1. Definitions and interpretations
- ACMA means the Australian Communications and Media Authority.
- Act means the Telecommunications Act 1997 (Cth).
- Agreement or our Agreement means the agreement between you and us for the Services or Package, comprising the terms set out in your Application, the SFOA and our Policies.
- Application means an Application Form or such other application submitted by you and accepted by us in accordance with this SFOA.
- Application Form means an order for service, or other service application form, in our approved standard form.
- Bar or Barred means restricting the supply of one or more (where possible) or all eligible Services on a Service so that the customer is unable to acquire the restricted eligible Services.
- Business Hours means 8:30am to 5pm on a day that is not a Saturday, a Sunday or a public holiday or bank holiday in the place concerned.
- Claim includes a claim, action, loss, damage, cost or expense.
- Consumer Guarantees means the guarantees set out in Schedule 2, Part 3-2, Division 1 of the Competition and Consumer Act 2010 (Cth),as amended and replaced from time to time.
- Early Termination Fee means a fee payable if any supply under our Agreement is terminated before its Term has expired, the calculation of which is to be based on 100% of the remaining Minimum Monthly Spend for the Services from the date of termination until the end of the Term.
- Equipment means the telephone handsets and other equipment specified in your Application.
- Fee(s) means a fee payable for a Service, a Package or any part of the Package as set out in the Application or the Schedule of Fees and Charges, as applicable, and any other amount payable by you in accordance with the terms of our Agreement.
- GST has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
- LNP Authorisation means the LNP Customer Authorisation in your Application on the terms of this SFOA.
- Minimum Monthly Spend means the minimum amount you will be required to spend each month on Services or the Package as specified in your Application and as varied from time to time in accordance with this SFOA.
- Numbering Plan means the Telecommunications Numbering Plan (1997) as amended from time to time.
- Other Software means software that is not Software provided by us.
- Package means a bundled offering of any or all Services, Equipment and/or Software and as described in your Application.
- Personal Information means any information or document referred to in section 276(1) of the Act and any personal information within the meaning given in section 6 of the Privacy Act.
- Policies means each of our policies, as amended from time to time, including our:-
- Acceptable Use Policy;
- Fair Use Policy;
- Financial Hardship Policy;
- Customer Complaints Policy.
- Schedule of Fees and Charges means our standard schedule of fees and charges applicable to our products and services, including the Services and any and all components of the Package, as amended from time to time, copies of which are available on our website or by contacting our customer service team.
- Services means the Voice Services or other services specified in your Application that we supply to you under this SFOA.
- Service Levels means the minimum service levels applicable to the Services, if any, as set out in or attached to your Application and as varied from time to time;
- Site means the site described in your Application.
- Software means the software we provide or which is to be provided to you as specified in your Application, excluding Other Software.
- SFOA mean the General Terms and each Part set out in this document.
- Supplier means any carrier, telecommunications service providers, internet service providers or software or equipment suppliers that provide facilities, products or services.
- Voice Services means the telecommunications services to be provided to you under Part A and as specified in your Application.
- we, us means Linden Technology Group (Lindentech) Pty Ltd ACN 138 730 668.
- you, your means the customer specified in your Application.
- Your Service Number means the number specified in your Application to be transferred to us as part of the Services.
- The following rules apply unless the context requires otherwise.
- Headings are for convenience only and do not affect interpretation.
- The singular includes the plural and conversely.
- A gender includes all genders.
- If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
- A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
- A reference to a clause or schedule is a reference to a clause of or a schedule to this SFOA.
- A reference to an agreement or document (including a reference to this SFOA) is to the agreement or document as amended, varied, supplemented, novated, or replaced, except to the extent prohibited by this SFOA or that other agreement or document.
- A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
- A reference to dollars and $ is to Australian currency.
- Where anything is required to be done or falls due on a day which is not a Business Day, that thing shall be deemed due on the immediately following Business Day.
- The meaning of general words is not limited by specific examples introduced using “including”, “for example” or similar expressions.
2. Our agreement with you
- Subject to clause 2.2, if you (“you”) obtain or seek goods and services from us (“us”, “we”), you do so in accordance with these standard terms and conditions (referred to as our Standard Form of Agreement (“SFOA”)) and the other documents which comprise your Agreement with us.
- Where you enter into a Master Services Agreement with us for the supply of goods or services, the Master Services Agreement will apply to that supply to the exclusion of this SFOA.
- This SFOA is not legally binding on us unless and until we accept your Application Form, which we may do or refuse to do at our sole discretion. We will be deemed to have accepted your Application Form if (and only if):
- we notify you in writing that we accept your Application Form; or
- your Services are activated by us.
