Terms and Conditions
Terms and Conditions
1 Phoneword and Licensed Number
(a) You may use the Licensed Number and the Phoneword during the Term in accordance with this agreement (including any special terms on the cover page).
(b) You may only use the Phoneword (i) as a telephone number and not as a trademark, (ii) in the form set out on the cover page and (iii) with your company name, business name or house brand, which must not incorporate the Phoneword or any similar name.
1.2 Protection of our rights
You agree that (i) you have no rights to any trademark that incorporates the Phoneword, (ii) we may license the Phoneword to others after the Term, (iii) third parties may own or use names, trademarks, brands or telephone numbers similar to the Phoneword, (iv) you must not challenge our rights or future licensee’s rights in relation to the Phoneword or any trademark, company name, business name, domain name or other trading name that incorporates the Phoneword, (v) you must not register a domain name, company name, business name or other trading name that incorporates the Phoneword and (vi) you must notify us of any third party using any trademark, company name, business name, domain name or other trading name that incorporates the Phoneword.
2 Telecommunication services
(a) You are responsible for acquiring the telecommunication service to be used with the Licensed Number and must tell us of the details of the service within 14 days of connection.
(b) You must connect the telecommunication service within 35 days of this agreement becoming effective or we may terminate this agreement and license the Phoneword to another party.
(c) You may change your telecommunication service at any time but must provide us with updated details of the new service within 14 days.
3 Fees and payment
You must pay us the Fees monthly in advance.
3.2 Late payment
If you do not pay the Fees when due, we can charge you a $25 administrative fee and interest at the Reserve Bank of Australia’s official cash rate plus 5% until it is paid in full.
You must pay us (i) any legal costs incurred by us on a solicitor/client basis, (ii) any court or service fees incurred by us and (iii) any fees paid to a debt collector or mercantile agent, in respect of any action or proceedings undertaken in relation to recovering monies you owe us.
3.4 GST and taxes
If we must pay GST on a supply made in connection with this agreement, then you must pay us an additional amount equal to that GST. We will provide you with a tax invoice. You must pay to us any taxes levied on or in relation to the Licensed Number or Phoneword.
4 Warranties and indemnities
4.1 Our warranties
(a) We warrant that we have the right to license the Licensed Number. You acknowledge that we may have obtained that right from a third party.
(b) We do not make any representations or warranties in relation to the Licensed Number or Phoneword other than the warranty in clause 4.1(a).
(c) It is your responsibility to assess whether the Licensed Number and Phoneword meet the requirements of your business and to develop and implement marketing that complements the Phoneword.
(d) You may have additional rights under the Competition and Consumer Act 2010 (Cth). Nothing in this agreement excludes, restricts or modifies rights that a party may have under any legislation that cannot be lawfully excluded, restricted or modified.
4.2 Your warranties
(a) You warrant that your use of the Phoneword (i) will comply with all laws, industry codes and regulations and (ii) will not infringe the rights of any person or be misleading or deceptive or constitute passing off.
(b) If a third party claims that your use of the Phoneword infringes their rights or is misleading or deceptive or constitutes passing off, it is your responsibility to obtain legal advice and resolve the matter with the third party.
(c) You indemnify us against any Loss suffered or incurred by us in connection with any breach by you of this agreement, including the above warranties.
5 Limitation of liability
(a) Subject to clause 5(b), our aggregate liability for any Loss suffered by you during any year (from 1 July to 30 June) of the Term is limited to the total amount of Fees paid by you to us in that year.
(b) Our liability for a breach of a consumer guarantee under the Competition and Consumer Act 2010 (Cth) is limited to, at our option, suppling equivalent goods or paying the cost of supplying equivalent goods or resupplying the services or paying the cost of resupplying the services (as applicable).
6 Term and termination
6.1 Term and auto-renewal
This agreement commences when signed by both parties and continues for the Initial Term. Thereafter it automatically renews for 12-month terms unless you give us written notice of non-renewal at least 30 days before the end of the Initial Term or a subsequent 12-month term. Where you are a Small Business at the commencement of the Initial Term, or you otherwise notify us that you have become a Small Business, we will provide you with at least 30 days prior written notice of each renewal date of this agreement.
