customer’s account with Fonika.

(c) Fonika will determine a monthly credit limit based on the credit assessment for the Customer and may extend the credit limit of the Customer for use of the Services.

(d) In the event Fonika makes a decision not to provide the Customer with the Services based on or partially on the information provided by a credit reporting agency, the Customer has the right to seek details of:

  • (i)The reason for Fonika’s decision;
  • (ii)Information of the credit reporting agency; and
  • (iii)The Customer’s right to obtain access to its credit file from the credit reporting agency.

5.5         Payment Obligations

(a) The Customer agrees that it is the sole responsibility of the Customer to pay for all Charges incurred in using the Services as stipulated on the invoice irrespective of whether the Customer, the End User or another entity (with or without Fonika’s prior consent) used the Services and without set-off, counterclaim or deduction.

(b) The Customer must provide with Fonika with its credit card details or alternate payment details (as agreed to at the sole discretion by Fonika) and notify Fonika immediately of any changes to these details.

(c) The Customer must take steps to verify that there are sufficient funds on the Customer’s or End User’s credit card or bank account to meet make payments on time.

(d) The Customer acknowledges that some Charges made during the period covered by an invoice may be not included in that invoice due to processing and verification procedures. Fonika may include those Charges in any subsequent invoices for a period up to 180 days after the Customer or End User has used the Services.

(e)  If the Customer or End User fail to pay Fonika the Charges (and any other payable amounts) as stipulated on any invoice, notice or demand, the Customer will pay interest on the outstanding amount, which shall accrue daily from the due date for payment until the date payment in full is received by Fonika.  The Customer will be liable to pay Fonika all expenses (including legal costs and expenses and the fees of Fonika’s debt recovery agents) incurred by Fonika in relation to recovering payments due under this Agreement.

(f)  The Customer must pay Fonika all reasonable expenses and costs incurred in enforcing any failure or delay in payment of its invoice.

(g) The Customer must pay all charges to its former carrier up to the time when the Services are provided by Fonika and indemnify and keep indemnified Fonika against any claims or losses arising from the transfer of its previous service provider.

Goods

6.1         The Customer and/or the will ensure that it must use the Goods in accordance with any directions of Fonika as notified from time to time.

6.2         The Customer will ensure that the Goods are not damaged and remains in good condition.

6.3         The Customer must notify Fonika promptly on becoming aware of any damage to or malfunction of the Goods or that the Goods requires maintenance of any kind.

6.4         Fonika may, subject to giving reasonable notice and at Fonika’s cost, change, modify, replace or remove the Goods in its absolute discretion.

6.5         The Customer bear the risk of loss or damage to the Goods from the date of delivery of such equipment to the End User’s premises or when the Customer or End User picks it up and the Customer indemnify Fonika in respect of any such loss or damage.

6.6         Fonika may charge the Customer, in accordance with its standard time and material rates and terms, for any repair, maintenance or replacement of the Goods which is required due to events other than normal wear and tear.

6.7         The Customer will ensure that the Goods, and any other equipment, facilities and connections which the End User uses in connection with receiving the Service(s), is not altered, maintained, repaired or connected to, or disconnected from, any power source or line except by Fonika or our authorised contractors unless Fonika otherwise permit in writing.

6.8         The Customer agrees that when dealing with End User, it must not attribute blame for fault or other problems with the Services to Fonika unless not doing so would require the Customer to engage in unethical, misleading or deceptive conduct; and

6.9         The Customer must provide, and ensure the End User or any other relevant persons provide, Fonika and/or our suppliers with full, free and safe access to the relevant premises if required for Fonika and/or our suppliers to repair or restore the Services in order for Fonika to exercise its rights under this Agreement.

6.10       If Fonika has provided any Goods to the Customer then the Goods always remains the property of Fonika or the supplier (as the case may be);

6.11       The Customer will not enter into any agreement for the transfer, sale, mortgage, granting of any security interest or other dealing in connection with the Goods;

6.12       The Customer will not do anything or authorise anything to be done which might affect Fonika’s ownership of the Goods;

6.13       The Customer agrees to comply with all reasonable instructions of Fonika to protect Fonika’s ownership of the Goods;

Suspension and Termination of Services

7.1         Immediate suspension, limitation and termination

(a) The Customer agrees that Fonika will suspend the Services without prior notice or warning at its sole discretion if:

