1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires:
“Agreement” means these General Terms and Conditions and the Order Form in that order;
“Application Software” means all software, functionality, methodologies, services, Documentation and capability as specified in the Order Form;
“Application Software Support Services” means any support processes and service levels in respect of the Application Software set out in ipSCAPE’s standard support processes and service levels document and any additional services set out in the Order Form, and any additional support services that The Customer may request and ipSCAPE agrees to supply from time to time;
“Calling Line Identification Laws” means legislation, industry codes and guidelines relating to the handling and use of the calling line identification number including without limitation the Privacy Laws, part 13 of the Telecommunications Act 1997, the Australia Communications Industry Forum Industry Code – Calling Number Display (ACIF C522:2007 February), and any applicable equivalent laws in any other jurisdiction;
“Change Request” means the procedure set out in these Terms and Conditions and as further elaborated in Clause 27 below;
“Client” means any third party for whom The Customer performs, or is engaged to perform a service using the Application;
“Commencement Date” means the date of last signature on the Order Form or commencement date if a specific date is selected for commencement of this Agreement;
“Communications Service Provider” means a carrier service provider of communication services that is approved by ipSCAPE to provider some or all of the Services to The Customer;
“Confidential Information” of a party means all confidential data and information (including trade secrets and confidential know how) relating to that party, to its suppliers or The Customers, or to a Related Company or otherwise to that party, of which the other party becomes aware, either before or after the day this Agreement is signed. Confidential Information of ipSCAPE includes the design, specification and content of the Application,
the personnel, policies or business strategies of ipSCAPE and the terms of this Agreement;
“The Customer” means the person, company or other legal entity nominated as The Customer in the Order Form and includes its Related Companies. If The Customer comprises more than one person the Agreement will bind each of those persons jointly and severally;
“The Customer Data” means any and all data deposited, entered or added to the Application Software by or on behalf of The Customer or by ipSCAPE on behalf of The Customer and includes data owned or provided by Clients, data supplied by a third party and data derived from The Customer Data through the Application Software (including metadata analysis and data generated via the addition of supplementary information);
“The Customer Responsibilities” means The Customer responsibilities or obligations set out in this Agreement including the Order Form and anything The Customer is reasonably required to do to enable ipSCAPE to efficiently provide the Services;
“Documentation” means any documentation describing the features of, and means of use of, the Application, including the Features Matrix as published and amended by ipSCAPE from time to time;
“Do Not Call Laws” means the Do Not Call Register Act 2006 (Cth) administered by the Australian Communications and Media Authority, and any applicable equivalent legislation in any other jurisdiction;
“Emergency” means a situation that, unless immediately remedied, has the potential to jeopardise human life or safety or to cause immediate risk to property;
“Emergency Outage” means a necessary and unavoidable requirement from time to time for ipSCAPE to carry out emergency maintenance to the hardware and/or Application software in order to maintain appropriate levels of service quality;
“Features Matrix” means the list of all software features and major functionality of the Application;
“Fees” means the amounts specified in the Order Form or otherwise agreed in writing between the parties;
“Force Majeure Event” affecting a party means a circumstance beyond the reasonable control of that party causing that party to be unable to observe or perform on time an obligation under this Agreement, including acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and acts of war , general strikes (other than of its own staff), embargo, or power, water and other utility shortage or acts or omissions of Communication Service Providers ;
“Goods and Services Tax” or “GST” means any goods and services or value added tax imposed by the GST Law;
“GST Exclusive Value” has the same meaning as in the GST Law;
“GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth.) as amended or replaced from time to time, and any associated or equivalent legislation and regulations in any jurisdiction to the extent they relate to a Goods and Service Tax;
“Implementation” means the implementation services set out in the Order Form if any or relevant statement of works;
“Intellectual Property Rights” means all intellectual property rights including patent, copyright, trade mark (registered and unregistered), designs and any other rights of a like nature subsisting or conferred by law in force in any part of the world;
“ipSCAPE Equipment” means the hardware and peripherals provided by ipSCAPE (if any), , and installed at The Customer site for the purposes of providing the Services to The Customer;
“ipSCAPE Responsibilities” means the ipSCAPE responsibilities set out in the Order Form;
“Maximum Users” means the maximum number simultaneously logged-in users as defined in the Order Form;
“Minimum Operating Environment” means the network specification document supplied by ipSCAPE from time to time;
“Non-excludable Condition” means an implied condition, warranty or guarantee, including under the Competition and Consumer Act 2010 (Cth.), the exclusion of which from a contract would contravene any statute or cause any part of this Agreement to be void;
“Operating Environment” has the meaning given in clause 5.1;
“Order Form” means the Order Form to which these general Terms and Conditions apply;
“Payment Card Rules” means the Payment Card Industry (PCI) rules relating to credit card payments released by the PCI Security Standards Council (or its successor) from time to time and any applicable equivalent rules or legislation in any jurisdiction;
“Planned Outage” means a period of time that ipSCAPE may interrupt its supply of the Services to The Customer for routine maintenance or upgrading or other similar processes;
“PPSA” means the Personal Property Security Act 2009 (Cth.) and any applicable equivalent legislation;
“Privacy Laws” means the Privacy Act 1988 (Cth) and any applicable equivalent legislation or rules in any jurisdiction;
“Regulator” means a regulatory authority that has the power to impose obligations or penalties in relation to the Services provided under this Agreement and includes the Australian Communications and Media Authority or equivalent any authority in any applicable jurisdiction;
“Related Company” has the meaning given to the term related body corporate under Section 9 of the Australian Corporations Act 2001 (Cth);
“Service Level Agreement” or “SLA” means a measurable level of service relating the supply of any Services and may include stipulation of service credits for failure to meet service standards;
“Services” means the services provided by ipSCAPE in accordance with this Agreement and includes provision of, or provision of access to, the Application Software, the Implementation, the Application Software Support Services and the provision of any other goods and services described in the Order Form;
“Statute of limitations” means the Limitations Act 1969 (NSW) and all relevant provisions to the operations of this act;
“Super User” means The Customer nominated person or persons who have been trained in the use of the ipSCAPE Application Software and have been certified by ipSCAPE as a Super User;
“Tax Invoice” means a tax invoice as defined in the GST Law, which also specifies the GST component of the Taxable Supply;
“Taxable Supply” has the same meaning as in the GST Law;
“Telecommunications Services” means any telecommunication links, PABX, telephone numbers used to receive calls or outbound calling services used to make outbound calls;
“Term” has the meaning given in clause 2;
“Termed Commitment” means the length of time, either 12, 24 or 36 months that the Customer is obligated to pay for the Services or service as nominated in the Order Form or Change Request under this Agreement.
