Terms and Conditions of Service

1. Definitions and Interpretation

1.1 In this Agreement, unless the contrary intention appears, words that are capitalised are defined and have the meaning described in section 1.1 of the Schedule.
1.2 This Agreement is to be interpreted according to section 1.2 of the Schedule.

2. Term

2.1 This Agreement commences on the Commencement Date and continues in force until the conclusion of the Minimum Term, unless otherwise extended or terminated in accordance with this Agreement (the Term).
2.2 Without prejudice to clause 16, on the expiration of the Minimum Term (and each subsequent extension period), this Agreement will automatically extend for consecutive periods of 12 months (each period being an Extension Period) on the same terms and conditions (except as to Fees), unless either Party has given the other Party a notice of its intention to terminate this Agreement at least 30 days prior to the commencement of the relevant Extension Period.

3. Services

3.1 Chorus Call will provide the Services from the Commencement Date in accordance with this Agreement.
3.2 Chorus Call will use all reasonable endeavours to provide the Services and perform its obligations under this Agreement:
(a) in a professional manner and with due care and skill; and
(b) in accordance with all applicable Laws.
3.3 Chorus Call must, in providing the Services, meet or exceed the Service Levels. If Chorus Call fails to meet or exceed any applicable Service Level, Chorus Call will:
(a) use its reasonable endeavours to restore the Services to the Service Levels; and
(b) pay Service Credits to the Customer in accordance with the Agreement Particulars.
3.4 The Customer is responsible at all times for ensuring that the Customer Technology meets the Minimum Requirements.

4. Service Credits

4.1 The Customer acknowledges that, when applicable, the payment of Service Credits by Chorus Call under clause 3.3 are the Customer's sole and exclusive remedy in respect of the failure to meet the relevant Service Level.
4.2 Service Credits will be paid to the Customer as a credit against any sum of money which may subsequently be due to Chorus Call under this Agreement.
4.3 Service Credits are only payable for the period during which Chorus Call fails to perform the relevant Service in accordance with the Service Levels of this Agreement.
4.4 Service Credits are not payable with respect to any failures to perform arising from an act or omission of the Customer in breach of this Agreement or which adversely affects Chorus Call's ability to perform this Agreement.
4.5 A dispute between the Parties as to whether Chorus Call's failure to perform is caused by the Customer's act or omission is to be resolved by good faith negotiation between a senior representative of each Party.

5. Restrictions on use of the Services

5.1 The Customer and Users must not use the Services or Software to transmit any content or information which:
(a) is in violation of any Law including the SPAM Act 2003 (Cth);
(b) harasses, threatens or defames any person;
(c) includes sexually explicit images of minors or which is offensive or harmful to minors;
(d) includes any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene or hateful material, including but not limited to material based on a person's race, national origin, ethnicity, religion, gender, sexual orientation, disablement or other such affiliation;
(e) utilises a false name or identity or a name or identity that the Customer is not entitled or authorised to use; and
(f) contains any virus, worm, Trojan horse, time bomb, cancelbot, or other destructive program.
(g) infringes the IPR of any third party; or
(h) distributes software or other material protected by the IPR of any third party in violation of any licence agreement.

6. Software Licence

6.1 Subject to the terms of this Agreement and in addition to the provisions of clause 11 of this Agreement, Chorus Call grants to the Customer a personal, non-transferable, non-exclusive license to install the Software on the Customer Technology, and to use the Software for the purpose of using the Services provided by Chorus Call for the duration of the Term and any applicable Extension Period.
6.2 The Software contains IPR, trade secrets, and other proprietary materials of Chorus Call and its licensors. The Customer must not, or enable others to, copy, decompile, disassemble, reverse engineer or attempt to derive the source code of, or create derivative works of, or an installer for, the Software or any part thereof (except as expressly permitted by this Agreement, by applicable Law (including the Copyright Act), or by licensing terms governing the use of open-sourced components included with the Software).
6.3 Certain components of the Software are not licensed under the terms of this Agreement, but are instead licensed under the terms of applicable open source licences, including but not limited to the BSD Licence, Apache Licence or the Lesser GNU General Public Licence (Open Source Components). The Customer's use of each Open Source Component is subject to the terms of each applicable licence.
6.4 The Customer may make one copy of the Software for backup purposes, solely for use with the Services, provided that any copies must include all copyright or other proprietary notices contained on the original.
6.5 The Software must not be used in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control systems, medical devices or other equipment in which the failure of the Software could lead to death, personal injury, or severe physical or environmental damage.
6.6 If the Customer provides Chorus Call with any Feedback, the Customer grants Chorus Call and its licensors, without charge, the fully paid-up, irrevocable right and licence to use, share, commercialise and otherwise fully exercise and exploit the Feedback and all related rights (and to allow others to do so) in any way and for any purpose. These rights survive termination of this Agreement in perpetuity.

