Master Terms & Conditions

DELACON MASTER TERMS AND CONDITIONS (the “Terms & Conditions”)

1. Definitions

In these Terms & Conditions the following words have the following meanings:

1.1        Agreement: means the agreement for the provision of the Services between Delacon and the Customer, comprised of:

(a)      the Application; and

(b)      these Terms & Conditions and any schedule hereto; and

(c)      Delacon’s current schedule of charges applying from time to time (to the extent that the charges listed therein are not covered by the Application); and

(d)      any documentation authorising the transfer (porting) of telephone services to Delacon (and any schedules thereto).

1.2        Application means an application for service or account application or order form or any other similar document issued by Delacon and signed on behalf of the Customer.

1.3        Call Charges means the usage fees applying to the Customer’s use of the Service(s) from time to time,. Each usage fee is:

(a)      based on the per call, per minute or per second rate(s) applying to the Service(s) (as set out in the Application), plus Consumption Tax;

(b)      for per minute rates, calculated in 60 second units; and

(c)      rounded up to the nearest whole cent.

1.4        Carrier means:

(a)      for Customers in Australia, a telecommunications carrier licensed under the Telecommunications Act 1997 (Cth) as a general carrier or a public mobile telecommunications carrier; and

(b)      for Customers located outside Australia, a fixed or mobile public telecommunications carrier used in the provision of the Services and which is licensed by the relevant telecommunications regulatory authority empowered to issue such licences.

1.5        Change of Control means:

(a)      the sale of all or substantially all the assets of a party;

(b)      any merger, consolidation or acquisition of a party with, by or into another corporation, entity or person (except for any corporation that was, immediately prior to such merger, consolidation or acquisition, a Related Corporation of the party); or

(c)      any change in the ownership of more than fifty percent (50%) of the voting capital stock of a party in one or more related transactions.

1.6        Confidential Information means the information described in clause 21.1 of these Terms & Conditions.

1.7        Consequential Loss means:  , or for any indirect, special, incidental or consequential damages

(a)      any form of consequential, special, indirect, punitive or exemplary loss or damages;

(b)      any loss of revenue, loss of profit, loss of anticipated savings or business, loss of opportunity, expectation loss, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), business interruption, and costs of procurement of substitute goods or services; and

(c)      any penalties or fines imposed by a regulatory body.

1.8        Consumption Tax means any applicable consumption tax, including any goods and services tax (including the GST), value added tax and any other sales or similar tax.

1.9        Content means data, information, files, software, scripts, images, graphics, audio, video, text, and any other object or information, whether in written or audio form (e.g. voice messages).

1.10     Customer Credit Account means a prepaid “Pay As You Go” account set up by Delacon in the name of the Customer,  to be maintained in credit by the Customer.

1.11     Current Supplier means a third party Carrier, telecommunications service provider or equipment supplier that is supplying telecommunications services or equipment to the Customer immediately prior to the Agreement entering into effect.

1.12     Delacon means the Delacon entity identified on the Application signed by the Customer.

1.13     Delacon Materials means any materials or information (including but not limited to data analytics reports, insights reports, statistical reports and usage measurements generated by or relating to the Services, together with any Marketing Materials) provided, developed, derived, or made available by Delacon (independently or with Customer’s assistance or cooperation) in the course of performance of the Services, and including in the course of the delivery of any support or Professional Services to Customer.

1.14     Documentation means any technical or functional documentation relating to the Services (including technical and functional specifications as updated from time to time) that is made available by Delacon to Customer in connection with Customer’s use of the Services, whether in written or electronic form (including but not limited to material displayed on a Website).

1.15     Fee means each of:

(a)      the Monthly Recurring Fee;

(b)      the Call Charges; and

(c)      any other fee or charge applying to Your use of the Services (including but not limited to any one-off set-up fee).

1.16     Force Majeure means any circumstance beyond the control of Delacon whereby Delacon is unable to perform an obligation under the Agreement, either at all or at any time or from time to time,  including (without limitation):

(a)      internet access failure caused by, amongst other things, any third party action that results in denial of service or access;

(b)      any regulation, law, restriction, action or inaction of any governmental agency;

(c)      industrial action or labour disturbance;

(d)      interruption, suspension or cancellation of any telecommunications service provider;

(e)      any act of God or act of nature, requirement or restriction of governmental authorities, inability or delay in the grant of governmental or other approvals, consents, permits, licences or authorities;

(f)       any act or omission of a third party which affects the provision of the Service.

1.17     GST means:

(a)      the same as in the GST Law;

(b)      any other goods and services tax, or any tax applying to transactions taking place under the Agreement in a way that is similar to the way GST applies to transactions; and

(c)      any additional tax, penalty, tax, fines, interest or other charge applying under the GST Law, or under any law applying a tax described in sub-paragraph (b) above.

1.18     GST Law has the same meaning as “GST law” in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

1.19     Harmful Code means any program, routine or device which is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, including without limitation, any ‘time bomb’, virus, drop dead device, malicious logic, worm, Trojan horse or trap or back door.

1.20     Intellectual Property Rights means:

• patents of any type, design rights, utility models or other similar invention rights;
• copyrights and related rights;
• circuit layout, database, trade secret, trade name, business name, company name, domain name, know-how or confidentiality rights (including, without limitation, with respect to any techniques, methods, inventions, processes);
• trademarks, trade names and service marks; and
• any and all other proprietary, licenced or personal rights arising from intellectual activity and belonging to a party, or used in connection with any Service,

in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired, and in each case

• whether registered or unregistered; and
• including any applications (or rights to apply) and registrations for any of the foregoing; and
• including all rights with respect to any and all improvements or modifications.

1.20     Law means any law, regulation, by-law, governmental, judicial or regulatory direction or order, code, guideline, standard or license condition.

1.21     Loss means any loss, cost, liability or damage, including reasonable legal costs on a solicitor/ client basis and, unless otherwise stated, includes Consequential Loss.

1.22     Marketing Materials means any information or materials relating to or used for the marketing or sale of any Delacon service (including but not limited to any training materials, and the design and Content of any Website) provided, developed, derived, or made available by Delacon to the Customer.

