"Charges" means those charges payable from time to time by the Customer to Creative Telcom for provision of the Service including any reviewed Charges.
"Conditions" means these terms & conditions.
"Commencement of Service Date" means the date filled in by the Customer on the Service Application or the date of activation by voice contract. s
"Creative Telcom" means Creative Telcom ABN 55 114 934 520
"Customer" means the company, association, partnership, local, state or Commonwealth authority or other entity or private individual described in the Service Application.
"Designated User" means any person nominated by the Customer who is authorised to use the Service.
"Initial Set-Up Fee" means the initial set-up fee specified in the Service Application or Contract Agreement.
"Interest Rate" means the rate charged by Creative Telcom being 1.5% per month
"Rules" means the Creative Telcom Standard Rules as in force from time to time.
"Service Application" means the document in which the Customer applies for the Service to be contracted from Creative Telcom.
"Service" means the service or services provided by Creative Telcom to the Customer as described in the Service Application including where applicable interactive access to Creative Telcom's network (including computer resources, disk storage and computer communication facilities) and the Internet, and any other services contracted between Creative Telcom and the Customer as specified in the Service Application.
2. OUR CONTRACT WITH YOU:
As a customer of Creative Telcom these terms and conditions form the basis of our contract with you.
Our contract with you also includes your application or order form which you complete and provide to us. We may accept and rely on facsimile copy of the application or order form as if it was an original. You will be bound by a facsimile copy of the application or order form as if it was an original.
Our contract with you also includes our currently applicable price list. The price list may change from time to time, but we will notify you of any changes when they happen. Copies of the price list are available from us, upon request.
3. SERVICE DESCRIPTION
Services will be supplied to you through the carriers or networks (“ Carriers”) that we nominate in writing from time to time. You agree that we–
may change Carriers without reference to you and at any time ; and
have your express authorisation to notify any relevant Carrier in respect of and to effect any such change.
We do not warrant that we will be able to supply Services and we are not liable for any failure to provide all or part of any of the Services, but, to the extent and to the standard that Carriers provide Services to us, those Services will be provided by us to you. When your connection is disrupted, we will do our best to reinstate our Services to you as soon as we can.
Unless otherwise stated in the schedule to this agreement, we reserve the exclusive right to provide you with all long distance services from the date of this agreement.
When using the Services, you agree to–
comply with all statutes, regulations, by-laws or licence conditions of any government body; and
not breach any person’s rights or otherwise cause us or a Carrier loss, liability or expense.
Our obligations to provide the Services ceases when we transfer your account to another supplier and the other supplier takes over full billing of those services.
4 .CHARGES AND PAYMENT
You agree during the term of this agreement:
to be charged for the Services we provide to you, regardless of whether it is you who uses them, at our current prices from time to time ;
to pay us for all calls made using the 1414 access code (whether you use it by override code dialling (automatic or otherwise) or through pre-selection);
as our charges are exclusive of any taxes, that we can pass on to you the full amount of any taxes payable on the charges; and
to pay accounts for all of those charges (including taxes) by the date specified in the account (“Due Date”).
If you dispute in good faith an amount in the account, you must notify us in writing within fourteen days setting out reasons for the dispute and the amount in dispute. Notwithstanding any dispute as to any amount of any charge, you must pay the whole amount of each account by the Due Date.
If you do not pay the account by the Due Date, then we may charge interest at the rate of 1.5% per month or part thereof on the outstanding amount of the invoice and suspend all or part of your Services pending payment of outstanding amounts on the account. Nothing in this clause affects our rights to terminate this agreement under clause 9.
If payment of any Charges is overdue for 14 days or more Creative Telcom may suspend provision of the Service without notice.
If you do not pay the account by the Due Date, we also reserve the right (at our discretion) to adjust the prices you pay for the Services.