7. Account Information

7.1 The Customer must ensure that
(a) each User creates a separate User Account; and
(b) each User Account is used only by the User that created it and by no other person.
7.2 If a User Account is used by other persons in breach of clause 7.1, the Customer will be deemed to have created additional User Accounts (Additional User Accounts), the number of which will be equal to the number of persons who have used the relevant User Account in breach of clause 7.1. The Additional User Accounts will be billed consistently with the pricing methodology used to calculate the Fees, and the corresponding charges will become due and payable by the Customer as a debt, unless waived by Chorus Call acting reasonably in its sole discretion.
7.3 The Customer is entirely responsible for any and all activities conducted through its User Accounts. The Customer must notify Chorus Call immediately of any unauthorised use of the Customer's passwords or any User Accounts, or of any other breach of security. The Customer must not:
(a) select or use a user account of another person; or
(b) use a name or picture which violates any third Party's trademark, copyright, or other proprietary right, which is or may be illegal, which may cause confusion, or which Chorus Call or its licensors deems in its sole discretion to be vulgar or otherwise offensive.
7.4 Chorus Call reserves the right to delete any vulgar or otherwise offensive User Account or picture, or to require such deletion.
7.5 The Customer is responsible for maintaining the confidentiality of its passwords and will be liable for all liabilities resulting from any deliberate or inadvertent disclosure of its passwords. At no time should the Customer respond to an online request for a password, except when prompted by the ClearSea client software.

8. Non-exclusivity

The Customer acknowledges that Chorus Call does not provide the Services exclusively to the Customer, and may provide services the same as or similar to the Services to other customers.

9. Relief for Chorus Call

9.1 If the Customer breaches any of its obligations under this Agreement, or the Customer (or a third Party with contractual or other obligations to the Customer) does or fails to do any act, and such breach or act or omission adversely affects Chorus Call’s ability to comply with any of its obligations under this Agreement (including obligations as to the time or level of Chorus Call’s performance) then Chorus Call is relieved from the performance of its obligations to the extent and duration by which they are affected by the act or omission or breach until the act or omission or breach is remedied or rectified to the satisfaction of Chorus Call. The foregoing is without prejudice to any other right or remedy available to Chorus Call under this Agreement or at Law in relation to any such act or omission or breach.
9.2 If it is necessary for Chorus Call to perform additional work, or to repeat work or to incur any costs and expenses as a result of the act or omission or breach of the Customer, Chorus Call can charge the Customer for such additional or repeated work at the rates set out in this Agreement or, if none are set out, at reasonable rates, and for any such costs and expenses actually incurred by Chorus Call.

10. Payment and taxation

10.1 The Fees must be paid in accordance with this clause 10 .
10.2 Chorus Call will invoice the Customer:
(a) for the Fees calculated in accordance with the Agreement Particulars; and
(b) on a monthly basis in advance.
10.3 The Customer must pay all invoices issued to it within 14 days of receipt.
10.4 If the Customer does not pay in accordance with clause 10.3 any amount set out in an invoice:
(a) Chorus Call will be entitled to claim interest calculated as the Bank Bill Swap reference Rate (Reuters Page BBSW ) + 5% per annum on the amount, applied with effect from the day following the date on which the amount was due until the date on which payment of the amount is made; and
(b) Chorus Call will be relieved of its obligations to provide further Services until any late payment (plus interest) is received in full.
10.5 If GST is payable, or notionally payable, on a supply made under or in connection with this Agreement, the Party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable, or notionally payable, on that supply (the GST Amount). Subject to the prior receipt of a tax invoice, the GST Amount is payable at the same time that the other consideration for the supply is provided. This clause does not apply to the extent that the consideration for the supply is expressly stated to be GST inclusive or the supply is subject to reverse charge.
10.6 Where any indemnity, reimbursement or similar payment under this Agreement is based on any cost, expense or other liability, it shall be reduced by any input tax credit entitlement, or notional input tax credit entitlement, in relation to the relevant cost, expense or other liability.
10.7 If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST Amount will be recalculated to reflect that adjustment and an appropriate payment will be made between the Parties.
10.8 Unless the context requires otherwise, words and phrases used in this clause that have a specific meaning in the GST law (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) shall have the same meaning in this clause.