(a) We may terminate this agreement by written notice to you (i) if you fail to remedy a material breach of this agreement within 30 days of being asked in writing to do so, (ii) if you become Insolvent or (iii) if a Regulatory Event occurs. Breach of clause 1.2(vi) is not a material breach.
(b) You may terminate this agreement (i) by written notice if we fail to remedy a material breach of this agreement within 30 days of being asked in writing to do so, or (ii) after the Initial Term, by giving 3 months’ written notice.
6.3 Cancellation fee
If this agreement is terminated other than under clause 6.2(b)(i), we may charge you a cancellation fee equal to the Fees for the Licensed Number for the remainder of the Term, less a discount of (i) 2.5% if less than 12 months remain, (ii) 5.0% if 12 to 24 months (inclusive) remain or (iii) 7.5% if more than 24 months remain provided that, if termination occurs after the Initial Term, the above fee must not exceed 3 months’ Fees. The above fee is a genuine pre-estimate of the loss we will incur from early termination. No cancellation fee is payable where you terminate in accordance with this clause 6.2(b)(ii).
6.4 Consequences of termination or expiration
(a) Upon termination or expiry of this agreement, you must (i) cease using the Licensed Number and the Phoneword, (ii) not use ‘1300’, ‘1800’ or ‘13’ as part of a trademark, company name, business name or domain name, (iii) transfer to us or cancel, at our option, any trademark application or registration, domain name, company name, or business name that incorporates the Phoneword, (iv) take reasonable steps to inform your customers and other interested persons that you can no longer be contacted using the Licensed Number or Phoneword and (v) execute all documents and do all things to give effect to the above.
(b) Clauses 1.2, 3, 4.2, 5, 6.3, 6.4 and 7 (other than 7(d)) survive termination or expiration of this agreement.
(a) We and You agree not to disclose information provided by the other under this agreement that is not publicly available (including the terms of this agreement) except to its officers, employees, advisers and auditors or as required by any law or stock exchange.
(b) We may subcontract performance of this agreement.
(c) You may not assign, transfer or encumber your rights or obligations under this agreement other than to a person who is purchasing your business.
(d) You may sub-license your rights under this agreement provided (i) the sub-licence is consistent with this agreement, does not permit further sub-licensing and terminates on termination or expiry of this agreement and (ii) You indemnify us against any Loss suffered by us in connection with the sub-licensee’s use of the Phoneword.
(e) The indemnities in this agreement are independent and continuing obligations and continue after this agreement ends. It is not necessary to incur expense or make payment before enforcing a right of indemnity.
(f) We may use any of your logo(s) and image(s) for marketing and advertising activities.
(g) This agreement is governed by the law of Victoria, Australia. Each party submits to the exclusive jurisdiction of the courts of Victoria, Australia.
8 Definitions and interpretation
Unless the contrary intention appears:
Fees means the licence fee specified on the cover page.
Initial Term means the period specified on the cover page.
Intellectual Property Rights means all intellectual property rights including current and future registered and unregistered rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
A person is Insolvent if (i) it is subject to any form of external administration; (ii) fails to comply with a statutory demand; (iii) is unable to pay its debts when they fall due; or (iv) something similar to any of (i) to (iii) happens.
Licensed Number means the number on the cover page.
Loss means any loss, liability, cost or expense (including legal expenses on a full indemnity basis).
Phoneword means the Licensed Number and any Phoneword specified on the cover page of this agreement and any name which incorporates, is derived from, or is similar to, that phoneword.
Regulatory Event means an event that, in our opinion (acting reasonably), prevents us from licensing the Licensed Number to you.
Small Business means a business employing less than 20 people (including casual employees employed on a regular and systematic basis).
Term means the Initial Term and any renewals under clause 6.1.
Unless the contrary intention appears, a reference in this agreement to (i) a document includes any variation or replacement of it, (ii) a statute or other law includes all instruments under it and all amendments, re-enactments or replacements of any of them, (iii) the singular includes the plural and vice versa, (iv) a person includes an individual, a body corporate, a partnership, an unincorporated association or a government agency, (v) a “person” includes that person’s executors, administrators, successors, substitutes and assigns and (vi) the words “include” or “including” are not used as words of limitation.