1.23     Monthly Invoice has the meaning given to it in clause 16.2 of these Terms & Conditions.

1.24     Monthly Recurring Fee means the monthly recurring fee payable to Delacon in payment for the Service, as notified to the Customer from time to time.

1.25     Payment Date means (unless otherwise agreed by Us in writing) the date falling fourteen (14) days after the date on which an invoice is issued by Delacon .

1.26     Privacy Law means:

1. for Customers located in the United States of America, outside of California:  the Delaware Online Privacy and Protection Act;
2. for Customers located in California, USA:  the  California Consumer Privacy Act of 2018 (CCPA);
3. for Customers located in the United Kingdom:   the Data Protection Act 2018 and the  Data Protection Act 2018 and the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (UK GDPR);
4. for Customers located in the European Union: the General Data Protection Regulation (EU);
5. for Customers located in New Zealand:  the Privacy Act 2020;
6. for Customers located in Singapore: the Personal Data Protection Act 2012; and
7. for Customers in Australia or in any country or state not referred to in paragraphs (a) to (c) above, the Privacy Act 1988 (Cth).

1.27     Professional Services means implementation services, consulting services or other related services provided under the Agreement (as may be amended or varied from time to time) and may also be referred to in the Agreement as “Consulting Services”.

1.28     Related Corporation means, with respect to any body corporate (the “First Entity”), another body corporate that is:  (a) the holding company of the First Entity, (b) a subsidiary of the First Entity, or (c) any other subsidiary of a holding company of the First Entity.

1.29     Service means any service that Delacon supplies to You, as described in more detail in the Application signed by You.

1.30     Service Levels means the levels of service (if any) applying to a Service as set out in a Service Level Agreement.

1.31     Service Level Agreement means an agreement entered into between Customer and Delacon with respect to the levels of service applying to a Service.

1.32     Software means any software that is utilised by Delacon for the purposes of providing the Services (whether that software has been developed by or on behalf of Delacon, or is licensed by Delacon from any source), in its original or modified forms, together with any works deriving from such software.

1.33       Start Date means the date on which Services are first provided to the Customer by Delacon under this Agreement.

1.34     Third Party User means any third party user (including  but not limited to any customer or agent of the Customer) that is permitted by any act or omission of the Customer to access or use any Service for any reason.

1.35     Trademark means “Delacon”,  the Delacon logo and any other mark used by Delacon to distinguish its goods and services in the course of trade, whether registered or unregistered.

1.36     We, Our and Us means Delacon.

1.37     Website means any and all of the following websites at the URLs: www.delacon.io,  www.delacon.com.au, www.delaconcorp.com, www.delacon.co.nz, www.delacon.co.uk, www.delacon.in, www.delacon.sg,  www.delacon.com.hk and www.delacon.my.

1.36     You, Your and Customer means the entity named as the “Customer” in the Application, and any individual user accessing the Services provided to the Customer for any reason.

2. Binding Terms & Conditions

2.1        Delacon agrees to provide the Service on and subject to these Terms & Conditions (among other terms). By signing an Application, the Customer agrees to be bound by the Terms & Conditions (as varied from time to time) and which form part of the agreement between Delacon and the Customer governing the use of the Service.

2.2        If You do not accept these Terms & Conditions then You must not use the Service. Delacon may revise these Terms & Conditions at any time by updating this web page. You should visit this web page periodically to review it.  

2.3        Delacon may vary or amend any term of the Agreement (including but not limited to any Fee) by giving the Customer at least 28 days’ prior written notice (“Change Notice”) of such variation or amendment (each, a “Change”), including via email and/ or (in the case of a Change to any Fee) in any Monthly Invoice.  If the Customer does not agree to a Change, it may terminate the Agreement, or one or more of the Service(s) to which that Change applies, without incurring any additional liability to Delacon, by notifying Delacon of such termination in writing at least seven (7) days prior to the date of expiry of the notice period applying to the Change (“Notice Expiry Date”).  If Customer issues a termination notice under this clause 16.8, the specified termination will take effect on the Notice Expiry Date. If Customer does not issue a termination notice under this clause 16.8, it will be bound in full by the Change on and from the Notice Expiry Date.

3. Commencement of the Agreement

The Agreement between You and Delacon in respect of the supply of Services (incorporating these Terms & Conditions) starts when Delacon accepts Your Application, and will continue until the Agreement expires or is terminated in accordance with its terms.

4. Services

4.1        Nature of Services:  Delacon will provide the Services to the Customer. Delacon may from time to time vary the composition or characteristics of these Services including selection of the Carrier. Delacon will provide Services to the extent and standard of its Carriers. Delacon does not warrant that it will be able to provide all Services and will not be liable for any failure to do so.

4.2        Customer compliance: The Customer must, in connection with its use of the Services, comply with all Laws that apply to it anywhere in the world in connection with its use of the Services.

4.3        Customer acknowledgements:  The Customer acknowledges and agrees that:

(a)         the Services are not designed, intended, authorised or warranted to be suitable for making calls to emergency services; and

(b)         the Services cannot and should not be used to make calls to emergency services; and

(c)          Delacon or any Carrier supplying to Delacon may, at any point:

(i)           be required to intercept communications sent via the Services; and

(ii)          monitor usage of the Services and communications sent over them; and

(d)         local calls may not be itemised in Delacon’s invoices and Delacon shall not be required to provide itemisation of local calls at any time; and

(e)         it has relied on its own judgment to evaluate the suitability of the Service for the purpose for which it requires the Service.

5. Service Level Agreement

If Customer and Delacon enter into a Service Level Agreement (SLA) that sets out Service Levels for any Service, then:

• the terms of that SLA will apply to our provision of the relevant Service; and
• our liability for a failure to meet any applicable Service Level will be as set out in that Service Level Agreement (and You acknowledge this is Your only remedy in relation to a failure by Us to meet a Service Level).

6. Intellectual Property Rights

6.1        Delacon and/ or its Related Corporations and/ or its licensors own all Intellectual Property Rights in and to the Software, the Documentation and the Delacon Materials, except for any rights expressly granted to Customer under the Agreement.