11. Intellectual Property Rights

11.1 The Parties acknowledge that the IPR in all Existing Material is owned by Chorus Call or licensed to Chorus Call by third Parties, and nothing in this clause assigns any IPR in the Existing Material.
11.2 Chorus Call grants to the Customer a personal, non-transferable and non-exclusive licence to use the Existing Material during the Term for the purpose of and only to the extent required to make use of the Services in accordance with the terms of this Agreement.
11.3 The Customer must not:
(a) use Existing Material or any part thereof, accept as authorised under this clause 11;
(b) sell, lease, transfer, assign, sublicence, licence or otherwise part with possession of the Existing Material or any part thereof except as expressly permitted in this Agreement;
(c) create or allow to be created or subsist any lien, charge, mortgage or encumbrance over any Existing Material or part thereof;
(d) attempt to disassemble, decompile or otherwise reverse engineer any software comprised in the Existing Material except as expressly permitted under this Agreement or by the Copyright Act;
(e) alter, customise, modify or create derivative works of any software comprised in the Existing Material , except as expressly permitted under this Agreement; or
(f) remove, obliterate or alter any proprietary notice on any software comprised in the Existing Material.
11.4 The Parties acknowledge that the IPR in all Customer Material is owned by the Customer or licensed to the Customer by third Parties, and nothing in this clause 11 assigns any IPR in the Customer Material.
11.5 The Customer grants to Chorus Call a non-exclusive, transferable, irrevocable, world-wide and royalty-fee licence (including the right to sub-licence) to use, reproduce, alter, customise, modify, create derivative works of, disassemble, or decompile the Customer Material for the Term for the purposes of providing the Services in accordance with this Agreement.

12. Warranties

12.1 Each Party warrants to the other that:
(a) it has been duly incorporated and is validly existing as a limited liability company;
(b) no steps have been taken for its winding up or liquidation or receivership; and
(c) it has corporate power and authority to enter into this Agreement and perform its obligations under this Agreement.
12.2 The Customer warrants that:
(a) it will pay all amounts as and when due under this Agreement;
(b) it will comply with all Laws in its receipt and use of the Services;
(c) the Customer Material provided to Chorus Call under this Agreement will not infringe the IPR of any third Party; and
(d) that it will at all times comply with the requirements of clause 3.3(b).

13. Implied Warranties under Australian Consumer Law

ACL means the Australian Consumer Law, which is Schedule 2 to the Competition and Consumer Act 2010 (Cth).
13.1 If a representation, warranty or condition is implied, under any Law or otherwise, in connection with this Agreement and it can be excluded, Chorus Call excludes it to the maximum extent possible.
13.2 If the Customer has the benefit of any statutory guarantees under the ACL (Guarantees), this Agreement does not exclude, restrict or modify those Guarantees. If Chorus Call has liability for a breach of a Guarantee (other than a Guarantee provided for in section 51, 52 or 53 of the ACL), where it would be fair and reasonable for Chorus Call to do so, Chorus Call limits its liability to (at the Customer's discretion):
(a) in the case of goods, either the repair or replacement of the goods, or the supply of equivalent goods, or payment of the cost of having the goods repaired or replaced or of acquiring equivalent goods; and
(b) in the case of services, the supply of the services again or payment of the cost of supplying the services again.