  • (i) Fonika regards it necessary for operational purposes including geographical coverage, capacity or technical capability limitations;
  • (ii) The Customer exceeds its approved credit limit;
  • (iii) Fonika believes that the use of the Services (or any feature of it) by the Customer, End User any other person is detrimental to Fonika’s network and equipment;
  • (iv) There is an emergency which requires suspension of the Services;
  • (v) Fonika has reasonable grounds for suspecting fraud or illegal conduct in relation to the Services;
  • (vi) Fonika has reasonable grounds of suspecting the Customer is using the Services unreasonably which is considered by Fonika to be excessive, fraudulent or adversely affecting Fonika’s network or another Customer’s use or access to the Service or network;
  • (vii) Fonika becomes aware that the Customer is a carriage service provider or carrier, or is providing a carriage service; or
  • (viii) Fonika is required to do so as required by a regulatory authority such as the Australian Communications and Media Authority, or the law, or a law enforcement agency.

(b) The Customer agrees that Fonika will terminate the Services if:

  • (i)Fonika has given 30 days prior notice in writing to the Customer subject to Fonika refunding any unexpired pre-paid credit to the Customer;
  • (ii) The Customer is in a material breach of the Agreement;
  • (iii) The Customer fails to pay Fonika in full the amount on the invoice by the due date;
  • (iv) Fonika is required to do so to comply with any legislation or regulatory requirements or by the order of a competent court or agency.

(c) The Customer will be barred from using the Services upon suspension of the Services by Fonika. The Customer may be required to continue to make monthly payment to Fonika in accordance with this Agreement.

7.2         Termination by Customer

(a)  The Customer may terminate its Agreement with Fonika within 60 days upon receipt of a notice of increase of Charges from Fonika subject to full payment of all outstanding Charges and costs incurred prior to the termination date.

(b)  The Customer may terminate this Agreement with Casual Terms at any time by giving 30 days prior written notice to Fonika expiring at the end of a billing period.

7.3         Consequences of Termination

(a)  If this Agreement is terminated by either Fonika or the Customer, the Customer must pay Fonika all Charges and costs incurred prior to the termination date.

(b)  Upon termination, Fonika will disconnect the Services.

(c)  If the Customer has purchased Goods at a discounted rate from Fonika, the Customer may be liable to pay Fonika the full retail Charge of the hardware upon termination.

(d)  Any balance accrued which has been withdrawn by the Customer under a reward program will be cancelled upon termination of the Agreement.

(e)  The Customer acknowledges that Fonika will not pay the Customer an amount it owes the Customer if:

  • (i)Fonika after due enquiry is unable to locate and/or contact the Customer; or
  • (ii)The Customer’s nominated bank account is no longer valid.

Confidential Information

8.1         Privacy

(a) The Customer acknowledges that Fonika may give information about the Customer or End User to a credit reporting agency to:

  • (i)obtain a credit report about the Customer or End User; and
  • (ii) allow the credit reporting agency to keep a file containing information about the Customer or End User.

(b) The Customer agrees that Fonika may obtain information about the Customer or End User from:

  • (i) A business which provides information about commercial credit of the Customer or End User; and
  • (ii) A credit reporting agency for the purpose of credit assessment of the Customer or End User.

(c) The Customer agrees that Fonika subject to its obligations under the Privacy Act 1988(Cth) and the Telecommunications Act 1997(Cth) may exchange any information provided by the Customer or obtained by Fonika, including personal information with a credit provider’s names in the Customer’s credit application form or names in a consumer credit report issued by a credit reporting agency for the following purposes:

  • (i)To obtain a credit assessment of the Customer;
  • (ii)To notify other credit providers of a default of the Customer;
  • (iii)To exchange information with other credit providers; and
  • (iv)To assess the Customer’s creditability.

8.2         Collection of Confidential Information

(a) The Customer’s personal information is collected by Fonika for the primary purpose of providing the Customer with the Services.

(b) The Customer acknowledges that Fonika will be unable to provide the Services if the Customer does not agree to the provision and use of its personal information.

(c) The Customer must keep Fonika’s Confidential Information (including the terms of this Agreement) confidential and will not allow any written or electronically recorded Confidential Information to be copied other than for the purposes of this Agreement.

8.3         Access of Confidential Information

(a) Access to the Customer’s personal information is restricted to Fonika’s agents, representatives or employees.