If you direct us to transfer any of the Services to another supplier, you will pay to us on receipt of an account under our normal payment terms -
all of our accounts up until the time we stop providing the Services; and
all other proper charges that we become aware of after the date of transfer that relate to the Services we provided to you.
If you terminate the Agreement within the minimum contract period specified in the Service Order Form, Creative Telcom reserves the right to charge the you the full amount of any minimum monthly fees and/or flat rate charges specified in the Service Order Form for the balance of the minimum contract period, early exit fees, and or the normal charge for setup or activation.
Invoicing: We will bill you on or around the 28thof each calendar month for the Services in accordance with our current charges as notified to you from time to time. We may vary invoice frequency at our discretion.
Method of Billing: Unless otherwise expressly stated in this Agreement, we will generally bill you in advance for periodic charges, connection and service fees (where applicable) and in arrears for usage charges, although this may vary in certain cases. We will endeavour to bill you within the next normal billing period for charges billed in arrears, but we reserve the right to bill you for those charges in later billing periods.
Ti me for Payment: All charges must be paid by the due date shown on the invoice.
When available, we may debit amounts directly from your nominated bank or credit card account as they become owing where you have chosen that method of payment. In any event, if you have provided your bank account or credit card details, where amounts remain outstanding after 14 days we may debit those amounts from your nominated bank or credit card account without further notice unless we have received written notice from you disputing those amounts in good faith. If a direct debit fails or is rejected, we reserve the right to pass on any charges that we may incur due to the failure or rejection.
Our charges to you may pass on any charges another Supplier charges to us (including increases and special or one-off charges) without notice to you.
You will be responsible for all charges for all Services used on your account, whether the use was by you or by another person, with or without your permission.
Other Charges: You will pay us in accordance with clause 4.10 any charge which any other Supplier or other person renders to us:
if you approach that other Supplier or person directly, or otherwise than through us; or
for connection or initiation of any Service or for cancellation of any Service.
Billing from other Suppliers: If you use an override code or access code to access services offered by another Supplier, you will be billed by that Supplier for charges you incur unless we have a separate arrangement in place for the Supplier to charge us directly, in which case we will pass on the charges to you in accordance with clause 4.12.
Interest: We reserve the right to charge interest on any part of the charges not paid to us by the due date. Interest, calculated daily, will be charged from the due date until payment at a rate 1.5% per month.
Suspension: We reserve the right to suspend provision of Services to you, where charges owing to us or any amount owing remains outstanding after 14 days. If we suspend or terminate the Services for unpaid charges or any other reason, subsequent fee’s will be incurred for Barring, Disconnection and Reconnection.
Unclaimed amounts: In the event that your account is terminated and monies are owed to you by us, we will notify you of these amounts. In the event you do not claim those monies within 1months of being notified we will retain the money and you agree that you will have no further claim in relation to those monies.
Costs incurred in Recovery of Overdue Amounts: If we incur costs in recovering overdue amounts from you, including (without limitation) mercantile agents' costs, disconnection of services costs, costs incurred in commencing legal action such as service fees and search fees, we reserve the right to recover these amounts from you in addition to the overdue amounts.
Dishonoured cheques: Creative Telcom reserves the right to terminate the Agreement without notice to you in the event:
you have not paid amounts owing to us in accordance with this clause; and
a cheque provided by you in payment of that invoice is dishonoured without a valid explanation being provided by you
We will also charge (as per current scheduled fees & charges) you a dishonour fee if a cheque used to pay a bill is dishonoured.
Security Bond: We may require you to lodge a security bond as a condition of us providing Services to you. You authorise us to deduct from that bond any amounts remaining owing to us 30 days after the date of an invoice. If you have paid all of our invoices on time for 12 consecutive months, we may either refund the bond or credit it to your account. The amount of the security bond will be no greater than the credit limit described in clause 4.22.
Credit Limit: We may from time to time set a credit limit for the provision of the Services to you. You will be notified of this credit limit and any variation to it. If you exceed this credit limit, we may restrict the Services available to you without notice.