14. Indemnities

14.1 The Customer indemnifies Chorus Call against any Claim or Loss that may be incurred or sustained by Chorus Call arising out of any act, matter or thing done, permitted or omitted to be done by the Customer or its employees or representatives in relation to:
(a) the Customer's obligations to pay the Fees in accordance with this Agreement;
(b) its (and its employees' and representatives') receipt and use of the Services;
(c) any breach by the Customer of clause 11.3; and
(d) any revocation, limitation, suspension or withdrawal of the licence referred to in clauses 11.2 and 11.5.
14.2 Subject to the Customer's compliance with clause 14.2, Chorus Call will defend the Customer against any Claims made by an unaffiliated third party that the Software (other than the Open Source Components) infringes the Intellectual Property Rights of that third party, and will pay the amount of any resulting adverse final judgment by a court of competent jurisdiction (or legally binding settlement to which Chorus Call consents).
14.3 If a Claim to which clause 14.2 applies is made by an unaffiliated third party against the Customer, the following procedures apply:
(a) the Customer must promptly give to Chorus Call full details of the Claim including details of the fact, circumstance or matter giving rise to the Claim, the nature of the Claim and the Customer’s calculation of the Loss suffered and any further related information of which the Customer becomes aware;
(b) until it notifies Chorus Call in accordance with paragraph (a), the Customer must take reasonable steps to mitigate any Loss which may give rise to a Claim under this Agreement;
(c) the Customer must not make any admission of liability, agreement or compromise with any person in relation to the fact, circumstance or matter without first consulting with and obtaining the approval of Chorus Call;
(d) the Customer must give Chorus Call and its professional advisers access to:
(i) the personnel and premises of the Customer;
(ii) relevant accounts, documents and records within the power, possession or control of the Customer, to enable the Customer and its professional advisers to examine the personnel, premises, accounts, documents and records and to take copies or photographs of them at Chorus Call’s expense;
(e) at Chorus Call’s expense, the Customer must take all action in good faith and with due diligence that Chorus Call (acting reasonably and in consultation with the Customer) directs to avoid, remedy the Loss, including legal proceedings and disputing, defending, appealing or compromising the Claim and any adjudication of it; and
(f) Chorus Call may elect to have control of the defence of proceedings relating to the Claim and all negotiations for its settlement, in which case the Customer must:
(i) execute such forms and documents and also make such personnel and documents available to Chorus Call or its advisers as Chorus Call may reasonably require to enable Chorus Call and its advisers (as the case may be) to assume, defend or take such other action in respect of any such Claim at Chorus Call’s cost; and
(ii) promptly notify Chorus Call (and provide copies) of receipt by it of any advice, correspondence or other communication with the third Party (or its advisers) which relates to the Claim.
14.4 If Chorus Call receives information concerning an infringement Claim relating to the Software, Chorus Call may, at its expense and without obligation to do so, either:
(a) procure for the Customer the right to continue to run the Software; or
(b) modify the Software or replace it with a functional equivalent to make it non-infringing, in which case the Customer will stop running the Software immediately.
14.5 The Customer agrees and acknowledges that Clauses 14.2 and 14.2 provides the Customer's exclusive remedy for third party IPR infringement Claims.

15. Liability

15.1 The aggregate liability of Chorus Call for:
(a) any breach of a Guarantee is as set out in clause 13.2; and
(b) any breach of this Agreement or otherwise is limited to the Fees actually paid to Chorus Call by the Customer under this Agreement in the 3 month period prior to the Claim.
15.2 Chorus Call is not liable to the Customer to make any payment (whether by way of indemnity, damages or otherwise) in respect of any Consequential Loss howsoever arising, including from any breach of this Agreement, any breach of statute, any tort (including negligence) or otherwise.

16. Termination and Suspension

16.1 Termination for cause
(a) Either Party may terminate this Agreement in whole or in part with immediate effect at any time by giving written notice to the other Party if:
(i) the other Party commits a material breach of this Agreement (unless the breach is capable of remedy, in which case if the other Party fails to remedy the breach within thirty days after being required in writing to do so);
(ii) the other Party becomes subject to an Insolvency Event; or
(iii) the other Party breaches clause 17 (Confidentiality) or clause 18 (Privacy).
(b) Chorus Call may terminate this Agreement in whole or in part with immediate effect at any time by giving written notice to the Customer if:
(i) there is any breach by the Customer of clause 11.3 or clause 7.1;
(ii) the Customer has exceeded the Fair Use Allowance across any two consecutive calendar months (calculated by reference to the average usage per calendar month);
(iii) a third party supplier, including any licensor of the Software to Chorus Call, terminates its agreement with Chorus Call and Chorus Call cannot provide the Service to the Customer by using an alternative supplier; or
(iv) the Customer fails to pay an amount which is due and payable in accordance with clause 10 and is overdue for a period of at least 90 days.
16.2 Termination for convenience
(a) At any time after the Minimum Term, Chorus Call may terminate this Agreement in whole or in part for convenience and without incurring liability by providing 30 days' written notice to the Customer.
(b) If the Customer wishes to terminate this Agreement for convenience, it may do so at anytime during:
(i) the Minimum Term, by providing at least 30 days' written notice to Chorus Call and by paying Chorus Call the Total Minimum Fee less any Fees that have already been paid; or
(ii) the then current Extension Period, by providing at least 30 days' written notice to Chorus Call and by paying Chorus Call any Fees that would have been payable during that Extension Period had the Agreement not been terminated.
16.3 Rights and obligations on expiry or termination
On expiry or termination of this Agreement:
(a) each Party shall promptly return or destroy (as directed by the other Party) all Confidential Information of the other Party; and
(b) in accordance with clause 10, the Customer must pay for all Services properly performed by Chorus Call on a pro rata basis prior to the date of termination or expiry.
16.4 Suspension of the Services
The Customer agrees and acknowledges that, without prejudice to and in addition to its rights under clauses 16.1 and 16.2, Chorus Call may promptly suspend or limit the provision of the Services to it if:
(a) the Customer is in breach of clause 5.1;
(b) the Customer is exceeding the Fair Use Allowance in accordance with clause 16.1
(b)(ii) or on a persistent basis;
(c) the Services are being used to commit unauthorised, criminal or unlawful activities;
(d) the Customer or a User has engaged in fraudulent activities in relation to the Services; or
(e) the Customer is re-selling the use of the Services (whether for a fee or other valuable consideration) to any third party which is not a Related Body Corporate.
16.5 Continuing rights and obligations
(a) The termination or expiry of this Agreement for any reason whatsoever shall not affect any rights, liabilities or remedies that have accrued prior to or upon termination or expiry.
(b) Without limiting any other provision of this Agreement:
(i) the Schedule (Definitions and Interpretation), clauses 10 (Payment and Taxation), 11 (IPR), 13 (Indemnities), 15 (Liabilities), 16.3 (Rights and obligations on expiry or termination), 17 (Confidentiality), 18 (Privacy), 20 (Notices) to 31 (Costs and Duty) and this clause 16.5 survive termination or expiration of this Agreement for any reason.

