- 01. Definitions
1.1 The following definitions apply:
(a) Agreement means the agreement for the provision of the Services by VTelecom to you comprising this document, and the Application Form.
(b) Carrier means a telecommunications carrier licensed under the Telecommunications Act 1997 (Cth) as a general carrier or a public mobile telecommunications carrier.
(c) Charges means the charges calculated for your usages of the Services at the rates specified in Section 3 (Pricing) of your Application Form, as amended from time to time in accordance with Clause 4.4 of this Agreement.
(d) Commencement Date means the date you signed your Application Form or purchased your service online or over the phone.
(e) Current Service Provider means a Carrier, telecommunications service provider, or equipment supplier who supplies telecommunications services or equipment to you at the time that you enter into this Agreement.
(f) Services means the Services detailed in Section 2 (Service Details) of your Application Form.
(g) Supplier means a Carrier or other third party upon whom VTelecom relies in order to provide the Services to you (whether or not VTelecom has a contractual relationship with that party).
(h) Termination Date means the date determined in accordance with Clause 7.
- 02. Obligations of the parties
2.1 VTelecom shall:
(a) provide the Services to you in accordance with its then current practices and procedures, including any practices and procedures stipulated by its Suppliers. VTelecom may from time to time vary its practices and procedures and the manner in which it provides the Services, including selection of the Carrier.
(b) provide the Services to the extent, and to the standard and in accordance with the terms and conditions upon which its Suppliers provide those services to VTelecom. Accordingly, VTelecom provides no warranty, makes no representation and is not liable for the quality, reliability, timeliness or availability of the Services to the extent that it relies on Suppliers in order to provide these Services to you
(a) warrant that your use of the Services will not breach any law or regulation, or infringe any person’s rights, or otherwise cause loss, liability, or expense to VTelecom or any of its Suppliers;
(b) must obtain and comply with all permits, licences, laws, regulation and by-laws applicable to your use of the Services;
(c) must comply with all terms and conditions of this Agreement, including without limitation, payment of all Charges on or before the due date for payment;
(d) authorise VTelecom to conduct a credit assessment in accordance with clause 3 of this Agreement; and
(e) authorise VTelecom to provide to any of its Suppliers, or any of the related bodies corporate (as that term is defined in the Corporations Act 2001) of VTelecom or any of its Suppliers, such information about you and your Services as the Supplier or related body corporate requires in order for VTelecom to provide the Services to you under this Agreement.
- 03. Credit check
3.1 Prior to connection of your Services, VTelecom will conduct a credit assessment. You agree to provide to VTelecom and authorise VTelecom to obtain from third parties, all information necessary to complete this assessment, including but not limited to:
(a) a credit report about your credit history from a credit reporting agency;
(b) information from any credit provider named in a credit report in relation to your credit rating including and without limitation, any information about your credit worthiness, credit history or credit capacity that credit providers are allowed to give or receive under the Privacy Act; and
(c) information from third parties concerning your financial standing and, for this purpose, you have authorised and permitted such third parties to supply such information regardless of any confidentiality or privilege, which applies, as between you and the third party, to the information sought.
- 04. Charges
4.1 You agree to pay to VTelecom all Charges for the Services, from the Commencement Date up to and including the Termination Date, irrespective of whether those charges are invoiced prior to, on or after the Termination Date.
4.2 VTelecom and its Suppliers shall review the Charges on a regular basis and will provide you with not less than 30 days written notice of any increase to those Charges. The altered Charges shall apply to all Services delivered on and after the applicable date that the notice period expires.
- 05. Payment
5.1 Payment of your VTelecom account balance is due monthly in accordance with your payment plan, in the currency in which billed, and must be made by the credit or debit card designated by you for VTelecom use and transactions or through such other payment methods as VTelecom may provide from time to time. Each time you use VTelecom Services, or allow or cause VTelecom Services to be used, you agree and reaffirm that VTelecom is authorized to charge your designated card or obtain payment for the Services through such other means as are legally available to VTelecom.
5.2 If your VTelecom account is a qualified business account and is approved by VTelecom for corporate billing, charges will be accumulated, identified by Customer account number and invoiced on a monthly basis. Payment of an account must be made by the date specified in the account (“Due Date”).
5.3 VTelecom may include in any account rendered to the Customer any charges for services provided to the Customer by any carrier that has been rendered to VTelecom.