6.2          Except as expressly permitted under the Agreement, Customer shall not: 

(a)         copy, modify, adapt, translate, disassemble, decompile, reverse engineer, make derivative works based on, localize, download, record, store in a retrieval system, publish, redistribute for any purpose, or be permitted to modify any Service, Content or Software, or any Documentation, or any of the Delacon Materials (or attempt any of the foregoing);

(b)         enter, store, or transfer any Content or data on or via the Services that is unlawful or infringes any Intellectual Property Rights of any party;

(c)         circumvent or endanger the operation or security of the Services or any Software or;

(c)         remove any of Delacon’s copyright or authorship notices ,

except to the extent that any action described in this clause 5.2 is expressly permitted by applicable law regardless of the above limitations (but only to that extent).

6.3        Customer must only use the Services, the Documentation and the Delacon Materials for its own internal business purposes, and not for any other purpose.

6.4        Upon written request by the Customer to use any Marketing Materials, Delacon may, at its sole discretion, grant the Customer a limited, non-exclusive, non-transferable, non-sublicensable license to use that Marketing Material subject to the terms of this Agreement and such other conditions as Delacon may, in its sole discretion, impose.  Without limiting any term of this clause 5, the Customer hereby irrevocably and unconditionally assigns to Delacon in full all right, title and interest that it may have or in future acquire in or to any Marketing Materials.

6.5        The Customer will comply with all guidelines provided by Delacon concerning the use of the Marketing Materials. All use by the Customer of the Marketing Materials (including any goodwill associated therewith) shall inure to the benefit of Delacon. Upon expiry or termination of this Agreement, the Customer shall immediately cease using any Marketing Materials and will return to Delacon (or destroy, at Delacon’s option), any Marketing Materials remaining in its possession.

6.6        Customer shall execute such documents and take such other steps as are reasonably necessary to protect and secure Delacon’s rights under this clause 5, as well as the existing rights of Delacon referred to in this clause 5. At no time during or after the term of this Agreement shall the Customer challenge or assist others to challenge Delacon’s Intellectual Property Rights.

7. Modifications to the Services

Delacon reserves the right to modify the Services, and the rules and directions governing their use, at any time, provided it has given the Customer reasonable written notice of such modification.

8. Limitation of liability

8.1        TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER THE COMPANY, NOR ANY OF ITS SUPPLIERS, LICENSORS, INDEPENDENT CONTRACTORS, EMPLOYEES OR OFFICERS, WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY:

• to the extent such purported liability in any way arises out of or relates to the conduct of the Customer, or any of its suppliers, licensors, independent contractors, employees or officers, or any other person for whom it is responsible; or
  • for any Consequential Loss, however caused and under any theory of liability (including negligence), and whether or not Delacon has been advised of the possibility of such loss and notwithstanding any failure of essential purpose of any limited remedy provided in the agreement. 

8.2        In no event shall Delacon’s liability (including without limitation liability under any obligation to indemnify) for any act or omission arising out of or related to this Agreement (including but not limited to acts and omissions of Delacon’s suppliers, licensors, employees, independent contractors and officers, and any negligent act or omission of Delacon) exceed an amount equal to the greater of:

(a)                   the total amount (excluding Consumption Tax) of the last Monthly Invoice issued by Delacon to the Customer prior to the date on which the cause of action arose, multiplied by twelve (12); and

(b)                   if Customer has been utilising the Services for a period of twelve (12) months or more, the sum of fees (excluding Consumption Tax) paid or payable by the Customer to Delacon under this Agreement during the twelve (12) months immediately preceding the date on which the cause of action arose.

8.3        The exemptions, limitations, terms and conditions set out in this Agreement shall apply whether or not any damage is caused by actions constituting a fundamental breach of contract.  The Customer agrees that the limitations set out in this clause 8 represent a reasonable allocation of risk.

8.4        Retention of data

(a)         Delacon is not obligated to store any data (including but not limited to call log data, files containing recorded calls, and transcriptions of recorded calls) collected for the Customer in the course of providing Services  for a period longer than the Retention Period.  “Retention Period” means the period beginning on the date when the specific data was collected by Delacon for the Customer, and ending on the fifth anniversary of that date.

(b)         Immediately following expiry of the Retention Period applying to specific collected data, Delacon may, at its discretion (but subject always to applicable law and regulations), delete and/ or destroy such data.

(c)         Delacon will have no liability to the Customer whatsoever in connection with any deletion or destruction undertaken in accordance with this clause 8.4.

(d)         However, nothing in this clause 8.4 is intended to limit or prevent Delacon’s compliance with applicable laws, regulations or guidelines relating to the retention and deletion of data, and no action taken by Delacon in compliance with such laws, regulations or guidelines will constitute a breach of this clause 8.4.

(e)         For clarity, Delacon may, in its absolute discretion, amend, update or vary its policies regarding the retention and deletion of data collected in the course of providing Services at any time and from time to time.

(f)          Customer data may be held for longer periods in Delacon’s back-up media until such time as it is deleted in accordance with Delacon’s policies and procedures relating to backed-up data.

9. Warranties

• Delacon warrants that the Services comply with any specifications set out in this Agreement and applicable Laws, but Delacon makes no representations or warranties that use of the Services will be continuous, uninterrupted or error-free. 
  • Subject to clause 9.1, to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to any services supplied by Delacon.
  • Where any Law implies in this Agreement any term, and that Law voids or prohibits provisions under a contract which exclude or modify the operation of such term, the term is deemed to be included in this Agreement.
  • Delacon makes no warranty express or implied as to the accuracy, completeness, currency, or reliability of any Content available through the Services (including without limitation Content accessible on or through a Website).

9.5        Customer acknowledges and agrees that Delacon has no control over any underlying telecommunications Carrier or the way in which such Carrier supplies its telecommunication services. Delacon does not guarantee that the telephone services it supplies will be free from call quality issues such as call delay, line noise and other similar issues. Delacon makes no representation or warranty that it will be able to rectify any such call quality issues within a reasonable time or at all.