17. Confidentiality

17.1 Subject to clause 17.3, a Party must not disclose, or use for a purpose other than contemplated by this Agreement, any Confidential Information of the other Party which is not in the public domain (other than as a result of a breach of this Agreement or another obligation of confidence).
17.2 The obligation of confidence in clause 17.1 extends to Confidential Information provided to or obtained by a Party before entering into this Agreement.
17.3 A Party may disclose any Confidential Information:
(a) to the other Party to this Agreement;
(b) under corresponding obligations of confidence as imposed by this clause, to persons which control or are controlled by the Party, and the employees, legal advisors or consultants of such persons;
(c) which is at the time lawfully in its possession and gained through sources other than the other Party, or a Related Body Corporate of the other Party, to this Agreement;
(d) in enforcing this Agreement or in a proceeding arising out of or in connection with this Agreement;
(e) if required under a binding order of a Government Agency or under a procedure for discovery in any proceedings;
(f) if required under any Law or any administrative guideline, directive, request or policy whether or not having the force of law;
(g) as required or permitted by this Agreement;
(h) to its legal advisers and its consultants; or
(i) with the prior consent of the other Party.

18. Privacy

Parties must in respect of any Personal Data which it receives or has access to in connection with this Agreement:
(a) comply at all times with the Privacy Laws;
(b) only use the Personal Data to the extent necessary to perform its obligations under this Agreement;
(c) only disclose the Personal Data to its employees to the minimum extent necessary to perform the Services and ensure that any person to whom the Personal Data is disclosed will manage the Personal Data consistently with the Customer's obligations under this clause 18; and
(d) ensure that the Personal Data is protected against loss, unauthorised access, use, modification or disclosure.

19. Force Majeure

Chorus Call will not be liable for any delay in or failure of performance arising from Force Majeure if it has taken all proper precautions, due care and reasonable alternatives with the intention of avoiding that delay or failure and of carrying out its obligations under this Agreement.

20. Notices

20.1 Any notice, demand, consent or other communication (a Notice) given or made under this Agreement:
(a) must be in writing and signed by the sender or a person duly authorised by the sender;
(b) must be addressed and delivered:
(i) in the case of the Customer, to the contact and address set out in the Agreement Particulars; and
(ii) in the case of Chorus Call, to:
     Video and Media Manager
     Chorus Call Australia
     Level 2, 346 Turbot Street
     Brisbane QLD 4000
     Fax: +61 7 33910135
     Email: ozmedia@choruscall.com