(b) If the Customer requests to access the personal information which it has provided to Fonika, it must notify Fonika in writing of such request.

(c) Fonika shall, upon the written request of the Customer:

  • (i) Provide the Customer with the personal information it has except as provided by the National Privacy Principles; and
  • (ii) Correct the Customer’s personal information or note that personal information is inaccurate, incomplete or out of date, in accordance with the Privacy Act 1988(Cth).

(d) The Customer agrees that Fonika may charge a reasonable fee for accessing archived personal information of the Customer.

8.4         Disclosure

(a) Subject to clause 8.4(b), Fonika will under no circumstances sell or receive payment for licensing or disclosing your consent and authorisation.

(b)  The Customer acknowledges that Fonika may receive and disclose the Customer’s personal information or documents to or from:

  • (i) Credit providers or credit reporting agencies for the purposes of assessing the Customer’s credit risk or notifying them of any default by the Customer;
  • (ii) Carriers, resellers of carrier services or other suppliers to Fonika in connection with the provision of the Services;
  • (iii) Legal representatives or debt collection agencies retained by Fonika to collect any unpaid accounts; and
  • (iv)Any third parties where Fonika is required to do so by law.

8.5         Privacy Policy

(a) By providing Confidential Information to Fonika and obtaining the Services, the Customer acknowledges and consents to the collection, use and disclosure of its personal information as provided in the Privacy Act 1988(Cth) and this Agreement.

(b) The Customer must comply with its obligations under the Privacy Act 1988(Cth) and this Agreement.

8.6         Integrated Public Numbering Database

(a) The Integrated Public Numbering Database (“IPND”) is a centralised database of all Australian telephone numbers. Fonika is required to provide the Customer’s information to the IPND in compliance with the Communications Alliance IPND Code and the Telecommunications Act which may include:

  • (i)The Customer’s name;
  • (ii)The Customer’s address;
  • (iii)Name of the service provider;
  • (iv)The Customer’s telephone number and whether it is used for private or business purposes; and
  • (v)Whether the telephone number is to be listed or unlisted in telephone directories.

(b) The Customer acknowledges that the above information may be disclosed in certain circumstances for users such as public number directory producers, directory and operator assistance providers, law enforcement agencies and emergency services.

Liability and Indemnity

9.1         Limitation of Liability

(a) The sole obligation of Fonika under this Agreement is to use its reasonable efforts to provide the Services and/or Goods or to repair the Goods or repair or replace (at Fonika’s sole discretion) any part of a Goods and/or Services which is found to be defective during the warranty period and in no event shall Fonika be liable for any other claims or damages including, but not limited to, claims for faulty material, negligent or misleading representations or advice, damages arising from loss or use of the products or services, and any indirect, special or consequential damages or injury to any person (including personal injury), corporation or other entity.

(b)  If any Services and/or Goods supplied pursuant to this Agreement are provided to the Customer as a ‘consumer’ of goods or services within the meaning of that term in the Competition and Consumer Act2010 (Cth) (“CCA”), the Customer will have the benefit of certain non-excludable rights and remedies in respect of the Goods or Services and nothing in these terms and conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the CCA is so conferred. However, if the Services and/or Goods are of a kind not ordinarily acquired for personal, domestic or household use or consumption pursuant to the CCA, Fonika limits its liability to:

  • (i)the supply of the Services and/or Goods again;
  • (ii)the repair of the Goods;
  • (iii)the replacement of the Goods or the supply of equivalent Goods;
  • (iv)the payment of the cost of having the Services supplied again; or
  • (v)the payment of the cost of having the Goods repaired or replaced or of acquiring equivalent Goods.

(c) Subject to clause 9.1(b)above, Fonika is not liable for default or failure in performance of its obligations pursuant to this Agreement resulting directly or indirectly from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, the elements, strikes, labour disputes, shortage of suitable parts, components, materials, labour or transportation or any other cause beyond the reasonable control of Fonika.

(d) Subject to clause 9.1(b)above, Fonika is not responsible for any loss caused by an error or defect in the Goods or errors or faults caused by the Services provided by any person other than Fonika.

(e) Fonika is not responsible for any loss of Services due to causes beyond Fonika’s reasonable control which may include, without limitation, force majeure, civil disorder or war, national or local emergency, adverse weather conditions, industrial dispute or acts or omissions of other carriers, carriage service providers or relevant authority.