9.6`     Customer must take all necessary precautions to ensure that that it will not transmit to or through any electronic device or network owned or operated by Delacon any Content containing any Harmful Code.

10. Links

From time to time, Delacon may post links that will allow You to leave the Website. The linked sites are not under the control of Delacon and Delacon assumes no responsibility for the content of such linked sites. Access to those sites is at Your own risk.

11. Customer to provide accurate information

Customer agrees to:

• provide true, accurate, current and complete information about the Customer, as requested by Delacon, including, but not limited to, contact email address(es), full legal identity, and billing information (the “Registration Data”);
• maintain and promptly update the Registration Data to ensure it remains true, accurate, current and complete. If the Customer provides information that is untrue, inaccurate, not current or incomplete, or if Delacon has reason to suspect that information provided is untrue, inaccurate, not current or incomplete, Delacon may suspend or terminate the Customer’s use of the Services (or any portion of the Services). Delacon may request additional Registration Data at any time and may suspend or terminate the Customer’s use of the Services (or any portion of the Services) if this information is not provided in a timely manner;
• if requesting any services to be provided in Singapore, provide Delacon with such personal identification documents (such as a passport or Drivers Licence) as it may require for Customer and for any of Your customers who wish to use a service provided by Delacon in Singapore.

12. Customer’s Use of Services

12.1     The Customer will not use, and must ensure that its Related Corporations and others within its control do not use the Services:

• for any purpose that is defamatory, offensive, abusive, obscene, menacing, threatening, harassing, or illegal;
• for any other unlawful purpose;
• to do any intentional act that may damage the network or systems or cause the quality of the Services to be impaired;
• to breach any person’s rights, or otherwise engage in any activity that is reasonably likely to expose Delacon or any Carrier to any loss, liability or expense whatsoever;
• in a manner that does not comply with the terms of any legislation or licence applicable to the Customer.
  • The Customer will comply with, and will procure that its Related Corporations and all Third Party Users comply with:
• all reasonable directions issued by Delacon to assist it or any Carrier involved in the supply of the Services in complying with any applicable regulatory obligations, and in particular directions relating  to the following where required by Law:
  • the provision of information to the police and other law enforcement agencies;
  • the provision of information for directory purposes; and
  • the provision of emergency services; and
• all applicable Laws in place from time to time and relating to the Customer’s use of the Services.

13. Security

Customer is responsible for maintaining the security and confidentiality of its means of access to the Services (including the user name and password for each and all of the Customer’s accounts), and is responsible for ensuring unauthorised use does not occur.   Customer is liable for all usage charges in respect of the use of the Service, regardless of whether such usage charges arise from usage that was authorised by You, and including all usage charges in excess of your Customer Credit Account balance or in excess of any credit extended to You. 

14. Telephone numbers

14.1     All telephone numbers provided to the Customer in connection with the use of the Services are registered to Delacon and are provided solely to enable the Customer to use the Services. The Customer acknowledges it has no right, title or interest in any telephone numbers allocated to it as part of the Services.

14.2     Although Delacon makes every attempt to ensure continued availability of telephone numbers, Delacon reserves the right to alter or replace any telephone number supplied to Customer in connection with the Services for the purposes of compliance with any applicable Law, or as the result of any action by a Carrier, and in such case will notify the Customer of any prospective numbering change that will affect the Services.

15. Suspension of Services

Delacon may without liability and with immediate effect suspend the Services or any portion of them:

• to perform necessary maintenance or other service work (including emergency maintenance work), provided that in the case of work other than emergency maintenance work it has given reasonable written notice to the Customer; or
• if Customer does not pay any Fee due and payable to Delacon by the applicable Payment Date; or
• if Customer’s Customer Credit Account is not in credit or is not in sufficient credit to meet Customer’s liability to pay any Fee due and payable under the Agreement.

16. Payment of Fees

16.1     At the beginning of each month, Delacon will charge Customer: (i) the Monthly Recurring Fees for the current billing month (paid in advance), (ii) the accrued Call Charges for the immediately preceding billing month (paid in arrears); and (iii) any other Fees or charges payable by the Customer under this Agreement with respect to either the immediately preceding billing month or the current billing month.

16.2     If Delacon agrees to charge the Customer on a post-paid basis, then at the beginning of each billing month Delacon will issue an invoice to the Customer setting out accrued Fees and charges, as described in clause 16.1 (a “Monthly Invoice”). The Customer must pay each Monthly Invoice by the Payment Date, in accordance with clause 16.3.

16.3     The Customer must pay Delacon all undisputed amounts set out in each invoice issued by Delacon, on or prior to the applicable Payment Date. If the Customer disputes any part of an invoice on genuine grounds, the Customer must notify Delacon of the disputed amount in writing within ten (10) days of receiving the relevant invoice, giving the reasons for which the amount is disputed, and must pay the undisputed amount of the invoice by the Payment Date. Unless the Customer notifies Delacon that an invoiced amount is disputed, in accordance with this clause, all amounts invoiced by Delacon will be deemed undisputed.

1. As a condition of Delacon providing the Service, Delacon may:

(a)         conduct a credit check;

(b)         obtain a credit report regarding the Customer from a credit-reporting agency;

(c)         make independent enquiries of third parties concerning Customer’s financial standing;

(d)         disclose to a credit reporting agency:

(i)        that Customer has applied for the Services, and any credit limit on the Customer’s account;

(ii)      Customer’s identifying details;

• the amount of any payments overdue for at least sixty days on Customer’s account, if Delacon has taken steps to recover those overdue amounts;
• credit card payments by Customer to Delacon that have been dishonoured; and
• Court judgments or bankruptcy orders made against the Customer.
  • Delacon is taken to have received payment from the Customer:
    • in the case of payment via a Customer Credit Account, when Delacon debits the Customer Credit Account the Fee or charge payable by the Customer from time to time;
    • in the case of payment by electronic transfer (where Delacon has agreed to accept payment by electronic transfer), on the date of deposit shown in Delacon’s bank account statement; and
    • in the case of payment via a direct debit from the Customer’s nominated credit card or bank account, when Delacon has received payment from the credit card provider or relevant bank into its nominated bank account.