“Termination Charge” means the amount if any set out in the Order Form and;
a. all unpaid one-off charges, ongoing monthly Fees and any other charges incurred up to and including the date of termination;
b. All Termed Commitment and charges agreed to by The Customer for the remaining term as indicated in the Order Form or otherwise agreed;
c. all ongoing minimum monthly Fees that would have been payable for the remainder of the Fixed Period (if applicable) or a Fee equivalent to the most recent monthly invoice if 30 days written notice is not given for termination after the Fixed Period has ended or if an Open Ended Period applies; and
d. any taxes payable by The Customer
“Third Party Software” means the Equipment that is in the nature of software programs proprietary to third parties or otherwise and that is provided by the Supplier to the Reseller, whether standalone or installed on any Equipment
“Time and Materials Rates” means the time and materials rates most recently published by ipSCAPE from time to time or as otherwise agreed in writing between ipSCAPE and The Customer and set out in the Order Form;
“Unacceptably High Credit Risk” means that ipSCAPE reasonably considers there is some doubt as to The Customer’s ability to pay the Fees as and when they fall due, including as a result of:
e. The Customer’s previous payment history and payment behaviour (e.g. late payment, dishonoured payments or failure to pay);
f. any previous advice from The Customer about a potential inability or unwillingness to pay; or
g. The Customer’s use of the Service being inconsistently high when compared with previous usage patterns.
“VoIP Services” means the provision of a voice over internet protocol (VoIP) telephone service to enable The Customer to make or receive calls in Australia, including local, national, fixed to mobile and international telephone calls, and is a carriage service which uses third party suppliers’ networks.
1.2 In this Agreement, unless the context otherwise requires:
a. to the extent of any inconsistency between these General Terms and Conditions and the Order Form, these Terms and Conditions will prevail except to the extent that the Order Forms contains terms marked as “special conditions”;
b. headings are for convenience only and do not affect interpretation;
c. the singular includes the plural and conversely;
d. one gender includes all genders;
e. where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
f. a reference to a person includes any, body corporate, unincorporated body or other entity and conversely;
g. a reference to a clause is to a clause of this Agreement;
h. a reference to any party to this Agreement or any other agreement or document includes the party’s successors and permitted assigns;
i. a reference to any agreement or document is to that agreement or document as amended, notated, supplemented, varied or replaced from time to time, where applicable, in accordance with this Agreement or that other agreement or document;
j. a reference to any legislation or to any provision of any legislation includes any modification or reenactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it;
k. a reference to conduct includes, any omissions, statement or undertaking, whether or not in writing;
l. a reference to includes, means includes without limitation;
m. all references to $ are to Australian dollars, unless otherwise specified; and
n. a reference to a time means the time in Sydney, Australia, unless otherwise specified.
2.1 This Agreement commences on the Commencement Date as set out in the Order Form and, unless terminated earlier in accordance with its terms, will continue for the term set out below (“Term”):
a. if the Fixed Period option is selected in the Order Form:
i. for at least the period set out in the Order Form; and
ii. at the end of the Fixed Period this Agreement will continue indefinitely unless and until either party gives 30 days written notice to terminate this Agreement; or
b. if the Open Ended Period option is selected in the Order Form, this Agreement will continue indefinitely unless and until either party gives 30 days written notice to terminate or materially vary this Agreement.
3. GRANT OF LICENCE AND DATA
3.1 Subject to the terms and conditions of this Agreement, including The Customer’s payment of the Fees, ipSCAPE grants to The Customer during the Term a non exclusive, limited, non transferable, non sub licensable licence to access and use the Application.
3.2 The Customer accepts and agrees to use the Application Software in accordance with the terms and conditions of this Agreement and subject to the terms contained in the End User Licence Agreement EULA which may be updated from time to time at ipSCAPE’s discretion.
3.3 During the Term, The Customer grants to ipSCAPE a worldwide, royalty free licence to use, reproduce, modify and adapt The Customer Data to the extent necessary for ipSCAPE to provide the Services and make the Application Software available to The Customer in accordance with this Agreement.
4. LICENCE TERMS
4.1 ipSCAPE will retain copies of The Customer call recordings for an eight week period from the date of the call. ipSCAPE will not be responsible for maintaining any call recordings beyond this period of time, unless a specific archiving strategy and Fees have been agreed in writing with The Customer.
4.2 If The Customer requests retrieval of a call recording, then subject to an event described in clause 4.3 preventing such recording, ipSCAPE may provide The Customer with a digital file of the requested call recording as soon as reasonably practicable.
4.3 ipSCAPE is entitled to suspend all or part of the Services immediately where:
a. there is a Planned Outage or an Emergency Outage;
b. an Emergency occurs;
c. a Force Majeure event occurs;
d. ipSCAPE considers that it is necessary for unscheduled repair, maintenance or service of any part of its service;
e. ipSCAPE, acting reasonably, suspects that there has been fraudulent or illegal use of the Services;
f. ipSCAPE reasonably believes that there is excessive or unusual use of the Service, having regard to amongst other things, The Customer’s previous usage or any forecast given to ipSCAPE; or
g. ipSCAPE reasonably believes that The Customer is jeopardising the operation or quality of services that ipSCAPE supplies to its The Customers.