5.4 If you do not pay the invoice by the Due Date we may charge a flat rate of $20 per month per account or interest at the rate of 1.5% per month or part thereof on the outstanding amount of the invoice, whichever is the greater, and suspend any or all of your Services pending payment of outstanding amounts on the invoice
- 06. Suspension of Services
6.1 VTelecom or one or more of its Suppliers may at any time unilaterally bar or suspend one or more of your Services if:
(a) you fail to pay an invoice by the due date;
(b) VTelecom has a right to terminate this Agreement pursuant to clause 9.3;
(c) instructed to do so by a governmental, regulatory or law enforcement body;
(d) you fail to obtain and/or comply with any permits, licences or other authorisations that are required for the use of the Services; or
(e) you fail to comply with any law or regulation applicable to your use of the Services, including, but not limited to, data protection and telecommunications laws and regulations.
- 08. Personal information
8.2 Without limiting the foregoing, you agree that VTelecom may disclose any personal information referred to in clause 8.1 to its Suppliers, partners and each of its and their respective related bodies corporate to the extent necessary to enable VTelecom to provide the Services to you in accordance with the terms of this Agreement.
- 09. Exclusion of Warranties
9.1 Nothing in this Agreement shall exclude or limit the warranties or liability of VTelecom or its related bodies corporate for losses which may not be lawfully excluded or limited by applicable law. In the event that an exclusion or limitation of liability is illegal, invalid or unenforceable in your jurisdiction then clause 13.5 (severability) shall apply.
9.2 VTelecom expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement of third party rights, or warranties arising by statue or otherwise in law or from a course of dealing or usage of trade. In particular, but without limitation, VTelecom and its related bodies corporate do not represent or warrant that:
(a) your use of the Services will meet your requirements;
(b) your use of the Services will be uninterrupted, timely, secure, failsafe or free from error;
(c) defects in the operation of the Services will be corrected;
(d) the Suppliers will continue to supply the Services to VTelecom on the terms and conditions set out in this Agreement.
9.3 No advice, information or representation, whether oral or written, obtained by you from VTelecom or any of its related bodies corporate or any other person shall create any warranty not expressly stated in this Agreement.
9.4 The liability of VTelecom and its related bodies corporate for any breach of any condition, warranty or other obligation which is implied into this Agreement by any applicable legislation for the time being in force which cannot be excluded by agreement, shall not exceed, at VTelecom’s option: (a) in the case of the supply of goods: (i) the replacement of the goods or the supply of equivalent goods; or (ii) the repair of the goods; or (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; or (b) in the case of the supply of services: (i) the supply of the services again; or (ii) the payment of the cost of having the services supplied again.
- 10. Limitation of Liability
10.1 Under no circumstances shall VTelecom or any of its related bodies corporate or Suppliers be liable to you or any third party for any indirect, incidental, consequential, special, exemplary, or punitive damages or lost profit, revenue, goodwill, anticipated savings or lost or corrupt data, information or other content, or damage to property arising from or related to the Services, whether such claim is based on warranty, contract, tort (including negligence), statute or otherwise, (even if VTelecom or any of its related bodies corporate or Suppliers has been advised of or should have been aware of the possibility of such damages).
10.2 Without limiting the foregoing, the total aggregate liability of VTelecom and its related bodies corporate and Suppliers arising from or related to this Agreement, whether such claim is based on warranty, contract, tort (including negligence), statute or otherwise (even if VTelecom or any of its related bodies corporate or Suppliers has been advised of or should have been aware of the possibility of such damages) shall not exceed the lesser of the amount paid by you to VTelecom for the Services in the six months prior to the date on which the alleged loss or damage was suffered by you or any person claiming through you and AUD$5,000.
10.3 The foregoing limitations of liability shall apply whether the damages arise from or in connection with use or misuse of or reliance on the Services, from inability to use the Services or from the unavailability, failure, delay, interruption, degradation, suspension, deactivation or termination of the Services (including any damages incurred by third parties).
10.4 You agree that VTelecom and its related bodies corporate and Suppliers shall not be liable to you or to any person claiming through you for any claim which is brought against VTelecom or any of its related bodies corporate or Suppliers later than 6 months from the date on which the alleged loss or damage was suffered by you or any person claiming through you.
10.5 Nothing in this Agreement is intended to exclude or limit the application of any provision of any statute (including the Australian Consumer Law and the Telecommunications Act) where to do so would:
(a) contravene that statute; or
(b) cause any part of this clause to be void.
- 11. Force Majeure
11.1 For the purposes of this Agreement, a Force Majeure event means any act, event, cause or circumstance beyond the reasonable control of a party and without fault or negligence of that party, including but not limited to, fire, storm, flood, earthquake, adverse weather, accident, war, labour dispute, materials or labour shortage other than its own staff or staff under its control, power shortage, externally caused transmission or satellite launch failure or other satellite failure, delay or malfunction, breakdown or unavailability of third party plan, machinery or equipment or suspension or termination of a Supplier contract which is relevant to the provision of the Services, whether or not VTelecom is a party to that contract.