- Our Agreement contains the whole understanding between us, supersedes all prior representations, agreements, statements and undertakings whether verbal or in writing and includes:
- your Application;
- the Schedule of Fees and Charges;
- this SFOA; and
- our Policies.
- Unless expressly stated otherwise, to the extent of any inconsistency between any of the documents listed in clause 2.5, that inconsistency shall be resolved in the order in which each document appears in clause 2.5.
3. The Term
- The Term of our Agreement commences on the day you sign off the quote for a fixed period as specified in the quote or, in the absence fixed period within the quote, will be 3 Years.
4. Changes to our agreement
- From time to time, we may need to vary the terms of our Agreement due to circumstances beyond our control, including changes in law, security reasons and changes to the terms of supply or the functionality or nature of a supply by one of our Suppliers. We are therefore not always able to provide you with ongoing supply under our Agreement on the same terms and conditions that existed when we first commenced a supply to you.
- In addition to changes we are required to make due to circumstances beyond our control, we may elect to make changes for our own purposes during the term of our Agreement.
5. Fees and payment
- You must pay the Fees during the term of our Agreement. You will be liable to pay all Fees arising out of the use of a Service or any part of Package, whether such use is by you or any other person, whether with or without your consent.
- Before advancing any credit to you, we may require security for payment from you and/or prepayment of Fees at our discretion.
- All Fees are due and payable by the due date shown on the invoice (“Due Date”). Payment must be made by the Due Date in full by cheque, credit card, direct debit or any other method permitted by us.
- If an invoice is paid by cheque or direct debit from your bank account and that cheque or direct debit is dishonoured, cancelled or otherwise fails, we may charge and you must pay a dishonour fee which will be added to your next invoice.
- If you do not pay any monies due to us under our Agreement by the due date specified on an applicable invoice, we may impose a late payment charge or default interest calculated under our Schedule of Fees and Charges.
- If we incur costs in recovering overdue amounts from you, including (without limitation) mercantile agents’ costs, disconnection of services costs, legal costs, including service fees and search fees, we may recover these amounts from you in addition to the overdue amounts.
- Unless expressly stated otherwise, charges for the Services or the Package are exclusive of government taxes, duties (including stamp duty), imposts or levies, which will be your responsibility and will be itemised on your invoice.
- Unless expressly stated otherwise, all fees, charges and other amounts payable (and all quotes given) under or in accordance with the terms of our Agreement (including charges for Services or the Package, repair fees, late payment charges, Early Termination Fees, reconnection fees, installation costs) are exclusive of GST and you must pay to us in addition to the fees, charges and other amounts an amount equal to any GST payable on the supply of the Services or the Package. That additional amount is payable at the same time as any part of the fees, charges and other amounts for the Services or the Package is payable. We will issue a tax invoice to you for the supply of those Services or the Package at or before that time.
- You must pay all charges without any set off, counter claim or deduction. We may set off any amount payable to you against any amount payable by you to us.
6. Excessive Usage & Fraud
- We may monitor your Services for excessive or unusual usage or your level of liability for charges for such usage, but do not promise to do so. You acknowledge and agree that in addition to our rights under clause 14 we can suspend, cancel or Bar your Service upon reasonable verbal or written notice to you (including transmitting the notice to your email address) if we have reasonable grounds for believing that you represent a credit risk in relation to the Service.
- We will not be responsible for any equipment tampering or service fraud. Should you have any questions in relation to steps which may be taken to reduce the potential risk of fraud in relation to a Service or telecommunications equipment, please contact us and we will endeavour to provide such information or direct you to an appropriate source of information.
7. Period of supply
- This Agreement is for a fixed term and if neither you nor we cancel the supply at the end of the fixed term, the supply will become a non-fixed length term and we will continue to supply the Service or Package to you on a month to month basis in accordance with our Agreement. If you do not wish to continue to use the Service or Package on a month to month basis after the end of the fixed term, you must notify us by giving us 30 days’ notice in writing before the end of the fixed term that you wish to cancel the supply at the end of the fixed term.
8. Transfer your services to us
- If in providing the Services or the Package we need to change your arrangements with your current Supplier, then we will do so in accordance with this clause.
- You authorise us to sign on your behalf and in your name forms of authority to your current Supplier to transfer your telecommunications services into our name.
- You agree to give written instructions to your current Supplier to transfer your telecommunications services from your name to ours if we so request.
- You will immediately pay to your current Supplier all amounts owing to it up to the time of transfer of your telecommunications services to our name.
- If your previous Supplier credits us with any amount concerning services provided to you before the date of transfer, we will credit that amount to your account.