4.4 The Customer indemnifies ipSCAPE, and will keep ipSCAPE indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) resulting from or in connection with lost, damaged and or non accessible call recordings,
4.5 On expiration or termination of this Agreement for any reason, ipSCAPE will:
a. provide The Customer with a copy in an industry standard format of all raw The Customer Data recoverable on request; and
b. unless instructed to do so sooner by The Customer, permanently destroy all The Customer Data stored by ipSCAPE in connection with the Application Software within 8 weeks after termination.
c. Reasonable costs may be passed to the Customer in retrieving this data and providing it to The Customer.
5. APPLICATION SOFTWARE OPERATING ENVIRONMENT
5.1 The Customer acknowledges that it is solely responsible for providing any operating environment, facilities, equipment and telecommunications and internet connections (not supplied by ipSCAPE under this agreement) necessary to using and obtaining the benefit of the Application Software (“Operating Environment”).
5.2 The Customer agrees to keep ipSCAPE harmless and acknowledge that ipSCAPE is not liable to the extent that The Customer fails to ensure the Operating Environment meets the Minimum Operating Environment.
6. APPLICATION SOFTWARE AND SERVICES
6.1 ipSCAPE will provide the Services and comply with the ipSCAPE Responsibilities as set out in the Order Form in accordance with the terms and conditions of this Agreement.
6.2 ipSCAPE will use its best endeavours to meet any Service Levels set out in this Agreement however it is not a breach of this Agreement merely because a service level is not met.
6.3 The Customer warrants that it has made its own inquiries and has satisfied itself of the adequacy and suitability of all Services to be supplied to The Customer.
6.4 The Customer accepts and agrees to use the Application Software in accordance with the terms and conditions of this Agreement and subject to the terms contained in the EULA which may be updated from time to time at ipSCAPE’s discretion. To the extent of any inconsistency between these terms and conditions and the EULA , the terms and conditions will prevail.
6.5 At any time during the Term, The Customer may request the supply of ad hoc or additional Services by notifying ipSCAPE in accordance with Clause 27 in writing of the nature of the Services required. Unless otherwise agreed between the parties, the fees payable for the ad hoc Services will be charged at the applicable Time and Materials Rate.
6.6 The Customer must promptly comply with The Customer Responsibilities and any reasonable directions from ipSCAPE to enable ipSCAPE to efficiently provide the Services.
6.7 ipSCAPE may vary the Application Software or Services by providing 7 days’ notice to The Customer at any time.
6.8 The Customer must nominate an ipSCAPE Super User that after appropriate training ipSCAPE will certify as a Super User. If the Super User resigns, retires or permanently leaves the contract or employment of The Customer then ipSCAPE will charge The Customer for up to five days of training plus any out of pocket expenses to certify a replacement Super User.
6.9 The provision of the Application Software and the Services is subject to and dependent on The Customer securing the listed goods and/or services set out in the Order Form or outlined as dependencies for the Application Software and/or the Services. The provision of the Services and the performance of the Application Software are dependent on The Customer performing The Customer Responsibilities by the relevant date.
7. VOIP SERVICES
7.1 ipSCAPE may be contracted to provide VoIP Services under this Agreement to The Customer and where that occurs The Customer must use the VoIP Services in accordance with this Agreement including without limitation by:
a. Not altering, defacing or otherwise tampering in any way with the VoIP Service, or assisting another to do so;
b. Complying with all directions, requirements and policies of any relevant Governmental Agency or legal body regulating the use of VoIP service; and
c. Complying with all directions issued by ipSCAPE to assist ipSCAPE in complying with any laws, regulations or codes in respect of its operation and provision of the VoIP Services.
7.2 The Customer acknowledges that ipSCAPE is required to supply certain information concerning The Customer to regulators and other Governmental Agencies for their purposes including but not limited to any public numbers allocated, The Customer’s name and address, location of the VoIP Service being provided and the purpose of use.
7.3 The Customer commits, and shall require all third parties with authorised access to the Service commit, to use the Service:
a. in accordance with all of the terms and conditions of this Agreement;
b. in compliance with all laws, regulations or industry codes, as they apply from time to time during the Term; and
c. in a way that does not damage the reputation or quality of the VoIP Service or of any Equipment or that interferes with or interrupts the VoIP Service.
7.4 The Customer acknowledges that the performance of some VoIP Services provided under this Agreement may be affected by the levels of use of others or by activities beyond the control of ipSCAPE.
7.5 ipSCAPE does not warrant that any VoIP Services provided by ipSCAPE under this Agreement will be continuously available, error-free, free of blockages or interruptions and will always be available, or otherwise free of delays or faults.
7.6 The Customer agrees that ipSCAPE will not be responsible for rectifying any fault in the VoIP Service if that fault arises in respect of, or is caused by the network or infrastructure of another supplier of telecommunications services or any other infrastructure, equipment or facilities that are outside ipSCAPE’s reasonable control or responsibility, including a fault caused by a third party.
7.7 The Customer acknowledges and agrees that the VoIP Service is not a replacement or substitute for a standard telephone service as the VoIP Service relies on a supply of electricity and a current and active network service. As a result, the VoIP Service should not be relied upon by The Customer to connect to emergency services.
7.8 The Customer is required to ensure that ipSCAPE’s records as to the location of the VoIP Service are up-to-date as calls to emergency services rely on this information. The Customer may need to give personal information to the emergency services (including full address and telephone number details) each time a call is made to the emergency services. The Customer acknowledges that ipSCAPE does not provide priority assistance services or any services of that nature.
7.9 The Customer indemnifies ipSCAPE, and will keep ipSCAPE indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) resulting from or in connection with VoIP Services that is beyond ipSCAPE control.
8. PAYMENT OF FEES
8.1 Unless otherwise provided in the Order Form or agreed between the parties, ipSCAPE will issue invoices as follows:
a. On signature for any up front (implementation) charges set out in the Order Form; and
b. Monthly in advance for all recurring fees including but not limited to capacity reservation, Termed Commitment etc (excludes recurring usage charges).
c. Monthly in arrears for all recurring usage fees as indicated in the Order Form or otherwise agreed (including but not limited to agent licence usage (not reservation), call charges and any other variable monthly cost).