11.2 VTelecom will not be liable to you in any way by reason of any delays or failures by it to perform its obligations under this Agreement, where such delay or failure is caused by a Force Majeure event.
11.3 Where such delay or failure arising from a Force Majeure event exceeds 30 days, VTelecom may immediately terminate this Agreement by providing written notice to you.
- 12. Notices
Any notice required to be given under this Agreement must be in writing in the English language
addressed to the physical address or email address most recently notified by the recipient to the sender and will be taken to have been given or made, in the case of ordinary mail, 3 business days from the date on which it is sent or, in the case of email, on the date on which it is received in the recipient’s email account, but if received on a day which is not a business day it will be taken to have been received on the next business day; for the purposes of this clause, “business day” means a day on which banks are open for business in Sydney Australia.
- 13. Assignment and sub-contracting
VTelecom may with prior written notification to you, assign or novate its rights and obligations under this Agreement or any part of it or any money due under it to any of its related bodies corporate, Suppliers or Suppliers’ related bodies corporate, or with your consent, which shall not be unreasonably withheld, to any other third party. VTelecom may discharge its obligations under this Agreement using agents or sub-contractors but shall remain liable for their performance under this Agreement. Your rights and obligations under this Agreement are personal and cannot be transferred by operation of law.
- 14. General Provisions
14.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New South Wales, Australia, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. You agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14.2 Entire Agreement. This Agreement, including your Application Form and any documents referred to in it (including those via a weblink) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Except as expressly provided in this Agreement, any amendment of this Agreement will be effective only if in writing and signed by both parties.
14.3 Survival. In the event of any termination, expiration, or cancellation, all terms of this Agreement which are capable of survival shall survive.
14.4 Waiver. A failure by a party to exercise, or a delay in exercising, any right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies which that party may otherwise have and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
14.5 Severability. Any provision of this Agreement which is illegal, invalid or unenforceable in any jurisdiction is to be read down so as to be legal, valid and enforceable if possible, or if that is not possible, will be ineffective in that jurisdiction only to the extent of the illegality, invalidity or unenforceability, without affecting the remaining provisions of this Agreement or the legality, validity or enforceability of that provision in any other jurisdiction.
14.6 Dispute Resolution. All disputes arising out of this Agreement will, unless VTelecom, in its absolute discretion, elects otherwise, be subject to the exclusive jurisdiction of the state and federal courts serving New South Wales, Australia, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
14.7 Costs of enforcement. You agree to reimburse VTelecom for any costs or fees related to its enforcement of this Agreement (including reasonable third party fees and disbursements in relation to the defence of any third party claims).
14.8 Benefit of the Agreement. This Agreement is binding upon and shall enure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal representatives and permitted assigns. VTelecom holds all rights under this Agreement which are referable to its related bodies corporate, its Suppliers and its Suppliers’ related bodies corporate on trust for those entities and may enforce any of those rights on behalf of any of those entities.
- 7. Term and Termination
7.1 This Agreement commences on the Commencement Date and continues until terminated in accordance with this Clause 7.
7.2 Subject to Clause 7.3, either party may terminate this Agreement at any time by providing the other party with 30 calendar days prior written notice. This Agreement will terminate on expiry of the 30 calendar days’ notice.
7.3 If your agreement with VTelecom specifies a fixed contract period, any termination notice given by you pursuant to Clause 7.2 shall not expire until the last day of the fixed contract period. Notwithstanding the foregoing, if you wish to terminate this Agreement prior to expiry of the fixed contract period then you may do so by providing 30 days prior written to VTelecom together with payment of an early termination fee equal to $250 plus the average monthly invoice total multiplied by the number of months from your last invoice until the last day of the fixed contract period plus all Charges specified in Clause 7.6.
7.4 In addition to any other rights expressly set out in this Agreement, either party may terminate this Agreement:
(a) if the other party commits a breach of its obligations and, if remediable, fails to remedy the breach within 14 days after receiving written notice from the other party requiring it to remedy the breach; or
(b) immediately if the other party becomes insolvent, bankrupt or if its financial position is such that, within the framework of applicable national law, legal action leading toward appointment of receiver or administrator, winding up, bankruptcy or dissolution may be or has been taken.
7.5 Notwithstanding any other provision of this Agreement, VTelecom may terminate this Agreement (or where appropriate in respect of any Service or Services):
(a) if VTelecom ceases or intends to cease to operate the Services for any reason, by giving you at 60 days prior written notice; or
(b) immediately upon written notice if, as the result of an act or omission of one or more of its Suppliers, VTelecom is unable to continue to supply the Services to you to the standard of service it provides in the normal course of its business.
7.6 In the event of termination, all Charges due and payable in accordance with Clause 4, up to and including the Termination Date, shall become immediately due and payable by you together with any interest accrued in accordance with the terms of this Agreement.