16.6     Delacon may either suspend and/ or disconnect any or all Service(s) is supplies to the Customer immediately, if:

(a)         Customer has a Customer Credit Account with Delacon and, at any time, such account has a zero balance or a negative balance; or

(b)         payment of any invoice issued by Delacon to the Customer is not made by the Payment Date.

In addition, if Customer fails to pay any amount invoiced to it by Delacon on or before the due date for payment of that invoiced amount, or if at any time Customer has a Customer Credit Account with a zero or negative balance, then Delacon may charge the Customer:

• a late payment fee in an amount equivalent to AUD 30 in the currency in which You pay Fees, plus Consumption Tax; or

(ii)    interest on the outstanding amount of the invoice or the negative balance of the Customer Credit Account per month or part thereof, at the rate of three percent (3%) above the then- current official cash rate determined by the Reserve Bank of Australia, from: (A) the due date for payment (in the case of an invoiced amount); or (B) the date on which the balance became negative (in the case of a Customer Credit Account), up to the date that Delacon receives full payment of the outstanding invoiced amount, or the balance of the Customer Credit Account ceases to be negative (as applicable), before and after judgment,

whichever amount is the greater.  Nothing in this clause affects Delacon’s rights to terminate the Agreement.

16.7     In the event of any default in payment to Delacon, if the Customer hasn’t remedied the default within thirty (30) days of such default, the Customer will pay Delacon its reasonable costs of and incidental to the recovery of such sums as may be due, including legal fees and charges on a solicitor-client full indemnity basis, and any filing fees, stamp duty, taxes or any other fees payable, assessed or incurred in relation to such recovery process.

16.8     Payment processing and handling fees may be payable by the Customer, depending on the Customer’s mode of payment and as advised by Delacon from time to time (for example, processing fees will apply to payments via Paypal and other payment technology gateways, direct debit from your bank account, and credit card (in certain cases).  You will be liable to pay any fees or charges incurred by Delacon in relation to payments made by you from an overseas bank account or credit card

16.9     If the balance of your Customer Credit Account falls below an amount equivalent to AUD100 in the currency in which You pay Fees, Delacon will automatically deduct from Customer’s nominated credit card or bank account (“Nominated Account”) an amount equal to the greatest amount of Monthly Recurring Fees incurred by the Customer over the preceding six months, and apply that amount as a credit on your Customer Credit Account.   

16.10  Customer is responsible for ensuring that at all times there is sufficient credit on its Nominated Account to pay the Fees incurred under this Agreement as they fall due.  If the balance of its Customer Credit Account falls to zero for any reason, Delacon will not extend any credit to Customer, and Delacon may terminate the Services forthwith without notice. 

16.11  Delacon will notify the Customer by email: (a) when the balance of your Customer Credit Account falls below an amount equivalent to AUD100 in the currency in which You pay Fees (or such other threshold amount as Delacon may determine from time to time), and (b) of each amount deducted from Customer’s Nominated Account and applied to your Customer Credit Account.

16.11   Customer acknowledges and agrees that, where:

(a)         its prepaid Customer Credit Account is terminated for any reason (including, without limitation, where the Customer cancels the Services); and

(b)         that account is in credit at the time of its termination,

it is Delacon’s policy, following termination, to refund the “Net Credit Amount”, which is the amount by which the account was in credit upon termination, minus the amount of any Fees incurred by the Customer on or prior to termination and remaining unpaid at termination. However, in order to be refunded, the Net Credit Amount must be an amount equivalent to AUD 200 (or more) in the currency in which You pay Fees. If the Net Credit Amount is less than the amount equivalent to AUD 200 in the currency in which You pay Fees, then it is Delacon’s policy not to refund the Net Credit Amount.

17. Consumption Tax

17.1     Fees payable to Delacon are subject to any applicable Consumption Tax.

17.2     If required by relevant legislation giving rise to the Consumption Tax, Delacon will issue a tax invoice (or an adjustment note) to the Customer for any supply for which Delacon may recover Consumption Tax from the Customer pursuant to this Agreement and must include in the tax invoice (or adjustment note) the particulars required by the relevant legislation giving rise to the Consumption Tax for the Customer to obtain any input tax credit for that Consumption Tax.

17.3     Delacon will refund to the Customer any overpayment by the Customer for Consumption Tax, but Delacon need not refund to the Customer any amount for Consumption Tax paid to the relevant authority collecting the Consumption Tax unless Delacon has itself received a refund or credit of that amount.

18. Indemnities

18.1     The Customer irrevocably and unconditionally indemnifies Delacon and its Related Corporations (each, an “Entity”), against any Loss incurred or suffered by an Entity as a result of, or in connection with:

• any breach of the Agreement by the Customer;
• any fraud, negligence or wilful default by the Customer or any Third Party User;
• any claim by the Customer or a Third Party User against any Carrier involved in the supply of the Services, relating to Delacon’s provision of the Services;
• any claim by any third party against Delacon arising from:
  • a breach of the Agreement by the Customer; or
  • any negligent act or omission on the part of the Customer, its employees, contractors or agents, or any Third  Party User, in connection with the use of the Services; and
• any infringement or non-compliance by the Customer, any of its Related Corporations, or any Third Party User of any Law applying to the use of the Services; and
• any damage to or loss of any equipment, network or other tangible property of Delacon or any third party to the extent that such loss is caused by a negligent act or omission by the Customer its employees, contractors or agents, or any Third  Party User.

18.2     Customer’s indemnities under this Agreement are:

• continuing, separate and independent obligations of each indemnifying Party; and
• absolute and unconditional and unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the indemnifying Party.

19. Force Majeure

Neither Party will be liable or deemed to be in default of any obligation under this Agreement (except an obligation to pay money) for any default, failure or delay resulting directly or indirectly from a Force Majeure Event.