8.2 The Customer must pay each invoice issued by ipSCAPE within 30 days of the date it is issued. Unless otherwise agreed, payment must be made by direct deposit in to ipSCAPE’s nominated bank account. An additional charge may apply to any payments made by way of a credit card. If The Customer disputes an invoice, it must provide the notice of dispute within 14 days of the invoice date and pay the undisputed portion. For any disputed portion the parties must in good faith attempt resolution before the due date (30 days) failing which the dispute resolution provisions in clause 22 will apply in respect to the unpaid portion.
8.3 If ipSCAPE reasonably incurs additional expenses or disbursements necessary to carry out its obligations under this Agreement, ipSCAPE may pass on those expenses or disbursements to The Customer. ipSCAPE shall inform The Customer in advance of incurring any additional expense and The Customer shall only be liable if such expenses are agreed in advance, provided always that The Customer shall agree to all reasonable expenses in connection with ipSCAPE performing its obligations under the Agreement. ipSCAPE may include an expense as a line item on an invoice it issues subsequent to incurring the expense.
8.4 The Fees will be subject to an annual price increase on each anniversary of the Commencement Date equivalent to the higher of 5% or the All Groups Consumer Price Index (CPI) published by the Australia Bureau of Statistics. If The Customer fails to make any payment to ipSCAPE required under this Agreement when due, ipSCAPE is entitled to charge The Customer interest from the day on which payment was due to the date of payment at the annual rate of 3% per annum above the Westpac bank indicative lending rate as published from time to time in the Australian Financial Review.
8.5 The Customer acknowledges and agrees that if it issues purchase orders to ipSCAPE then it does so for its own administrative convenience and The Customer agrees that all invoices issued by ipSCAPE are valid and payable under the terms of this Agreement without the need for any purchase order process.
8.6 ipSCAPE may, on 30 days prior written notice to The Customer, alter the frequency of its invoicing cycle and The Customer agrees to pay any pro rata invoices to give effect to such adjustment.
8.7 ipSCAPE may offset any amounts payable to The Customer against any outstanding Fees.
8.8 ipSCAPE shall have 160 days (as per clause 5.4.2 of the Telecommunications Consumer Protections Code (No. C628:2012), or such longer period as permitted by such code or any replacement code) from the last day of the end of the quarterly period in which such services were performed within which to reconcile all its charges and billing for that period and to raise any retrospective invoices that may be required to rectify any unbilled charges owing by The Customer.
8.9 ipSCAPE shall use all reasonable efforts to keep its billing up-to-date and shall inform The Customer in writing as soon as practicable if ipSCAPE becomes aware of any unreconciled or unbilled charges
8.10 All amounts referred to in this Agreement are referred to on a GST Exclusive Value basis.
8.11 If any supply under this Agreement is a Taxable Supply, the party making the supply may, in addition to the payment for the Taxable Supply, recover the amount of the GST applicable to the Taxable Supply. Any amount of GST payable is payable at the same time as the payment for the Taxable Supply to which it relates.
9. USE OF THE CUSTOMER LOGO
9.1 The Customer grants ipSCAPE a licence during the Term to use their logo and name but such use is always subject to The Customer’s prior consent before intended publication or display. Once this Agreement is at an end ipSCAPE will immediately cease from displaying or using The Customer’s name and logo in any manner unless otherwise agreed in writing.
9.2 However should ipSCAPE inadvertently use The Customer logo without appropriate consent, The Customer will advise ipSCAPE and provide ipSCAPE with reasonable time to cease such use.
10. THE CUSTOMER OBLIGATIONS, WARRANTIES, AND INDEMNITIES
10.1 The Customer warrants that:
a. it has the authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
b. The Customer warrants that it has made its own inquiries and has satisfied itself of the adequacy and appropriateness of the Application Software and Services supplied to The Customer under this Agreement;
c. provide ipSCAPE with any working practices, rules or procedures (if any) applicable to ipSCAPE when ipSCAPE is providing the Services at the Customer’s site;
d. comply with all obligations set out in the Annexures, Change Requests and Confirmations;
f. it will give proper consideration and weight to the interests of ipSCAPE in all dealings and abide by any reasonable rules or instructions relating to the use or performance of the Application Software notified by ipSCAPE;
g. it will not develop, distribute or sublicense, or permit or assist any other person to develop, distribute or sublicense (whether directly or indirectly) any software that performs functions substantially similar to the Application;
h. it will not make any representations or give any warranties or other benefits in favour of any party (including a Client or proposed Client) that may give rise to a liability of ipSCAPE (other than with the approval in writing of ipSCAPE);
i. it will act in good faith towards ipSCAPE and provide such assistance and cooperation as is practicable on request by ipSCAPEfor the delivery of the Services;
j. it will provide the remote access to allow ipSCAPE to deliver the Services;
k. it will provide the requisite contact to allow ipSCAPE to effectively supply the Services required under the Agreement;
l. it will give full and punctual performance of its obligations under this Agreement including providing any reasonable information and assistance requested by ipSCAPE including conducting site surveys, where relevant;
m. it will promptly inform ipSCAPE of any facts or opinions directly relevant to the marketing of the Application Software and any use of the Application Software which is advantageous or disadvantageous to the interests of ipSCAPE;
n. it will comply at all times with applicable laws and regulations including Privacy Laws and Payment Card Rules as applicable; and
o. it will not do anything or make any statement that could harm the reputation of ipSCAPE, the Application Software or Services.
10.2 The Customer will be solely responsible for any representations, warranties or guarantees made or published concerning the Application Software or Service by The Customer to the extent that such representations, warranties or guarantees are inconsistent with any warranties in this Agreement.
10.3 The Customer indemnifies ipSCAPE and its directors, officers, employees, contractors and agents against all losses (but excluding economic or consequential losses) suffered by ipSCAPE as a result of:
a. any use by any third party (including any Related Companies) of, or access by any third party to, any Application Software or Service provided by ipSCAPE to The Customer to the extent that the loss was not occasioned by wrongful, reckless or negligent conduct of ipSCAPE;
b. any information, data, images, graphics or material produced, stored, transmitted, accessed, downloaded or used by The Customer, Client or any other person using the Services; and
c. any claim made or action brought against ipSCAPE by any person to whom The Customer grants access to the Service, including without limitation any Client.