9.2         Limitation of Warranty

(a) For Goods not manufactured by Fonika, the warranty shall be the current warranty provided by the manufacturer of the Goods. Fonika shall not be bound by or responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

(b) Fonika shall not be responsible for any loss or damage for the Goods, or caused by the Goods, or any part thereof however arising, including loss or damage arising from Fonika’s negligence.

(c) Fonika does not warrant that the Services will be free of interruptions, delays, faults or errors.  Fonika will not be responsible for any loss and/or damage to the Customer or End User’s business that may result from any interruptions, delays, faults or errors in the supply of the Services.

(d) All terms, conditions and/or warranties that may be implied into this Agreement, statutory and otherwise, relating to the provision of the Services by Fonika are excluded to the fullest extent permitted by law.

(e) Fonika and our related bodies corporate have no liability to the Customer and/or to any End User or to any other person, for:

  • (i)the acts or omissions of any third party, including the suppliers which have been engaged by Fonika for the purpose of supplying or maintaining a Service supplied to the Customer under this Agreement;
  • (ii)faults or defects in Services which are caused by the Customer’s own conduct or misuse or the conduct or misuse of the End User;
  • (iii)faults or defects in the Services that arise due to equipment or cabling owned or leased by the Customer or an End User or otherwise in the Customer’s control or the End Users’ control; or
  • (iv)faults or defects in the Services that arise due to failure by the Customer or any third party (other than a contractor or agent engaged by Fonika) to appropriately maintain any equipment or cabling relevant to the supply of the Services.
  • (v)faults or defects that arise in telecommunication services provided to the Customer other than under this Agreement (even if they are connected with Fonika’s consent to Services which Fonika has supplied under this Agreement); and
  • (vi)any loss of revenue or profits, loss of data, loss of bargain and damage to reputation or for any form of indirect or consequential loss, whether in respect of breach of contract, equity, negligence, intended conduct, tort or otherwise, arising out of, or in connection with, the provision of the Services or this Agreement.

9.3         Indemnity

(a) The Customer will be responsible for and will indemnify and forever keep Fonika indemnified against liability for all loss, damage or injury to persons or property caused by the Customer, or its employees or agents, and the amount of all claims, damages, costs and expenses which may be paid, suffered or incurred by Fonika as a result of the Customer’s failure to comply with the terms of this Agreement.

(b)  The Customer shall be liable for any loss, damage or injury to any party or parties (including Fonika and its Customers, or their officers, servants or agents) resulting from its negligent acts or omissions during the use of the Services (including negligent acts or omissions of any of its personnel) and shall indemnify and forever keep indemnified Fonika against any claim or claims made against it.

 

Intellectual Property Rights

10.1      Services from Fonika do not give the Customer any ownership or other property rights in Fonika network or Goods.

10.2      Any Intellectual Property Rights owned by either party prior to the Commencement Date, or developed independently of this Agreement by either party, will continue to be owned by the Customer or Fonika, as the case may be.

10.3      Fonika either owns the Intellectual Property Rights in the Service(s) provided to the Customer, or where Fonika uses any Intellectual Property Rights belonging to anyone else, Fonika have a licence to do so.

10.4      The Customer acknowledges that none of Fonika’s Intellectual Property Rights are transferred to the Customer or the End User.  The Customer further acknowledges that unless specifically authorised by this Agreement, the Customer cannot, and will not, use or reproduce such Intellectual Property Rights for any purpose outside this Agreement.

10.5      All Intellectual Property Rights in any improvements or changes to any Service devised or made by anyone during the time Fonika are providing the Service to Fonika, belong to Fonika.

Miscellaneous

11.1       Assurances

(a) The Customer acknowledges and assures that, upon entering into this Agreement:

  • (i) It has the full power and authority to enter into this Agreement;
  • (ii) It has provided full and accurate business and personal information to Fonika in respect of the Services and that it will continue to ensure that such information is accurate; and
  • (iii) It will do all things necessary to perform its obligations under this Agreement;
  • (iv) It will comply with all relevant local, State and Commonwealth laws and regulations and any registered industry based codes of practice;
  • (v) It will adhere to Fonika’s operational procedures and technical specifications and any other reasonable directions given by Fonika in relation to the Customer’s obligations under this Agreement from time to time;
  • (vi) It will not publish any material comparing the Services provided by Fonika with any other wholesale services offered by any other carrier or carriage service provider;
  • (vii) It will not do, or permit to be done, any act which damages the reputation of Fonika;
  • (viii) It will not make any representation or give any warranty in relation to the Services that is inconsistent with written materials supplied by Fonika;
  • (ix) It will provide Fonika with all information, assistance and co-operation reasonably requested by Fonika;
  • (x) It will ensure that all Goods that the Customer or the End User connect to the Fonika Services is appropriate, adequately maintained and meets minimum technical standards determined by the Australian Communications Authority;
  • (xi) It must not represent expressly or by omission or implication that the Customer are approved by, an agent of, or affiliated with Fonika; and
  • (xii) It must not offer or supply, or purport to offer or supply, any other services of Fonika that are not included in the Services.

11.2      This Agreement does not constitute any party the agent of the other party or imply that the parties intend constituting a partnership, joint venture or other form of association in which any party may be liable for the acts or omissions of the other party. Neither party has authority to pledge the credit of the other party.

11.3      Any request in relation to the Service(s) or this Agreement originating from the Customer’s nominated representative or any of the Customer’s premises or domain name(s) is deemed to be authorised by the Customer.

11.4      No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver.  Nor will any single or partial exercise of any right, power or remedy under this Agreement preclude any other or further exercise of that or any other right, power or remedy.

11.5      Fonika may have subcontractors or other agents meet any of our obligations under this Agreement but Fonika will remain liable to the Customer for satisfying those obligations.

11.6      Fonika may assign any of our rights and obligations under this Agreement without the Customer’s consent.

11.7      The Customer cannot assign any of the Customer’s rights and obligations under this Agreement without Fonika’s prior written consent.

11.8      The Customer shall not exercise any of its rights or perform any of its obligations under this Agreement through any person other than itself and its employees without Fonika’s prior written consent. Irrespective of whether Fonika has provided its consent, the Customer shall remain responsible for the exercise of it rights and the performance of its obligations under this Agreement.

11.9      Each party shall take all steps, execute all documents and do everything reasonably required by the other party to give effect to any of the transactions contemplated by this Agreement.

11.10   Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement or affect the validity or enforceability of that provision in any other jurisdiction.  If any provision or part thereof of this Agreement is made ineffective in any jurisdiction in accordance with this clause, then that provision shall be replaced, to the extent legally possible, with a legal, enforceable, and valid provision that is similar in tenor to the ineffective provision.

11.11   Except as expressly provided for in this Agreement, this Agreement may be amended only by another agreement executed by all parties.

11.12   Any provisions of this Agreement which in order to give effect to their meaning, or to protect the legitimate interests of either party, need to survive its termination will survive termination of this Agreement.

11.13   This Agreement contains the entire agreement between the parties with respect to its subject matter. This Agreement sets out the only conduct, warranties and representations relied on by the parties and supersedes all earlier conduct, warranties and representations by the parties with respect to its subject matter.

11.14   Fonika may, without prior notice to the Customer, set-off any amount owing by the Customer (or any of the Customer’s related bodies corporate) to Fonika under or in respect of this Agreement and/or on any other account against any liability of Fonika to the Customer (or any of the Customer’s related bodies corporate) whether under or in respect of this Agreement or on any other account.  The Customer is not, at any time, except as permitted by law, entitled to any right of set-off against Fonika.

11.15   The parties must pay their own legal and related costs incurred in preparation of this Agreement.

11.16   This Agreement is governed by and takes effect and will be construed in accordance with the laws of New South Wales and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals there from.

11.17   Assignment and Transfer

(a) The Customer must not transfer or assign any rights and obligations under this Agreement without Fonika’s prior written consent.

(b) The Customer must pay Fonika all monies due and outstanding under the term of this Agreement before it transfers to a new carrier.

(c) The Customer acknowledges that Fonika will charge a reasonable fee for porting the Customer’s telephone number to or from Fonika and that not all telephone numbers can be ported to or from Fonika. Fonika reserves any right to reject any request from the Customer to port its telephone number.

(d) The Customer agrees that Fonika may, without notifying the Customer:

  • (i)Transfer its rights and obligations under this Agreement to another entity;
  • (ii) Temporarily or permanently engage another entity to perform its obligations under this Agreement; or
  • (iii) Require the Customer to sign an Agreement in the form of this Agreement with the other entity which Fonika has nominated to perform its obligations under this Agreement and if the Customer cannot be located the Customer authorises Fonika to execute such Agreement with the other entity on behalf of the Customer).