GST: Unless expressly stated otherwise, the charges payable for the Services under this Agreement are exclusive of GST. You must pay to Creative Telcom in addition to the charges for the Services, an amount equal to any GST payable on the supply of the Services. That additional amount is payable at the same time as any part of the charges for the Services is payable. Creative Telcom will issue a tax invoice to you for the supply of those Services at or before that time
5. AMENDMENTS TO TERMS AND CONDITIONS
Without limiting clause 3.1, we may vary, alter, replace or revoke any of these terms and conditions effective upon the expiry of 14 days written notice from us. Updated Conditions are available in the public domain by accessing our web site at creativetelcom.com.au . We may interpret your ongoing use of the Services after that date as constituting your acceptance of the variation, alteration, replacement or revocation.
6. CREDIT CHECK
Prior to our accepting your application, you have provided to us all information relevant to our assessment of your credit rating. You have consented to the following:
our obtaining from a credit reporting agency a credit report containing personal information about you;
our giving to and seeking from any credit provider name d in a credit report or in your application, information in relation to your credit rating including without limitation any information about your credit worthiness, credit history or credit capacity that credit providers are allowed to give or receive from other credit providers under the Privacy Act 1988;
our making independent enquiries of third parties concerning your financial standing and for this purpose you have authorised and permitted such third parties to supply such information regardless of any confidentiality or privilege which applies to the information sought; and
our providing any information we obtain about you to the relevant Carrier.
7 .TRANSFER OF SERVICES
When you transfer any services (“ Transferred Services”) from a Carrier, a telecommunications service provider or equipment supplier who supplies telecommunications services or equipment to you at the time of signing this agreement (“ Current Supplier”) to us, you authorise us to sign on your behalf and in your name any forms required by the Current Supplier to transfer the Transferred Services as we direct.
You agree to immediately pay to the Current Supplier any amounts owing for the Transferred Services up to the date of the transfer.
8. LIMIT ON LIABILITY
We do not exclude or limit – the application of any provision of any statute (including the Trade Practices Act 1974, the Privacy Act 1988 or the Telecommunications Act 1997) where to do so would contravene that statute or cause any part of this clause 8 to be void; or
direct losses and damages which arise only as a result of our gross negligence (which means where we commit an act or allow an omission to occur in reckless disregard of the consequences of the act or omission).
Except where clause 8.1 applies, we exclude all statutory liability, tortuous liability (including but not limited to liability in negligence), conditions and warranties implied by custom, the general law or statute, liability for all direct, economic, consequential or indirect losses, expenses, damages and costs incurred by you, arising out of or relating to the Services, any failure to supply or delay in supplying the Services or out of or relating to this agreement.
Including, but not limited to, liability for gross negligence and except to the extent of clause 8.1(a), we are not responsible or liable for any indirect consequential or economic damages, including, without limitation, loss of income or profit or loss of actual potential business opportunities.
Our liability to you for any breach of any implied provision of this agreement (other than an implied warranty of title) is limited, at our option, to refunding the price of the goods or Services in respect of which the breach occurred, or to providing, replacing or repairing those goods or providing those Services again.
We are not liable to you for any delay in the connection or failure in the operation of the Services.
You acknowledge that any liability of any Carrier to you in relation to the Services is governed by the terms and conditions on which that Carrier from time to time supplies that service to its own retail customers.
9. TERM OF AGREEMENT
This agreement will commence on the date of its signing by us.
We may immediately terminate this agreement by written notice at any time if, without our prior written consent: you breach any term or condition of this agreement; a receiver or receiver and manager is appointed over any of your property or assets; a liquidator or provisional liquidator is appointed to you; you become bankrupt; you enter into any arrangements with your creditors; you assign or otherwise deal with your rights under this agreement; you cease to carry on business; or there is a material change in your direct or indirect ownership or control.