- If your previous Supplier raises with us a proper charge relating to a service it provided to you before the commencement of Services, you must pay your previous Supplier that amount and you indemnify us in relation to any such claims and charges.
9. Transfer your services from us to another supplier
- If you (or a Supplier acting with your authority) ask us to transfer any of the Services to another Supplier, then you remain liable to us for any amount payable in relation to the supply of the Services up to the date on which we transfer those services to another Supplier. You will immediately pay us that amount on receipt of our invoice.
- The provision of Services by us ceases on the date on which we transfer your Services to another Supplier.
10. Your obligations
- You will ensure that you always comply with all laws and obligations, including license conditions, applicable to the Services or the Package, and their use.
- You must use reasonable endeavours to ensure that you do not establish, maintain or permit a connection to another person’s network, equipment or cabling that is prohibited by or does not meet the requirements of any technical or interconnection standards made by the ACMA under the Act unless such connection is made in accordance with a connection permit issued under the Act or connection rules made under the Act where the party establishing, maintaining or permitting the connection (as the case may be) is subject to such connection rules.
- You must not use the Services, Software, any of the Equipment, or any and all components of the Package in such a manner that may:
- menace or harass any person or intentionally cause damage or injury to any person or property or incite hatred against any person;
- expose us or you to the risk of any legal or administrative action including prosecution under any law or which would bring either of us into disrepute;
- involve the publication of material that is illegal or defamatory or which may promote others to engage in such acts;
- damage our, or our Supplier’s, network or systems or cause the quality of the Services to be impaired;
- infringe any person’s intellectual property, personal (as set out in Privacy Act), or other rights; or
- be unlawful.
- You agree to comply with the Acceptable Use Policy set out on our website
11. Service numbers, CLI and IPND
- You acknowledge that:-
- The Government owns service numbers such as telephone numbers and mobile numbers (“Service Numbers”);
- The Numbering Plan sets out rules for issuing, transferring and changing Service Numbers. You and we must comply with the Numbering Plan. Information about your rights of use of your Service Number may be obtained by calling us;
- You do not own or have any legal interest or goodwill in any Service Number or PIN issued to you and:
- you are entitled to continue to use any Service Number we issue to you except in circumstances where the Number Plan allows us to recover the Service Number from you; and
- you can transfer a Service Number or PIN to another person if you get our consent first.
- If you do not Bar CLI in respect of calls made from your equipment then you agree that when a call is made or any text message sent from your equipment your Service Number may be sent automatically to the equipment of the called party.
- You agree that if a party calling your equipment has not Barred CLI in respect of a call made from their equipment then the Service Number of the calling party may be displayed on the screen of your equipment at the time the call is made.
- We, like other Suppliers, are required by law to provide your name, address, Service Number and other public number customer details to a database known as the ÍPND. This applies to all customers, including unlisted customers. However, unlisted service information is marked and controlled in the IPND so that it is only provided for an approved purpose to those approved data users such as directory information organisations or for the assistance of emergency service organisations or law enforcement agencies. You must contact us if you wish to have your IPND data altered in any way.
12. Termination, suspension and cancellation
- You acknowledge that We may terminate our Agreement or suspend, limit or cancel the provision of any Service or Package by notice in writing to you if:
- you fail to pay any amount due under our Agreement by the due date, we give you notice requiring payment of that amount (which we may not give in respect of an amount which is genuinely disputed until we have investigated the dispute) and you fail to pay that amount in full within the specified number of days after we give you that notice;
- you breach any material provision of our Agreement;
- a provisional liquidator, liquidator, receiver or any other administrator of your business or assets is appointed or you enter into any arrangement with your creditors or any class of creditors, where we are of the reasonable belief that we are unlikely to receive amounts due and payable by you;
- you cease receiving any service that we rely upon in providing the Service or Package through no fault of ours or our Suppliers;
- you are in breach of a license, permit or authorisation relating to the use of your telecommunications equipment, the Equipment, the Package, or the Services;
- we reasonably suspect you of fraud or attempted fraud;
- you vacate the premises to which we had been supplying Services or a Package to you;
- we reasonably believe that your usage of the Services is unusually high (as referred to in clause 4.2);
- On termination of our Agreement under clause 1 You must
- pay all charges incurred by you under our Agreement up to the time of termination which will become immediately due and owing upon termination; and
- pay the applicable Early Termination Fee (if any) to us.
- We may, without liability, suspend the provision of any Service or Package for a reasonable period for operational reasons.
- We may refer any debt owing to us to an external collection agent or commence legal action to recover any unpaid debt to us.