20. Breach and Termination of this Agreement

20.1     Delacon may, by giving written notice to the Customer, terminate this Agreement forthwith and without liability or prejudice to any rights or remedies existing at the date thereof if the Customer breaches this Agreement (including, but not limited to, any failure to pay an amount by the Payment Date for such amount) and either (i) the Customer has failed to remedy the breach within fourteen (14) days of receipt of a written notice from Delacon specifying the breach, or (ii) the breach is not capable of remedy.  

20.2     Either party may, by giving written notice to the other party, terminate this Agreement forthwith and without liability or prejudice to any rights or remedies existing at the date thereof, if an Insolvency Event occurs in respect of the other party (but subject to any restrictions under the Corporations Act 2001 (Cth)).

20.3     In this clause 20, “Insolvency Event” means the occurrence of any event of insolvency with respect to a Party, including:

• the suspension or cessation of the relevant party’s business activities;
  • the liquidation or insolvency of the relevant party (including the appointment of any liquidator);
  • the appointment of a receiver, administrator or trustee in respect of any property of the relevant party;
  • the assignment of any rights or other property by the relevant party for the benefit of its creditors;
• the making of any arrangements by the relevant party with its creditors; or
• any other act that shows or tends to show that the relevant party is insolvent.

20.4     In addition to its rights under clauses 20.1 and 20.2, Delacon may, by giving written notice to the Customer, terminate this Agreement and all Services provided under it forthwith and without liability or prejudice to any rights or remedies existing at the date thereof if:

• there is a Change of Control with respect to the Customer; or
• it becomes unlawful, or is likely to become unlawful, for Delacon to provide any or all of the Services to the Customer; or
• Delacon is unable to procure from the Carriers then utilised by it one or more services necessary for the provision of the Services.

20.5     Termination of this Agreement is without prejudice to any rights which have accrued prior to the date of termination.

20.6     The Agreement may be terminated by Delacon or the Customer for convenience at any time by giving the other party thirty (30) days’ written notice of such termination), via email or post.  In the case of the Customer, such written notice will be validly given only when Delacon receives from the Customer (via email) a copy of Delacon’s standard cancellation form, duly completed and signed on behalf of the Customer.  Customer may be liable to pay a cancellation charge in connection with any exercise of its rights under this clause 20.6, as further specified in the Agreement. 

20.7     Where Customer gives Delacon 30 days’ notice of the termination of the Agreement or any Service under clause 20.6,  Delacon reserves the right to immediately cancel any Service(s) being terminated by Customer at any time during the 30 day notice period, upon written or verbal notice to the Customer.

20.7     Where the Agreement is terminated under this clause 20, the Customer will be immediately liable to pay Delacon any Fee that has accrued under this Agreement but is not yet paid.

21. Confidentiality

21.1     The Customer agrees to keep confidential, and to ensure that its Related Corporations and any Third Party Users keep confidential, the following information (in any format, whether electronic or hardcopy, and whether disclosed before or after the date of this Agreement):

• all confidential information relating to Delacon’s business disclosed to Customer by Delacon (or any of its directors, officers; employees, contractors or agents), including but not limited to the details of the Services, the manner in which the Services function, and the manner in which Delacon arranges for provision of the Services (including Fees, charges, any discounts and any other financial information);
• all other confidential information and information which Customer knows or ought reasonably to be aware is confidential (regardless of its form and whether the Customer becomes aware of it before, on or after the date of this Agreement), disclosed to the Customer or any of its directors, officers; employees, contractors or agents by or on behalf of Delacon.

21.2     Customer must, at its own expense:

• ensure that at no time is any Confidential Information subject to unauthorised use or disclosure (which includes the copying of written or electronically recorded Confidential Information, other than for the purposes of the utilisation of the Services by the Customer); and
• immediately upon termination of the supply of Services by Delacon to the Customer, or at Delacon’s request, return the Confidential Information to Delacon and destroy all copies of such Confidential Information (including electronic copies).  However Customer may retain copies or extracts of Confidential Information: (a) in accordance with applicable Laws; or (b) in electronic format on standard system back-up media according to standard electronic back-up and archival procedures.  Customer will continue to be bound by its obligations hereunder with respect to any such retained material.

21.3     Customer will:

• not use any Confidential Information for any purpose other than exercising its rights and performing its obligations in connection with its utilisation of the Services;
• immediately notify Delacon of any actual or potential breach of this clause 21 bu Customer; and
• take all reasonable steps to prevent or stop a suspected or actual breach of this clause 21.

21.4     The obligations of confidentiality in this clause 21 do not extend to information that (whether before or after the date of this Agreement):

• is disclosed by Customer to any of its employees, if (i) such disclosure is necessary for the Customer to exercise its rights or perform its obligations under this Agreement, and (ii) the relevant employee is under an obligation to keep the disclosed information confidential; or
• must be disclosed under applicable Law.

21.5     The Customer agrees that any member of Delacon’s Support team, together with any person assigned to the Customer by Delacon in the role of Account Manager, may access:

• the Customer’s account with Delacon; and
• all data captured and stored by Delacon for the Customer in connection with the performance of the Services,

as may be necessary from time to time in order for Delacon to provide the Services, address any technical issues, manage the Customer’s account, provide the Customer with insights with respect to the relevant data, respond to any query from the Customer, or otherwise fulfil any obligation owed by Delacon to the Customer or meet any requirement specified by the Customer.

22. Marketing and Sales Activities

22.1     The Customer unconditionally authorises Delacon to use the Customer’s name and corporate logo for marketing purposes including, without limitation, the placement of the Customer’s name and/ or corporate logo on any list of Delacon clients appearing on, or to appear on, any Website, and/or in marketing material created by Delacon.

22.2     Notwithstanding the terms of clause 21, each party may issue press releases announcing the supplier-customer relationship between Delacon and the Customer, together with such other press releases as may be mutually agreed to from time to time. Each party will have the opportunity to review and approve each press release prepared by the other party before it is issued, provided that such approval must  not be unreasonably withheld or delayed.