10.4 The Customer is responsible for the acts or omissions of any third party using the Application Software or Service (including of its Related Companies) as if they were its own.
11. IPSCAPE’S OBLIGATIONS AND WARRANTY
11.1 ipSCAPE warrants that:
a. it has the authority to enter into and perform it obligations under this Agreement and that this Agreement has been duly executed and is a legal, valid and binding Agreement;
b. it will act in good faith towards The Customer and provide such assistance and co operation as is practicable on request by The Customer; during the term.
c. it will provide the Services in a manner consistent with general industry standards reasonably applicable to the provision of those Services and substantially in accordance with the requirements set out in the Order Form. However, ipSCAPE does not warrant that the Services and operation of the Application Software will be uninterrupted or error free.
d. it has all rights necessary to supply the Documentation and to license the Application Software in accordance with this Agreement;
e. it will comply at all times with applicable law and regulation, including the Privacy Laws as they apply to ipSCAPE from time to time; and
f. it will not do anything or make any statement that could harm the reputation of The Customer.
11.2 ipSCAPE provides the Service as is and makes no warranty as to the suitability of the Service to The Customer.
12. THE CUSTOMER DATA
12.1 ipSCAPE acknowledges that The Customer Data is Confidential Information and is the sole and exclusive property of The Customer and ipSCAPE or its suppliers do not have any interest in any The Customer Data. The Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and Intellectual Property Rights ownership or right to use all The Customer Data, and ipSCAPE will not be responsible or liable for the deletion, correction, destruction, damages, loss or failure to store any The Customer Data.
12.2 The Customer warrants that no third party Intellectual Property Rights are or will be infringed by The Customer’s use of the Application Software in association with The Customer Data, including any third party Intellectual Property Rights in any The Customer Data.
12.3 The Customer acknowledges that it is solely responsible for the accuracy and appropriateness of any The Customer Data.
12.4 The Customer indemnifies ipSCAPE, and will keep ipSCAPE indemnified from and against any and all liabilities, losses, claims, damages, demands, expenses or costs (including without limitation all consequential or special losses, loss of profit, loss of reputation and all interest, penalties and legal or other professional advisors’ fees) resulting from or in connection with The Customer Data, except and to the extent arising from any negligent act or omission of ipSCAPE.
13. TELECOMMUNICATIONS SERVICES
13.1 The Customer acknowledges that it will acquire and use Telecommunication Services from an ipSCAPE approved Communications Service Provider as part of its use of the Services, and even when those Telecommunications Services are acquired by ipSCAPE for The Customer’s use, ipSCAPE has no control over the usage of these Telecommunication Services by The Customer and Clients and The Customer accepts full liability and indemnifies ipSCAPE for any loss that may arise from the inappropriate or illegal use of the Telecommunications Services including without limitation failure to comply with laws relating to collection, use and disclosure of call recordings and other personal information, laws relating to unsolicited electronic messages (spam) and contraventions of the Do Not Call Laws and Calling Line Identification Laws.
13.2 The Customer acknowledges that it will acquire telecommunications links as directed by ipSCAPE from an ipSCAPE approved Communications Service Provider as part of its use of the Services.
13.3 ipSCAPE may notify the appropriate Regulator that The Customer is the beneficial user of the Telecommunications Services, so that any complaint or enquiry received from the regulator in respect of any register or rules established under any Do Not Call Laws or any other applicable legislation, will be directed to The Customer at all times. The Customer accepts full liability and indemnifies ipSCAPE for any loss that may arise from any contravention of any Do Not Call Laws or any other applicable legislation.
14. CONFIDENTIAL INFORMATION
14.1 Each party:
a. may use Confidential Information of the other party solely for the purposes of exercising its rights and performing its obligations under this Agreement and otherwise for the purposes of this Agreement;
b. except as permitted under clause14.1c, must keep confidential all Confidential Information of the other party; and
c. may disclose Confidential Information of the other party only to employees and subcontractors who are aware and agree that the Confidential Information of the other party must be kept confidential and are bound by obligations of confidentiality substantially the same as those set out in this Agreement; and either have a need to know (and only to the extent that each has a need to know), or have been specifically approved by the other party;
d. to persons other than those referred to in clause 14.1c who have entered into a confidentiality agreement on substantially similar terms to the confidentiality requirements specified in this clause 14; or as required by law or stock exchange regulation.
14.2 Even though information is the Confidential Information of a party, the other party is not obliged to comply with clause 14.1 in relation to that Confidential Information if:
a. the Confidential Information becomes public knowledge during this Agreement except due to a breach of this Agreement;
b. the other party becomes aware of that Confidential Information from a third person who does not owe a duty of confidentiality to the party that owns the Confidential Information; or
c. where it remains known to an employee of the other party after that employee has ceased to be involved in the performance of this Agreement, and has become part of the general skill and knowledge of that employee;
d. in circumstances where there was no breach of any obligation of confidentiality.
14.3 A party’s obligations of confidentiality in this Agreement do not apply to information which:
a. that party can prove was developed independently by that party without reference to the Confidential Information of the other party;
b. that party can prove was known to that party prior to the disclosure of the information by the other party.
15.1 Each party must comply with all Privacy Laws.
15.2 The Customer may, at its sole discretion, reveal the terms of this Agreement which relate to the confidentiality and security of The Customer Data to a Client or prospective Client provided that The Customer first obtains a signed non disclosure agreement from that party to whom the disclosure is made.
16. INTELLECTUAL PROPERTY
16.1 The Customer acknowledges that ipSCAPE and its Suppliers owns or have the right to use all Intellectual Property Rights in the Application Software and the Documentation and Services provided under this Agreement, and that this Agreement does not transfer ownership of any Intellectual Property Rights to The Customer.