11.18    Enforceability

(a) If any term in this Agreement is not enforceable in a State or Territory of Australia, it does not mean that:

  • (i) That term or right is not enforceable in any other State or Territory of Australia; or
  • (ii) Any other term or right is not enforceable in that State or Territory of Australia or in any other State or Territory of Australia.

11.19    Waiver

(a) A waiver of a provision of or right under this Agreement is effective only if it is in writing signed by Fonika granting the waiver.

11.20    Variation

(a) Fonika may from time to time make changes to the terms of this Agreement by updating the Agreement on its website (https://www.fonika.com.au).

(b)  If the change is detrimental to the Customer, Fonika will notify the Customer of such changes by either:

  • (i)Emailing to the last known address the Customer has provided to Fonika; or
  • (ii) A message on the Customer’s monthly invoice.

(c) The Customer agrees that any changes made to the terms and conditions will take effect and be enforceable against the Customer as soon as Fonika makes such change on its website and notifies the Customer.

(d) Any variation to the terms of the Application Form can only be made by an instrument in writing signed by the Customer or the Customer’s nominated Fonika Channel and Fonika.

11.21    Standard Form of Agreement

(a) This Agreement constitutes a Standard Form of Agreement within the meaning of the Act and is subject to the Act. The Customer agrees and acknowledges that this Agreement may vary from time to time as displayed on Fonika’s website https://www.fonika.com.au/

11.22    Inconsistency

(b) If there is any inconsistency between this Agreement and any documents which Fonika has provided to the Customer, or the terms and conditions on Fonika’s website located at https://www.fonika.com.au/in relation to the Services then the website prevails to the extent of the inconsistency.

11.23    Notices

(a)  A communication required by this Agreement, by a party to another, must be in writing and may be given to them by:

  • (i)Delivering it in writing to the street address of the addressee;
  • (ii) Sending it by prepaid ordinary post (airmail if outside Australia) to the street address of the addressee;
  • (iii)Sending it by facsimile to the facsimile number of the addressee; or
  • (iv)Sending it by email to the email address of the addressee.

(b) A communication is deemed to be served on the Customer by Fonika if:

  • (i) It is sent by prepaid ordinary post and is not returned as undeliverable by Australia Post;
  • (ii) It is sent by facsimile and the facsimile is successfully transmitted to the correct facsimile number; or
  • (iii) It is sent by email and the email is not rejected by the system within 7 days from the date of sending the email.

(c) The parties agree that communication by email is the primary means of communication between the parties.

11.24    Complaints

(a)  Fonika has in place a Customer complaints procedure which is in accordance with the Telecommunications Consumer Protections (TCP) Industry Code (C628:2012).

(b)  The Customer may obtain a copy of Fonika’s complaints procedure by written request to the following address:Complaints Officer PO Box 583 Glebe NSW 2037

(c)  The Customer must notify the Complaint Officer of Fonika in relation to any dispute or compliant with the Services.

(d)  If the dispute cannot be resolved in accordance with Fonika’s complaint procedure within 30 days from the date the Customer notified Fonika, the Customer may refer the matter to the Telecommunications Industry Ombudsman (TIO).

11.25   Governing law and jurisdiction

(a) The laws of New South Wales govern this Agreement.

(b) Each party agrees to submit to the non-exclusive jurisdiction of the courts of New South Wales.

11.26    Severability

(a)  If any provision of this Agreement is, or at any time becomes, prohibited by, or unlawful under, any applicable law, regulation or other condition actually applied or otherwise becomes void or unenforceable, it will be severed from this Agreement and rendered ineffective so far as is possible without modifying the remaining provisions of this Agreement. The remaining provisions will, to the extent permitted by the relevant law, regulation or other condition, continue in full force and effect.

(b) Where, however, the provisions of any such applicable law, regulation or other condition may be waived, they are waived by the Customer and Fonika to, but notbeyond, the full extent permitted by the law, regulation or other condition to enable this Agreement to constitute a valid and binding obligation enforceable in accordance with its terms.