23. Personal Information and call use and recording

Customer must:

• inform its customers or any third parties communicating with it using Delacon’s services that calls  may be subject to tracking, monitoring and (if applicable) recording, and that such tracking, monitoring and (if applicable) recording may include the customer’s (or third party’s) Personal Information; and
• ensure that its privacy policy allows it and/ or its suppliers and contractors to:
  • track, monitor, record (if applicable) and collect the Personal Information that is likely to be obtained during communications using Delacon’s services;
  • send such Personal Information to third parties for analysis; and
  • transfer such Personal Information to other countries for the purposes for which it was collected.

24. Restrictions

24.1     Throughout the Relevant Period, the Customer will not (and will procure that its Related Corporations do not), either on its/ their own behalf or on behalf of any person or in conjunction with any other person(s):

• solicit or entice away any person that is an employee or independent contractor of Delacon, or interfere with Delacon’s relationship with any such person; or
• solicit or entice away from Delacon any customer of Delacon, or interfere with Delacon’s relationship with any such person or entity.

24.2     In this clause 24, “Relevant Period” means the period consisting of: (a) the term of this Agreement, and (b) the twelve (12) months immediately following the expiry or termination of the Agreement.

24.3     The Customer acknowledges and agrees that this restriction is reasonably necessary to protect the connection between Delacon’s business and its clients, and that damages may not be an adequate remedy for any breach by Customer of this obligation.

• This clause 24 survives the termination or expiry of the Agreement.

25. Transfers of Account and Access

25.1     Transfer of Account from Current Supplier (“porting in”):

• Customer irrevocably and unconditionally authorises Delacon to complete and sign, on the Customer’s behalf and in its name, any form or other authority required by the Customer’s Current Supplier in order to transfer the Customer’s current account and/ or services as necessary to supply the Services.
  • Additional charges may apply for any successful or failed/rejected port-in of a telephone number. Customer should ensure that all complex services (including but not limited to line hunt, DSL, diversions, ISDN) are completely removed from a landline telephone number before requesting Delacon to port-in the number.  Failure to remove all complex services may result in the port-in being rejected by the Current Supplier.
  • It is the Customer’s responsibility to notify their Current Supplier of the change in provision of their Services and to arrange forthwith the removal or transfer of any relevant equipment.

25.2     Transfer of Account from Delacon to another supplier (“porting out”):

If the Customer wishes to transfer one or more Services to another supplier:

• it must complete Delacon’s standard porting form with respect to such request;
• for each number that the Customer requests Delacon to transfer, an administration fee in an amount equivalent to AUD 40 in the currency in which You pay Fees, plus Consumption Tax, will be payable to Delacon;
• upon completion of the transfer of a Service to another supplier, the Customer must notify Delacon that it is cancelling that Service with Delacon by completing, signing and returning Delacon’s standard cancellation form; and
• Customer will remain liable to Delacon for all changes billed or payable under the Agreement for any Service that is the subject of a transfer to another supplier (“port-out”) until such time as either:

(i)        the Customer issues a cancellation notice to Delacon regarding the relevant Service under clause 25.2(c); or

(ii)      the other supplier takes over full responsibility for the provision and billing of the relevant Service,

whichever is the later to occur.

25.3  The provision of Services ceases when:

• Delacon transfers the Customer’s account to another supplier and the other supplier takes over full responsibility for the billing of the relevant services; or
  • when the Agreement expires.

25.4     With respect to any transfer of Services that is subject to clause 25.2, if, after the date of such transfer, Delacon becomes aware of any other Fees duly incurred by the Customer on or before the date when Delacon ceased to provide the Services, then the Customer will, promptly upon receipt of Delacon’s invoice, pay to Delacon all such amounts.

25.5     Access:

• Customer is responsible for ensuring that its PABX or other network equipment is programmed, as  specified by Delacon.
• Customer will reasonably cooperate with Delacon and any Carrier involved in the provision of the Services to allow Delacon (and any such Carrier) to establish and supply the Services safely and efficiently. This includes following the reasonable requests of Delacon and any supplying Carrier to provide the personnel of such entities with safe and prompt access (upon reasonable notice) to relevant equipment, data and information, and personnel.

26. Schedules

Any provisions set out in the Schedules to these Terms & Conditions are incorporated into the Agreement in full and the parties must comply with the same.  A breach of such terms is a material breach of the Agreement.

27. Dispute Resolution

A party claiming that a dispute has arisen must notify the other party in writing giving details of the dispute.  When giving a notice of dispute under this clause 27, a party must act in good faith.  Within ten (10) business days following receipt of a notice of dispute under this clause 27, an authorised representative of each of the Customer and Delacon must meet and in good faith seek to resolve the dispute. Nothing in this clause prevents either party from instituting court proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a dispute.

28. General

28.1     Assignment: Customer must not assign or transfer any of its rights or obligations under the Agreement without Delacon’s prior written consent. Delacon may at any time assign or transfer any or all of its rights and obligations under the Agreement to a Related Corporation, by notifying the Customer in writing of the assignment or transfer.

28.2     Relationship:  The Agreement creates a relationship of vendor/purchaser between the parties. Nothing in this agreement constitutes a partnership, joint venture, or relationship of agency between the parties.

28.3     Severability: If a provision of the Agreement or a right or remedy of any part under this Agreement is invalid or unenforceable it will:

• be read down or severed to the extent of the invalidity or unenforceability; and
• not affect the validity or enforceability of that or the remaining provisions of the Agreement.

28.4     Entire agreement: The Agreement constitutes the entire agreement between the parties about its subject matter, and any previous agreements, understandings, negotiations and representations on that subject matter cease to have any effect.

28.5     Waiver:  No waiver of a right or remedy under the Agreement is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.   A single or partial exercise of a right or remedy under the Agreement does not prevent a further exercise of that or of any other right or remedy.  Failure to exercise or delay in exercising a right or remedy under the Agreement does not operate as a waiver or prevent further exercise of that or of any other right or remedy.

28.6     Notices: All notices must be sent in writing and either delivered in person, or sent by courier, pre-paid recorded delivery mail, or email. Notice is deemed to be given:

(a)         if delivered in person, at the time of delivery; and

(b)         if sent by courier or pre-paid recorded delivery mail, five (5) business days after being deposited with the courier or posted; and

(c)         if sent by email, at the time of transmission by the sender, unless the sender receives an automated notice generated by the sender’s or the recipient’s email server that the email was not delivered.