16.2 Any Intellectual Property Rights in improvements, amendments or adaptations to the Application Software or Documentation whether made by ipSCAPE, The Customer or anyone else is the property of ipSCAPE. The Customer agrees to do all things reasonably required to give effect to this clause.
16.3 The Customer must notify ipSCAPE immediately if it becomes aware of any:
a. unauthorised access to or use of the Application Software or Documentation or Services; or
b. other breach of any Intellectual Property Rights of ipSCAPE.
16.4 ipSCAPE indemnifies The Customer against any liability (including liability for reasonable legal costs) under an injunction or final judgement against The Customer, based on a claim that use of any Application, or Documentation, by The Customer in accordance with this Agreement is an infringement of the Intellectual Property Rights of any third person (“Claim”), except to the extent any such infringement is caused by an act or omission of The Customer but only if:
a. The Customer notifies ipSCAPE immediately after it becomes aware of the Claim;
b. ipSCAPE has sole control over defence of the Claim (even in The Customer’s name) and any negotiations to settle the Claim;
c. The Customer allows its name to be used in any proceedings arising out of the Claim; and
d. The Customer provides to ipSCAPE all other assistance reasonably requested (and paid for) by ipSCAPE to defend or settle the Claim.
16.5 If a Claim is made, ipSCAPE may:
a. procure for The Customer the right to continue using the Application, or the Documentation, free of the Claim; or
b. replace or modify the Application, or the Documentation, so that they are no longer infringing.
16.6 Nothing in this Agreement assigns to ipSCAPE ownership of any Intellectual Property Rights in any Customer Data or any other materials provided to ipSCAPE by The Customer
17. EXCLUSION AND LIMITATION OF LIABILITY
17.1 ipSCAPE makes no express warranties under this Agreement, other than the warranties in clause 11.
17.2 ipSCAPE excludes from this Agreement all conditions, warranties and terms implied by statute, general law or custom, except any Non excludable Condition.
17.3 Except for liability in relation to breach of any Non-excludable Condition and liability under clause 17.6, ipSCAPE total liability to The Customer in contract, including for one or more breaches of any express term or terms of this Agreement (in aggregate), tort (including in negligence), statute, or otherwise, is limited to an amount equal to the total amount paid by The Customer to ipSCAPE under this Agreement during the 12 months before the first liability arose.
17.4 ipSCAPE’s total liability to The Customer for a breach of any Non excludable Condition (except where by law ipSCAPE’s liability cannot be limited) is limited, at ipSCAPE’s option, where the breach relates to goods, the repair or replacement of the goods or paying the cost of having the goods repaired or replaced, or where the breach relates to services, supplying those services again, or paying the cost of having those services supplied again.
17.5 For the avoidance of doubt, the Customer shall not be entitled to recover any monies from ipSCAPE more than once in respect of the same loss or damage that is suffered by the Customer.
17.6 Except for liability in relation to breach of any warranty under clauses 11, 14 or 15 or a Non-excludable Condition, ipSCAPE excludes all liability to the Customer for lost profits, loss of goodwill, loss of reputation, lost revenue, lost savings, not meeting targets or previous averages, opportunity cost, loss of data and any direct, consequential or indirect loss arising out of, or in connection with, any Services, the Application, any
Documentation, and any claims by any third person (including any Client), or this Agreement, even if ipSCAPE knew that loss was possible or the loss was otherwise foreseeable.
17.7 The Customer may not commence any claim or proceedings against ipSCAPE for any liability under or in connection with this Agreement outside of the maximum time periods provided under the Statute of Limitations.
17.8 In no event will ipSCAPE have any liability for non-provision or delay in the provision of the Services to the extent to which such non-provision or delay is attributable to the acts or omissions of the Customer, its Affiliates, its employees, its sub-contractors, its agents (other than ipSCAPE) and/or an End User.
17.9 The loss or damage that a party may recover from the other will be reduced to the extent that loss or damage is caused or contributed by the party suffering such loss or damage.
18. TERMINATION AND SUSPENSION
18.1 A party (“Terminating Party”) may immediately terminate this Agreement on written notice to the other party (“Terminated Party”) if the Terminated Party breaches any non monetary term of this Agreement, and fails to remedy that breach within 14 days after receiving notice requiring it to do so.
18.2 ipSCAPE is entitled, without prejudice to its other termination rights, to terminate this Agreement or suspend all or part of the Services immediately where:
a. The Customer fails to pay any amount due under this Agreement by 7 days after the date it is due;
b. it is necessary due to a Force Majeure Event;
c. ipSCAPE has a right under the Agreement to terminate the Service;
d. ipSCAPE, acting reasonably, suspects that there has been fraudulent or illegal use of the Services;
e. The Customer has breached its credit terms with ipSCAPE or in ipSCAPE’s reasonable opinion The Customer poses an Unacceptably High Credit Risk;
f. The Customer attempts to assign, or assigns, any right under this Agreement otherwise than in accordance with clause 20;
g. The Customer is subject to any event referred to in clause 18.3(whether or not notified);
h. The Customer undergoes a change in control, and ipSCAPE considers on reasonable grounds that such a change in control will be detrimental to ipSCAPE’s interests; or ipSCAPE, in its absolute discretion, determines that the Service is no longer economically viable for ipSCAPE to provide.
18.3 The Customer is entitled, without prejudice to its other termination rights, to terminate this Agreement with 48 hours notice where:
a. it is necessary due to a Force Majeure Event;
b. The Customer has a right under the Agreement to terminate the Service;
c. ipSCAPE attempts to assign, or assigns, any right under this Agreement otherwise than in accordance with clause 20;
d. ipSCAPE is subject to any event referred to in clause 18.3 (whether or not notified); or
e. During the first 30 days of this Agreement only, The Customer, in its absolute discretion, determines that the Service is no longer required or does not meet the requirements of The Customer.
19. POST TERMINATION
19.1 On expiration or termination of this Agreement for any reason, The Customer must immediately:
a. stop using the Application Software and Services;
b. destroy or return to ipSCAPE, at its option, all copies of any Documentation and Confidential Information of ipSCAPE in its possession or control; and
c. Returns any goods or ipSCAPE Equipment provided as part of the services in the condition they were provided subject to fair wear and tear. For goods not returned the service fees and charges associated will continue until received by ipSCAPE or as agreed in writing by ipSCAPE in its absolute discretion.