- If we suspend, limit or cancel the Services or Package for unpaid charges or any other reason, subsequent reconnection may incur a reconnection fee (except if our action resulted from our or a Supplier’s mistake or manifest error).
- The termination or expiry of terms applicable to any Equipment will not automatically terminate our Agreement for the supply of other Equipment or Services.
- Any clause of our Agreement which by its nature is intended to survive or is capable of surviving termination or expiry of this Agreement (including without limitation any exclusion or limitation of liability or indemnity in this Agreement) will survive termination or expiry of this Agreement, and the expiry or termination of a Service or Package, for any reason.
13. Our limitation of liability
- To the extent lawfully permitted, the cumulative total liability of a party in respect of all Claims in connection with this Agreement (whether based in negligence or any other tort, in contract, under statute or otherwise) will be the total sum of all Fees paid or payable by you to us under this Agreement as at the date on which the event giving rise to the liability occurs.
- To the extent permitted by law, we have no liability to you or to any other person for:
- any Claim by you or any other person for loss of profits, economic loss, loss of data or any indirect or consequential loss or damage, including any losses that may reasonably be supposed to have been in the contemplation of the parties (as at the date of the first supply of the Services) as a probable result of any act or omission, arising out of or in connection with the supply of any Services, any and all components of the Package, arising from or in connection with any breach of contract, any tort (including negligence) or any other basis;
- any loss or damage suffered by you in connection with our Agreement or the Service or Package to the extent that your or any third party’s acts or omissions or any of your own or a third party’s equipment, including any equipment or facility in your possession, ownership or control, cause or contribute to that loss or damage;
- faults or defects that arise in services not provided under our Agreement (even if they are connected, with our consent, to Services which we have arranged under our Agreement), which are due to incompatibility with the Services, Software or Purchase Equipment, or any other equipment that we or our Suppliers provide to you;
- any failure on our behalf to perform our obligations under our Agreement where that failure is due to an event occurring outside our reasonable control, including explosions, natural disasters, war or an act of God or an act of terrorism;
- acts, omissions or defaults of any third party Supplier or any person who provides goods or services directly to you for use in connection with a Service or Package. However, we will use reasonable endeavours to ensure that any third party Supplier cooperates in order to deliver their service in a timely manner, provides and maintains their service in a responsible fashion and rectifies any faults in relation to their service in a timely manner.
14. Your indemnity
- You indemnify us and will keep us, and any of our Related Bodies Corporate, indemnified against any loss, cost, expense, damage or other liability (including legal costs on a solicitor/client basis) arising out of:
- your breach of our Agreement;
- any claim or demand against us (including for negligence) by any person other than you, which arises from or is connected with our supply of the Services, any and all components of the Package, or any other equipment;
- any claim or demand (including for negligence) which you or any other person make against any of our Suppliers which arises from or is connected with our supply of the Services, any and all components of the Package, or any other equipment;
- any damage which you or your employees, agents or contractors cause to our, or our Supplier’s, network, equipment or other property;
- the access, reproduction, broadcast, use, transmission, communication or making available of any material (including data and information of any sort) by you; or
- any breach of a person’s rights or defamation of a person (or allegation of such breach or defamation) involving the use of the Services, or any and all components of the Package, or any other equipment by you.
15. Force majeure
- We are not liable for:
- any delay in installing any Service, any and all components of the Package, or any other equipment;
- any delay in correcting any fault in any Service, any and all components of the Package, or any other equipment;
- failure or incorrect operation of any Service, any and all components of the Package, or any other equipment;
- Service outages; or
- any other delay or default in complying with our Agreement, if it is caused directly or indirectly by any event beyond our reasonable control. We are not liable for failure to perform our obligations if such failure is as a result of acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalisation, government sanction, blockage, embargo, labor dispute, strike, lockout or interruption or failure of telephone service. No party is entitled to terminate this Agreement in such circumstances.
- You must not assign, transfer or otherwise deal with any of your rights or obligations under our Agreement, except with our prior written consent which will not be withheld unreasonably.
- We may upon notice, assign, transfer, sell or otherwise deal with our rights under our Agreement and/or Equipment and/or any component of the Package, and your consent is not required.
- You agree that if we need your consent to undertake certain actions, then provided we act in good faith, we may rely upon the authority of any of your employees who warrant to be authorised to provide consent on your behalf.
- Our Agreement is governed by the laws of Western Australia.
- The failure by either party to exercise any right or remedy under this SFOA in a timely manner does not constitute acceptance of the matter which gave rise to the right or remedy, nor that party’s waiver of such right or remedy.
- If a provision of this SFOA is void or voidable or unenforceable or the invalid part severed, the remainder of this SFOA will not be affected.