Service Limitations

12.1      Emergency Services 000 dialling

(a) The Customer acknowledges that:

  • (i)The Services require a functional broadband connection to the internet;
  • (ii)The broadband connection may not be provided by Fonika; and
  • (iii)Loss of Services due to power failure, internet service outage in accordance with this Agreement will prevent all outgoing calls including emergency 000 dialling.

(b) The Customer agrees that it will notify Fonika of any change of service address details in a timely manner and acknowledges that the Services may not function correctly if the Customer moves or otherwise changes the physical location of the Services.

(c) Fonika hereby recommends that the Customer have an alternative telephone service to make outgoing calls in emergency such as a mobile telephone service.

12.2      Caller Line Identification Presentation

(a) The Customer acknowledges that Fonika may from time to time route the Customer’s call(s) through a carrier which does not support caller line identification due to network maintenance, server outage or other reasonable reasons.

12.3      Number Portability

(a) Fonika does not guarantee the portability of the Customer’s telephone number to or from its current service provider. Nor does Fonika guarantee any specified timeframe within which the Customer’s current telephone number can be ported.

(b) The porting of any 13/1300/1800 services will be conducted in conjunction with the Industry Numbering Management Services.

(c) In the event that the Customer nominates an incorrect customer name, carrier name or account number on a porting form to Fonika the application may be rejected, or the application will be delayed however a port rejection fee will apply.

(d) Fonika is not responsible for any period of outage, loss of income or business due to any port rejection, withdrawal or reversal.

(e) Telephone numbers can only be ported to Fonika from an active account with your former service provider. A telephone number associated with a suspended or disconnected account cannot be ported any associated porting requests will be rejected.

(f)  In the event that the Customer any add-on services was attached to a telephone line nominated for porting to Fonika the Customer’s application may be delays or rejected however a rejection fee will apply. The Customer must terminate any such add-on services from the nominated telephone line before the application for porting to Fonika. (Add-on services include: link hunt, duet services, Rotary Group services, EFTPOS, broadband, message bank services and facsimile services).

12.4      Priority Assistance

(a) The Customer acknowledges that Fonika does not offer a priority assistance service for life threatening medical conditions.

12.5      13/1300/1800 Numbers

(a) The Customer acknowledges that calls to the 13/1300/1800 services may not function in the event of network congestion where an alternate gateway overflow occurs.

 

 

 

Schedule 1 VOIP Services Description – Services

 

  1. Fonika provides the Customer with Services to make and receive VOIP calls utilising bandwidth and data supplied by the Customer’s internet service provider.
  2. The Customer acknowledges that its internet service provider will classify such use of the Service as data usage.
  3. Voice Calls
Local calls: Make VOIP calls to PSTN telephone services with a geographical number throughout the state of New South Wales.
National calls: Make VOIP calls PSTN telephone services with a geographical number throughout Australia other than the state of New South Wales.
Calls to Australian mobile numbers: Make VOIP calls to Australian mobile telephone services with an appropriate mobile telephone number registered with any Australian mobile telecommunications network.
Calls to international destinations: Make VOIP calls to residential fixed line, international special service or mobile international telephone services.
Calls to special services

Make VOIP calls to special service numbers throughout Australia including:

(i)             13/1300/1800 services;

 

Calls to emergency services

Use the Services to dial ‘000’ emergency services.

The Customer acknowledges that the Services cannot be connected if there is a power outage, when internet connection is interrupted or the Services are under maintenance.

 

Schedule 2 Voice Over Internet Protocol (“VOIP”) Services Description – Charges

 

  1. The monthly service fee for the Services is:

[*] – As per Application form provided to Customer

  1. The Customer acknowledges that the following call charges will be applied to the Services:

 

Local and National calls Connected calls with duration of one second or more will be charged at the rate of [*].
Calls to Australian mobile numbers: Connected calls with duration of one second or more will be charged at the rate of [*].
Calls to international destinations:

Connected calls with duration of one second or more will be charged at the rate of [*].

Calls rates vary by destination and call type.

Calls to special services Connected calls with duration of one second or more will be charged at the rate of [*].
Calls to emergency services No charge for calls to emergency services.

*All call charges include GST.

 

  1. Miscellaneous Charges for the Services include the following:
Connection Fee: As per Application form
Disconnection Fee: $180.00
Reconnection Fee: $90.00
Administration Fee: $55.00
  1. Fonika may provide the Customer who is a standard small to medium sized business included call plans. The included call plans for each Customer vary and will be indicated in the Application Form.