19.2 On expiration or termination of this Agreement for any reason all outstanding invoices for Services become due and payable immediately and ipSCAPE may delete The Customer Data at any time after 7 days following termination.
19.3 If The Customer terminates any of the Services individual or together or this Agreement or if ipSCAPE terminates the Agreement under clause 18.1or 18.2, The Customer must pay any applicable Termination Charge to ipSCAPE, and such charge is due and payable immediately.
19.4 Other than as provided for in this Agreement, The Customer acknowledges that ipSCAPE will have no liability to The Customer or any other person (including any Client) arising out of the termination of this Agreement (and the licence in respect of the Application) for any reason. The Customer indemnifies ipSCAPE, its Related Companies, and their directors, officers, employees and contractors against any claim that any person (including without limitation any Client) for any loss or damage suffered in connection with the termination of any licence granted in accordance with this Agreement.
19.5 A party must notify the other party if:
a. any step is taken to enter into any arrangement between the party and its creditors (other than for the purposes of a solvent amalgamation or reorganisation);
b. the party ceases to carry on business;
c. any step is taken to appoint an administrator, a receiver, a receiver and manager, a liquidator, a provisional liquidator or other like person of part or the whole of the party’s assets, operations, business; or
d. any step is taken against the party by any government, government body or regulator for an unlawful reduction of its assets or the under its control.
20.1 ipSCAPE may at any time, subject to notice to The Customer assign the whole or any part of this agreement and may novate this Agreement to a Related Company without The Customer’s consent.
20.2 The Customer must not assign, or attempt to assign, any right arising out of this Agreement, or this Agreement, without ipSCAPE’s written approval, which approval will not be unreasonably withheld.
21.1 A party giving notice or notifying under this Agreement must do so in writing:
a. directed to the recipient’s address specified in the Order Form or as altered by any notice; and
21.2 A notice given in accordance with this clause is taken to be received:
a. if hand delivered, on delivery;
b. if sent by prepaid post, 7 days after the date of posting; or
c. if sent by email, at the time of sending.
21.3 Notice relating to Planned Outage or Emergency Outage, or to any update or variation of the Application Software may also be made through email, the Application Software notification tool, Application Software or help-centre within the Application Software
21.4 Notwithstanding clause 21.1, any notice to be provided to ipSCAPE under clause 18 must be addressed to the Chief Executive Officer and either hand delivered or sent by registered post.
22. DISPUTE RESOLUTION
22.1 If a dispute arises out of or in relation to this Agreement, either party may notify the other in writing in which case the nominated representative of each affected party must promptly attempt in good faith to resolve the dispute. In the event that the parties are unable to resolve the dispute within seven (7) days of the written notification referred to in this clause, each party must promptly refer the dispute for resolution to a senior corporate executive of that party.
22.2 If the parties are unable to resolve the dispute within fourteen (14) days following referral to the senior corporate executives of the relevant parties, the parties must agree in good faith to attempt to resolve the dispute by attending a mediation conducted in accordance with the rules of the Australian Commercial Disputes Centre. If the parties cannot agree on the appointment of a mediator, the mediator will be appointed by the president for the time being of the law society of New South Wales. The costs of the mediator will be shared equally between the parties.
22.3 If a dispute remains unresolved after mediation has been conducted in good faith then either party may use such lawful dispute resolution procedures or seek such legal and equitable remedies as it considers necessary or appropriate in its sole discretion. The parties agree that any breach or threatened breach of this Agreement will cause the other party to suffer damages for which monetary damages alone would not be an adequate remedy.
22.4 Nothing in this clause shall prevent a party from seeking urgent injunctive relief before an appropriate court.
23. NON SOLICITATION
23.1 During the Term and for a period of one (1) year after the end of the Term, each party undertakes not to engage (or seek to engage) any employee and/or contractor of the other party without the other party’s prior written consent.
23.2 If either party breaches this clause, the other party may invoice the first party by way of liquidated damages an amount equal to:
a. if an employee of the other party, one year’s salary at the employee’s most recent salary rate; or
b. if a contractor of the other party, twelve (12) times the most recent month’s invoice from the contractor (excluding GST).
23.3 This clause does not apply where:
a. a person responds to a generally published advertisement for employment; or
b. a person directly approaches a party.
24. FORCE MAJEURE
24.1 If a party (“First Party”) is partially or wholly precluded from complying with its obligations under this Agreement by a Force Majeure Event affecting the first party, then the first party’s obligation to perform in accordance with this Agreement will be suspended for the duration of the delay arising out of the Force Majeure Event.
24.2 As soon as possible after a Force Majeure Event arises, the first party must, if it has not already done so, notify the other party of the:
a. Force Majeure Event;
b. extent to which the first party is unable to perform its obligations under this Agreement; and
c. likely duration of the first party’s inability to perform.
24.3 If the Force Majeure Event affecting the first party is likely to or does continue for sixty (60) days or more, the other party may terminate this Agreement with immediate or later effect by giving the first party notice. If a party terminates this Agreement due to a Force Majeure Event, each party must bear its own costs in relation to that termination.
25.1 ipSCAPE may subcontract or partner with a provider to deliver any part of this agreement at its absolute discretion.