- You authorise us to complete any blank spaces or incomplete information in your Application and including but not limited to the serial numbers and other identification details of the Equipment, any and all components of the Package and any other equipment being provided to you.
- No reliance: You acknowledge that you enter into this Agreement entirely as a result of your own enquiries and that you do not rely on any statement, representation or promise by us or on our behalf not expressly set out in this Agreement
Part A – Voice Services
18. Application of this part
- This Part A applies in addition to the General Terms if you have requested in your Application that we supply you with Voice Services and sets out the terms and conditions on which we will supply you with Voice Services.
- Voice Services consist of telecommunications services specified in your Application, including Local Calls, National Calls, International Calls, Fixed to Mobile Calls, Data Calls, 13 Calls, 1300 Calls and 1800 Calls, ToIP, VoIP, and other call types specified from time to time.
19. Service number portability
- Subject to clause 11, provided that Your Service Number is capable of being transferred, you may transfer it from your current Supplier to us if Your Service Number is declared portable under the Numbering Plan and no exemption has been granted by the ACMA.
- Subject to clause 11, by signing the Service Number Portability Customer Authorisation (“LNP Authorisation”) which forms part of your Application, you acknowledge and agree:
- to your current Supplier transferring to us Your Service Number;
- that we are only transferring Your Service Number not your existing voice service – this means you may lose value added services and other features provided by your current Supplier;
- that by transferring Your Service Number, the service and/or any features associated with that Service Number may be disconnected by your current Supplier and result in finalisation of your account for those services;
- that there may be costs and obligations associated with transferring Your Service Number away from your current Supplier. You may have an ongoing contract with your current Supplier which requires the payment of cancellation and/or termination fees to your current Supplier if you transfer to us;
- that your current Supplier may or may not disconnect your existing service and/or value added services;
- that we do not warrant that we can transfer Your Service Number from your current Supplier. Your current Supplier may reject the request to transfer Your Service Number, including if the information you provide is incorrect or does not match the data held by your current Supplier. In this case, we reserve the right and you authorise us to correct the information and resubmit the request to transfer Your Service Number or dispute the rejection with your current Supplier;
- that if Your Service Number cannot be transferred to us then you will accept a new service number from us;
- that your authorisation to transfer Your Service Number to the Voice Services is valid for 90 days from the date of the LNP Authorisation;
- that in the event of a withdrawal or reversal of Your Service Number to your current Supplier, we:
- are not responsible for any period of outage of the service or features or your current service or any value added service provided by your current Supplier;
- do not warrant that Your Service Number will be transferred to us within any specified timeframe; and
- to the extent permitted by law, are not liable to you or any person claiming through you for any damage, loss, costs or expenses or other liability in contract, tort, or otherwise direct or indirect, for or in relation to the transfer of Your Service Number(s), withdrawal or reversal, including a negligent act or omission by us;
- that if you wish to transfer Your Service Number from us to another Supplier then you must contact that other Supplier to implement the transfer; and
- that we reserve the right to charge for transferring Your Service Number to and from us.
20. Provision of voice services
- We will provide the Voice Services to you, as specified in your Application, upon the later of:-
- when your accounts have been transferred from your current Supplier to us;
- completion of installation of any necessary equipment;
- completion of any other arrangements with another Supplier for the provision of the Voice Services; and
- when your account with us has been established.
- We will provide the required Voice Services subject to availability, geographical and technical capability. There may also be times when availability is limited due to maintenance being performed.
- We are not obliged to provide you with Voice Services where capacity, geography, or technical capability, affect the application or installation of the Service to your Site or other premises.
- We do not warrant that the Voice Services will be free of interruption, delays, or fault.
21. Voice service charges
- The charges applicable to the Voice Services are will be as specified in the Schedule of Fees and Charges and your Application.
- You acknowledge that we may vary any of the charges applicable to the Voice Services in accordance with the General Terms.
22. Fault reporting
- You should notify any faults regarding your Voice Services to our faults team. Their contact details are located on our invoices and on our website.
- We are responsible for correcting faults in supplying the Voice Services. You must provide all necessary assistance to enable us to locate and repair any fault which is our responsibility.
- We are not responsible for any fault which is on your side of the network termination point, except in relation to Purchase Equipment, or Other Equipment that we are maintaining.
- We are not responsible for any fault which is within the network of a Supplier. However, we will notify that Supplier of the fault and request that the fault be corrected promptly.
23. Service levels
- We agree to use reasonable endeavours to meet any Service Levels applicable to the Voice Services.
- We may vary Service Levels by notice in writing to you from time to time.
Our general SLA is published on our website.