(c) will be conclusively taken to be duly given or made when delivered, received or left at the above fax number or address. If delivery or receipt occurs on a day that is not a Business Day in the place to which the Notice is sent or is later than 4pm (local time) at that place, it will be conclusively taken to have been duly given or made at the commencement of business on the next Business Day in that place.
20.2 Any Notice which may be given or made under clause 20.1 may instead be sent by email if:
(a) the Notice is signed by a person clearly authorised by the sender in a manner which complies with the electronic signature guidelines agreed by the sender and the intended recipient;
(b) the Notice is sent to the email address set out in the Agreement Particulars or clause 20.1 or the email address last notified by the intended recipient to the sender after the Commencement Date; and
(c) the sender keeps an electronic copy of the Notice sent.
20.3 The recipient of a Notice sent under clause 20.2 must promptly acknowledge receipt of a Notice sent under this clause and must keep an electronic copy of the Notice.
20.4 A Notice sent under clause 20.2 will be conclusively taken to be duly given or made on the first to occur of:
(a) receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the email address set out in clause 20.1;
(b) the time that the Notice enters an information system which is under the control of the recipient; and
(c) the time that the Notice is first opened or read by the recipient. If the result is that a Notice given under clause 20.2 would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or is later than 4pm (local time) it will be conclusively taken to have been duly given or made at the start of business on the next Business Day in that place.

21. Entire Agreement

This Agreement contains the entire agreement between the Parties with respect to their subject matter. This Agreement sets out the only conduct, representations, warranties, covenants, conditions, agreements or understanding (collectively Conduct) relied on by the Parties and supersedes all earlier Conduct by or between the Parties in connection with their subject matter. Neither Party has relied on or is relying on any other Conduct in entering into this Agreement and completing the transactions contemplated by it.

22. Assignment and Sub-contracting

22.1 The Customer must not, without Chorus Call's prior written consent (not to be unreasonably withheld), sub-contract, assign or contract out any of its rights and obligations under this Agreement.
22.2 Chorus Call's consent to any sub-contracting, assignment or contracting out will not relieve the Customer of its obligations to Chorus Call under this Agreement and the Customer will remain fully responsible to Chorus Call for the acts or omissions of its sub-contractors, contractors, assigns and all their employees.

23. Amendment

No amendment or variation of this Agreement is valid or binding on a Party unless made in writing executed by all Parties.

24. Further Assurances

At the reasonable request of another Party, each Party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transactions contemplated by it.

25. Governing Law and Jurisdiction

This Agreement is governed by the laws of Queensland. In relation to it and related non‑contractual matters each Party irrevocably submits to the non‑exclusive jurisdiction of courts with jurisdiction there, and waives any right to object to the venue on any ground.

26. Severability of Provisions

Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

27. Remedies Cumulative

The rights, powers and remedies provided to Chorus Call in this Agreement are in addition to, and do not exclude or limit, any right, power or remedy provided by Law or by any agreement.

28. No Waiver

A failure to exercise or a delay in exercising any right, power or remedy under this Agreement does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting that waiver unless made in writing.

29. No Agency or Partnership

Nothing in this Agreement is to be construed as constituting an agency, partnership, joint venture, or any other form of association between the Parties in which one Party may be liable for the acts or omissions of any other Party. No Party has the authority to incur any obligation or make any representation or warranty on behalf of, or to pledge the credit of, any other Party.

30. Counterparts

This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

31. Costs and Duty

Each Party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement. All duty (including stamp duty and any fines, penalties and interest) payable on or in connection with this Agreement and any instrument executed under or any transaction evidenced by this Agreement must be borne equally by the Parties.

Part C - Schedule

1. Definitions and interpretation

1.1 Definitions

The following definitions apply unless the context requires otherwise.

Additional User Accounts means User Accounts created pursuant to clause 7.2 of the Terms and Conditions.

Agreement Particulars means Part A of this Agreement.

Business Day means a day which is not a Saturday, Sunday or public holiday in Brisbane.

Claim means, in relation to a Party, a demand, claim, action or proceeding made or brought by or against the Party, however arising and whether present, unascertained, immediate, future or contingent.

Commencement Date means the date this Agreement is executed by both Parties and the date upon which the Services shall begin to be provided in accordance with the terms of this Agreement.

Confidential Information means:
(a) the existence of and terms of this Agreement;
(b) all information relating to a Party (the first Party), its customers, its information technology systems or its business which is disclosed to the other Party (the second Party), its employees or contractors, by or on behalf of the first Party, or which is otherwise acquired by the second Party or its employees or contractors directly or indirectly from the first Party or which otherwise comes to the knowledge of the second Party, its employees or contractors in connection with this Agreement, whether the information is in oral, visual or written form or is recorded in any other medium; and
(c) in the case of Chorus Call, means all of Chorus Call's technical information, including its proprietary tools and methodologies and information about Chorus Call's internal affairs, business plans and business practices which the Customer acquires in the course of receiving Services under this Agreement. Consequential Loss means any loss of profits, loss of revenue, loss of anticipated savings, loss of data, loss of or damage to reputation, loss of or damage to goodwill, loss of business opportunities (including opportunities to enter into or complete arrangements with third Parties), loss of management time, damage to credit rating, loss or damage sustained in connection with any Claim brought by a third Party (except as expressly otherwise provided in this Agreement), or loss of business, whether arising directly or indirectly from the relevant act or omission.