We may also immediately terminate this agreement at any time by written notice if the Carriers cease to provide necessary services to us.
If we terminate this agreement in accordance with this clause and a Carrier arranges to supply you services other than through us, you acknowledge that–
the Carrier may not be able to make those arrangements immediately; and
once the Carrier has made arrangements, the services acquired by you from the Carrier will be acquired on the Carrier’s then current tariffs and terms and conditions and the Carrier will bill you accordingly.
Without limiting clause 6.1, you agree to provide us with any information we request in connection with our providing the Services to you under this agreement.
You authorise and consent to the following:
our conducting a physical audit of the Services and any equipment supplied in respect of the Services should we consider it necessary;
our exchanging with Carriers all information about you and the Services provided to you in our possession or control including, but not limited to, your name , billing address, street address, relevant telephone numbers, any information obtained by us for the purpose of your application and this agreement;
the Carrier exchanging with us any information in the Carrier’s possession or under its control in relation to the Services including, without limitation, all your records and, in particular, exchange line details, account information, call charge records and call event records; and
ours and the Carrier’s use of the information referred to in paragraphs (b) and (c) of this clause.
You will keep confidential all information supplied by us or the Carriers and we will keep confidential all information supplied by you, except as provided by clauses 6 and 10.
Your rights under this agreement are personal. You must not assign or attempt to assign any right or obligation under this agreement without our written consent. We may assign all or any of our rights and obligations under this agreement at any time by notifying you in writing.
13. WARRANTY OF AUTHORITY
Any persons signing this agreement on your behalf warrant that they have full power and authority to bind you in respect of this agreement.
14. OTHER EQUIPMENT
Where you have PABX or other network equipment, you must ensure that it is program me d as we specify.
Where you have PABX or other network equipment, we may undertake programming as we specify at your expense, charging these services to you account.
Where you have equipment on premises you occupy which is used by another supplier to provide you with services, we will disconnect that equipment when you transfer the services to us and we connect our Equipment (if any). You must immediately notify that supplier that you have transferred your services to us and arrange for them to remove their equipment from the premises.
Ownership of equipment supplied by Creative Telcom to the customer or the Customers representative does not pass to the customer until payment has been made in full.
Any notice, demand, consent or other communication required to be given to either party must be delivered personally or sent by prepaid mail or by facsimile to the address of the other as last notified. A notice shall be regarded as having been given:
a) when delivered if sent by hand; or
b) the business day three days following posting if sent by post; or
c) the business day following the date of transmission if sent by facsimile; or
d) the business day following the date of transmission if sent by electronic mail.
The Agreement shall endure to the benefit of and be binding upon the successors, assigns, heirs, executors and administrators of the parties.
Clauses 3.4, 4.6, 6, 8, 11, 13, 14.4, 15.2 and 15.5 shall survive the expiration or termination of this agreement.
These conditions and the other documents comprising the Agreement constitute the full and entire understanding between the parties with regard to the Agreement. Neither the Agreement nor any term of it may be amended or any term waived except in writing signed by the parties.
This agreement shall be governed by and construed in accordance with the law of Victoria and the parties hereby submit to the non-exclusive jurisdiction of the courts of that State.
16. FORCE MAJEURE
Neither party shall be liable for any delay or failure to perform its obligations other than the Customers obligations to pay the Charges pursuant to the Agreement if such delay or failure is due to Force Majeure.
If a delay or failure of a party to perform its obligations is caused or reasonably anticipated by Creative Telcom due to Force Majeure, the performance of that Party's obligations may be suspended by Creative Telcom.
In the Agreement "Force Majeure" means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under the Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disasters, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, revolution and strikes.
This agreement contains yours and our entire understanding to the exclusion of any and all prior or collateral agreement or understanding relating to the Services, whether oral or written. If any part of this agreement is found to be invalid or of no force or effect, this agreement shall be construed as though such part had not been inserted and the remainder of this agreement shall retain its full force and effect.