If delivery, receipt or transmission occurs on a day other than a business day, or after 5pm on a business day, the notice is deemed to be received at 9am the next business day.

28.7     Survival: Clauses 1, 6, 8, 9, 18, 20, 21, 24, 25.2, 25.3, 25.4, 27, 28.1, 28.3, 28.8 and this clause 28.7 shall survive the expiry or termination of the Agreement and remain binding on the Parties indefinitely.

28.8     Governing law and jurisdiction: This Agreement, the relationship between the parties and all rights and obligations arising under this Agreement  will be  governed by and construed in accordance with:

(a)         the laws of the state of Delaware, if Customer is incorporated or domiciled in the United States of America;

(b)         the laws of England and Wales, if Customer is incorporated or domiciled in in the United Kingdom or the European Union; and

(c)         the laws of New South Wales, Australia, if Customer is incorporated or domiciled in Australia or any other jurisdiction not covered by clause 28.5(a) or 28.5(b),

without having regard to the conflict of laws principles applying in any such jurisdiction.

The courts of the state or country specified in sub-clause (a), (b) or (c), as applicable, and the courts of appeal therefrom, will have the non-exclusive jurisdiction to hear any dispute arising under or in connection with this Agreement, and the parties agree to submit to such jurisdiction.

SCHEDULES

SCHEDULE A – SALESFORCE INTEGRATION SERVICE

1.           Salesforce Integration Service

1.1        The Customer acknowledges and agrees that it requires a current and legal license to use the Salesforce Platform, granted by salesforce. Inc. (“Salesforce“), in order to utilize the Delacon Call Tracking Salesforce Integration Application Service (the “Salesforce Integration Service“).

1.2        Following the end of any minimum term requirements applying to the Customer for a Salesforce Integration Service, the term of the Salesforce Integration Service will automatically renew for one month periods unless terminated by either party providing 30 days’ written notice to the other party.

1.3        The Customer acknowledges and agrees that it will be liable for all service fees in relation to the Salesforce Integration Service until that service is terminated in accordance with paragraph 1.2 of this Schedule, regardless of whether or not the Customer’s licence to use the Salesforce Platform has been suspended or terminated by Salesforce.

1.4        The Customer will contact Salesforce regarding any technical support required in relation to the Salesforce Integration Service.  In the event Salesforce is required to transfer the Customer’s data outside the Salesforce Platform, Salesforce will be entirely responsible for the privacy, security and integrity of that data, and Delacon will have no liability in connection such transfer.

SCHEDULE B – USE OF JAVASCRIPT CODE ON THIRD PARTY WEBSITES

1.           With Delacon’s agreement, Customer may acquire the Services other than for its own use (for example, if the Customer is a re-seller of the Services, or acquires the Services on behalf of a third party).

2.           In this case:

(a)         Customer may request from Delacon javascript code which the Customer may allow to be used on a third party website (for example, on its clients’ websites) as part of the Services.  Customer acknowledges and agrees that if it allows such javascript code to be used on a third party website, it will be solely responsible for the removal of that javascript code from such third party website. 

(b)         Customer acknowledges and agrees that Delacon will have no responsibility whatsoever for the removal (or deactivation) of any javascript code from any third party website.

(c)         Customer must indemnify Delacon in full from and against any and all claims or proceedings made or brought by a third party (including but not limited to any client of the Customer) against the Customer or Delacon as a result of Customer’s failure to remove the javascript code from any third party website.

SCHEDULE C – INTERNATIONAL CALL TRACKING NUMBERS

1            If the Customer orders one or more call tracking numbers in a country other than Australia (each an “international number”), Delacon will use its commercially reasonable efforts to obtain the international number/s as soon as practicable, and to work with the underlying Carrier on set-up and testing.  Customer agrees that the lead-time for the provision of international number/s should be approximately four to eight weeks (or such other timeframe advised by Delacon in writing). 

2.           Customer further agrees that the availability of each international number (and each type of international number depends on the underlying international Carrier and Delacon cannot guarantee the continued availability of any international number.

3.           Customer acknowledges and agrees that Delacon has no control over how any Carrier supplies international numbers and international telecommunication services.  Delacon does not guarantee the call quality of any international number, and nor does it represent or warrant that it will be able to rectify any call quality issue affecting an international number within a reasonable time or at all.

SCHEDULE D – AUTOMATIC PAYMENT AUTHORITY

1.           If Customer sets up an Automatic Payment Authority, Delacon will confirm the details of the “AutoPay” debit arrangement prior to the first drawing and will directly debit Customer’s nominated account. Delacon will make deductions on each Payment Date. If the Payment Date falls on a day that is not a business day Delacon will debit the Customer’s account on the following business day. 

2.           Delacon will keep information relating to the Customer’s nominated bank account or credit card account confidential, except where disclosure of such information is (a) permitted by law, or (b) required for conducting direct debits or processing credit card payments with the Customer’s financial institution or credit card provider, or (c) made in respect of a query, dispute or claim relating to any matter described in (a) or (b).

16.2 By signing an Automatic Payment Authority the Customer is authorising Delacon to arrange for funds to be debited from Customer’s nominated account. The Customer may alter its debit drawing arrangements at any time. Customer may dispute any debit drawing or terminate direct debit arrangement at any time by notifying Delacon in writing not less than 7 days before the next scheduled debit drawing. It is the Customer’s responsibility to ensure that: (a) there are sufficient clear funds available in its nominated account at all times, (b) the account it nominates permits direct debiting and the authorisation given to draw on the nominated account is identical to the account signing instructions held by the financial institution where the account is based, (c) it notifies Delacon if the nominated account is transferred or closed, (d) it pays Delacon by an alternative method if the direct debit arrangement is cancelled (whether by the Customer or Delacon) and (e) it checks its invoices against items in its bank account statement or credit card statement, and Delacon will have no liability or responsibility whatsoever in respect of any of the foregoing matters.