Copyright Act means the Copyright Act 1968 (Cth).

Corporations Act means the Corporations Act 2001 (Cth).

Customer Details means the details of the Customer as recorded in the Agreement Particulars.

Customer Material means any software, tools, know-how, plans, documents, processes or methodologies or any other materials provided by the Customer to Chorus Call to assist Chorus Call to provide the Services to the Customer under this Agreement.

Customer Technology means all of the information and communications technology controlled or used by the Customer to access and use the Services, including but not limited to mobile devices, hardware, software, systems, operating systems, internet services and network connections, but excluding the Software and any information technology used by Chorus Call to supply the Services.

Existing Material means any software, tools, know-how, processes or methodologies or any other materials owned by or licensed to Chorus Call prior to the Commencement Date, or created independently of this Agreement, but does not include the Software.

Extension Period means each 12 month period by which the Minimum Term will be extended under clause 2.2 of the Terms and Conditions.

Fair Use Allowance means the fair use allowance set out in the Agreement Particulars.

Feedback means any feedback, ideas, concepts or suggestions about the Services, business, technology or Software provided by the Customer to Chorus Call.

Fees mean the fees for Services payable by the Customer to Chorus Call as set out in the Agreement Particulars.

Force Majeure means an event or cause beyond the reasonable control of Chorus Call. It includes each of the following, to the extent it is beyond the reasonable control of Chorus Call:
(d) act of God, lightning, storm, flood, fire, earthquake or explosion, cyclone, tidal wave, landslide, adverse weather conditions;
(e) strike, lockout or other labour difficulty;
(f) act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic;
(g) the effect of any applicable Laws, orders, rules or regulations of any government or other competent authority;
(h) embargo, inability to obtain any necessary materials, equipment, facilities or qualified employees, power or water shortage, lack of transportation; and
(i) breakage or accident or other damage to machinery.

Government Agency means a government or a governmental, semi‑governmental or judicial entity or authority, including the Australian Communications and Media Authority, the Telecommunications Industry Ombudsman, Australian Information Commissioner or the Australian Competition & Consumer Commission. It also includes a self‑regulatory organisation established under statute or a stock exchange.

Insolvency Event means in respect of a Party:
(a) it suspends payment of its debts generally, or is or becomes unable to pay its debts when they are due, or threatens to stop or suspend payment of all or a class of its debts, or is or becomes unable to pay its debts within the meaning of the Corporations Act;
(b) it enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(c) it ceases, or threatens to cease, to carry on business; or
(d) a receiver, receiver and manager, administrator, trustee or similar official is appointed over any of its assets or undertakings, an application or order is made for the winding up or dissolution of it, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of it, except for the purpose of an amalgamation or reconstruction which has the other Party's prior consent.

Intellectual Property Rights or IPR means:
(a) all rights conferred by statue, common law or in equity and subsisting anywhere in the world in relation to:
(i) registered and unregistered copyright;
(ii) inventions (including patents, innovation patents and utility models);
(iii) confidential information, trade secrets, technical data and know-how;
(iv) registered and unregistered designs;
(v) registered and unregistered trademarks; and
(vi) circuit layout designs, topography rights and rights in databases, whether or not any of these is registered, registrable or patentable;
(b) any other rights resulting from intellectual activity in the industrial, commercial, scientific, literary or artistic fields which subsist or may hereafter subsist;
(c) any licence or other similar right from a third Party to use any of the above; and
(d) any applications and the right to apply for registration of any of the above, but excluding moral rights, and similar personal rights, which by law are non-assignable and excluding also non-assignable rights of performers under Part XIA of the Copyright Act and similar non-assignable rights of performers under foreign laws, and excluding also non-assignable rights of visual artists under the Resale Royalty Right for Visual Artists Act 2009 (Cth) and similar non-assignable rights of visual artists under foreign law.

Law means all laws including rules of common law, principles of equity, statues, regulations, proclamations, ordinances, by laws, rules, regulatory principles, requirements and determinations, mandatory codes of conduct, writs, orders, injunctions and judgments.