26. IPSCAPE EQUIPMENT
26.1 In respect of any ipSCAPE Equipment and equipment supplied and owned by a third party (“Third Party Equipment”), The Customer acknowledges and agrees that:
a. the ipSCAPE Equipment is, and shall at all times remain, the property of ipSCAPE, and The Customer acknowledges that it obtains no legal or equitable interest in the ipSCAPE Equipment greater than a mere right to use the ipSCAPE Equipment in conjunction with the provision of the Services by ipSCAPE and as directed by ipSCAPE;
b. the Third Party Equipment is, and shall at all times remain, the property of the relevant Third Party, and The Customer acknowledges that it obtains no legal or equitable interest in the Third Party Equipment;
c. it will abide by and comply with any terms and conditions relating to the use of the Third Party Equipment as required by the supplier of that Third Party Equipment (other than ipSCAPE);
d. The Customer not sell, assign, charge or create any sub-lease or otherwise dispose of or abandon the ipSCAPE Equipment or Third Party Equipment, nor allow the ipSCAPE Equipment or Third Party Equipment to become a fixture on any land or property;
e. The Customer shall not seek to register any security interest under the PPSA or otherwise charge any of the ipSCAPE Equipment or Third Party Equipment without ipSCAPE’s express consent;
f. The Customer shall not do any act or fail to do any act which has the effect of affecting any interest registered under the PPSA in respect of the ipSCAPE Equipment or Third Party Equipment;
g. The Customer shall be responsible for any damage to the ipSCAPE Equipment and Third Party Equipment while at any Site other than damage caused by the actions of ipSCAPE, its employees, agents or subcontractors;
h. The Customer undertakes to carry out all reasonable measures and precautions necessary to ensure that the ipSCAPE Equipment and Third Party Equipment whilst at a Site is effectively protected and secured against the threat of any loss;
i. The Customer shall be obliged to pay the Initial Charges notwithstanding any Loss in respect of any ipSCAPE Equipment or Third Party Equipment, unless such loss was caused by ipSCAPE and/or the third party;
j. The Customer must not allow the ipSCAPE Equipment or Third Party Equipment to be used other than as provided for under this Agreement;
k. The Customer must not, without the express written permission of ipSCAPE, allow the ipSCAPE Equipment or Third Party Equipment to be moved from the Sites at which such equipment was installed by ipSCAPEor the relevant third party; and
l. The Customer will not be granted any right to use the ipSCAPE Equipment or Third Party Equipment, or any part thereof, other than as is necessary in order to receive the benefit of the Services.
27. CHANGE MANAGEMENT
27.1 The Customer may at any time request:
a. the provision of Additional Services;
b. the removal of some or all relevant Services including those provided to particular Sites (subject to any minimum term indicated In the Order Form or otherwise) ; or
c. an upgrade to a higher grade Service and/or any other change to the Services (within the scope of services offered generally by ipSCAPE), by notifying ipSCAPE of a Change Request using the Change Request Form provided on request to The Customer, as referred to in the Order Form and setting out the details of the change required.
27.2 In respect of a request relating to clause 27.1b ipSCAPE shall implement the change in accordance with a timetable to be agreed with the Customer:
a. at no charge to The Customer if there is no applicable Minimum Term of the relevant Services as set out in the Charges; or
b. if there is a Minimum Term of the relevant Services as set out in the Charges, The Customer shall be entitled to terminate the provision of such Services subject to paying out, in full and without set-off or deduction, the remaining minimum cost of such Services for the remainder of the applicable Minimum Term,
27.3 it being acknowledged that the removal of a particular Service pursuant to this clause shall not affect any other Services purchased by the Customer and this Agreement shall continue until expiry or termination in accordance with this Agreement.
28.1 To the extent to which there is any Third Party Software which is being supplied to the Customer under this Agreement, such Third Party Software shall be supplied by ipSCAPE under the standard licence terms of such third parties and the Customer agrees to be bound by such licence terms provided that the ipSCAPE will always notify the Customer when this will occur and provide on request to the Customer a copy of the licence terms prior to acceptance. The Customer must not allow the Third Party Software to be used by the End User or another party in a way that contravenes this Agreement and must ensure that the End User complies with all the matters set out in this clause.
29.1 Any express statement of a right of a party under this Agreement is without prejudice to any other rights of that party expressly stated in this Agreement or existing at law.
29.2 This Agreement is governed by the laws of New South Wales, Australia and the parties submit to the exclusive jurisdiction of the courts exercising jurisdiction there.
29.3 Nothing in this Agreement gives a party any right to:
a. bind the other party in contract or otherwise at law;
b. pledge the credit of another party; or
c. hold itself out as a representative of the other party.
29.4 Each party must take all steps as may be reasonably required by the other party to give effect to the terms of this Agreement and transactions contemplated by this Agreement.
29.5 This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes any oral or written prior agreement, representation or understanding relating to this Agreement and nothing herein gives rise to any relationship of employment, joint venture or principal and agent.
29.6 Damages may not be a sufficient remedy for breach of this Agreement. A party is entitled to specific performance or injunctive relief for any breach or apprehended breach of this Agreement, in addition to any other remedies available at law or in equity.
29.7 This Agreement may be executed in multiple counterparts and by electronic means.
29.8 Each party acknowledges that in entering into this Agreement it has not relied on any representation or warranties about its subject matter except as provided in this Agreement.
29.9 No delay, neglect or forbearance on the part of any party in enforcing against any other party any obligation under this Agreement will operate as a waiver or in any way prejudice any right under this Agreement.
29.10 If any provision of this Agreement is held to be invalid, illegal or unenforceable, this Agreement will continue otherwise in full force and effect apart from such provision which will be taken to be deleted.
29.11 Any material variation of this Agreement must be in writing signed by each party. Addition or reduction in Services will be performed in accordance with Clause 27. However, ipSCAPE reserve the right to update these terms and conditions form time to time without notifying The Customer.
29.12 No statute, ordinance, proclamation, rule, order, regulation, moratorium or decree of any Government agency (present or future) will apply to this Agreement so as to abrogate, extinguish, impair, diminish, fetter, delay or otherwise prejudicially affect any rights, powers, remedies or discretions given or accruing to ipSCAPE under this Agreement, unless such application is mandatory by law.
29.13 This Agreement shall not be construed against a party merely because it was drafted by that party.
29.14 Each party must pay its own legal costs and expenses arising out of the preparation of and entering into this Agreement. The Customer must pay any stamp duty or other duties chargeable in respect of or arising as a result of this Agreement.
29.15 Each clause which, by its nature, ought to survive the termination of this Agreement survives including without limitation clauses 12, 13, 14, 15, 16, 17, 19, 22 and 23.