Loss means losses, liabilities, claims, proceedings, actions, demands, damages, costs, charges, expenses or diminution in value, however arising, and whether present or future, fixed or unascertained, actual or contingent.

Minimum Requirements means the minimum standards of the Customer's hardware, peripherals, software, systems, operating systems and network connectivity that are required to allow Chorus Call to provide the Services in accordance with this Agreement.
Compatible devices and minimum requirements for the installation of the Software are available to view at Full feature list.

Minimum Term means the initial period of the Agreement set out in the Agreement Particulars.

Minimum Uptime means 99.5% of Uptime averaged over each calendar month.

Parties means Chorus Call and the Customer, with each separately referred to as a Party.

Personal Data means "personal information" as defined in the Privacy Act 1988 (Cth).

Privacy Law means:
(a) the Privacy Act 1988 (Cth);
(b) Part 13 of the Telecommunications Act 1997 (Cth);
(c) any legislation from time to time in force in any:
(i) Australian jurisdiction (which includes the Commonwealth of Australia and any State or Territory of Australia);
(ii) non-Australian jurisdiction (to the extent that either Party is subject to the laws of that jurisdiction), affecting privacy, personal information or the collection, handling, storage, processing, use or disclosure of data; and
(d) any ancillary rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time.

Related Body Corporate has the meaning given to related body corporate in the Corporations Act.

Schedule means Part C of this Agreement.

Services means the services set out in the Agreement Particulars to be performed by Chorus Call in accordance with this Agreement.

Service Credit means an abatement of Fees as a result of Chorus Call failing to perform the Service in accordance with the Service Levels and are calculated in accordance with the Agreement Particulars.

Service Levels means the service levels set out in the Agreement Particulars.

Software means the software referred to in the Agreement Particulars.

Specifications means the functional, operational, performance and technical specifications of the ClearSea™ in the Cloud videoconference system, and which are available to view Here and which may change from time to time without notice to the Customer.

Term means the period of this Agreement as set out in clause 2 of the Terms and Conditions.

Terms and Conditions means the terms and conditions of this Agreement set out in Part B of this Agreement.

Total Minimum Fee means the minimum consideration payable by the Customer under this Agreement as set out in the Agreement Particulars.

Uptime means the time during which the Services are or should be made available, as the context requires.

User means an employee, agent, contractor or sub-contractor of the Customer or anyone else who is authorised by the Customer to create a User Account and use the Services.

User Account means the account created by the User using the User's email address when the User registers online to use Services.

1.2 Interpretation

(a) Headings are for convenience only and do not affect interpretation.
(b) Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included.
(c) Nothing in this Agreement is to be interpreted against a Party solely on the ground that the Party put forward this Agreement or a relevant part of it.
(d) The following rules apply unless the context requires otherwise.
(e) The singular includes the plural, and the converse also applies.
(f) A gender includes all genders.
(g) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(h) A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(i) A reference to a clause or Schedule is a reference to a clause of or schedule to this Agreement.
(j) A reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as amended, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document.
(k) A reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form.
(l) A reference to a Party to this Agreement or another agreement or document includes the Party's successors, permitted substitutes and permitted assigns (and, where applicable, the Party's legal personal representatives).
(m) 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.
(n) A reference to conduct includes an omission, statement or undertaking, whether or not in writing.
(o) A reference to an agreement includes any undertaking, deed, agreement and legally enforceable arrangement, whether or not in writing, and a reference to a document includes an agreement (as so defined) in writing and any certificate, notice, instrument and document of any kind.
(p) A reference to dollars and $ is to Australian currency.
(q) A reference to a right or obligation of any two or more people comprising a single Party confers that right, or imposes that obligation, as the case may be, on each of them severally and each two or more of them jointly. A reference to that Party is a reference to each of those people separately (so that, for example, a representation or warranty by that Party is given by each of them separately).
(r) A reference to an asset includes any real or personal, present or future, tangible or intangible property or asset (including IPR) and any right, interest, revenue or benefit in, under or derived from the property or asset.
(s) A reference to an amount for which a person is contingently liable includes an amount that that person may become actually or contingently liable to pay if a contingency occurs, whether or not that liability actually arises.
(t) A month means a calendar month.

1.3 Consents and approvals

If the doing of any act, matter or thing under this Agreement is dependent on the consent or approval of a Party or is within the discretion of a Party, the consent or approval may be given or the discretion may be exercised conditionally or unconditionally or withheld by the Party in its absolute discretion unless expressly provided otherwise.


For additional assistance, please contact us on 1800 98 88 98 or ozsupport@choruscall.com

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