Ucomm Cloud Services - Terms and Conditions
Part A - The Goods and Services
1. Dealing with the Goods
1.1 The Goods always remain our property. You only have a right to use them.
1.2 You acknowledge that when we purchase the Goods, if the Supplier issues an invoice for the Goods in your name, you are invoiced as our agent and you will have no rights to the Goods other than as set out in this agreement.
1.3 You undertake to: (a) keep the Goods in your possession at all times; (b) not grant any Person any interest or Security Interest in the Goods or this agreement; (c) tell us promptly if the place where the Goods are used or ordinarily kept is changed from the address in the Tax Invoice; (d) obtain and maintain at all times all licenses or registrations legally required in connection with the Goods; (e) ensure that any replacement part becomes our property and is also subject to the Security Interest you grant under this agreement;
(f) protect our interest in the Goods, including making it clear to others that we own them; (g) if we ask, obtain from any Person with an interest in any premises on which the Goods are located or used a written acknowledgment of our ownership of, and Security Interest in, the Goods on terms acceptable to us; (h) not place, or allow to be placed, any plates or marks on the Goods that are inconsistent with our ownership or the Security Interest you grant under this agreement; (i) if we ask, affix a plate or sign to the Goods we approve that declares our interest in the Goods and not remove or change that plate or sign (or allow its removal or change) unless we consent; (j) not to alter any identifying marks (such as a serial number) on the Goods; (k) not, without our consent, permit any Goods to become a fixture or an accession to anything; (l) give reasonable assistance to us so that we receive good title to the Goods, free from any Security Interest (except the Security Interest you grant to us under this agreement), upon paying the purchase price to the Supplier; and (m) promptly notify us if you change your address.
2. Delivery and installation
2.1 You are responsible for: (a) receiving delivery of the goods; (b) installing the goods unless installation services are purchased; and (c) having them put in good working order.
2.2 You will be taken to have accepted the Goods when you obtain them under clause 2.1.
2.3 The term under this agreement will be taken to commence on the Commencement Date even though you might accept the Goods under clause 2.2 on a later date.
2.4 The Gross Instalments may change if any items are added to or replace the Goods.
3.1 You must use the Goods and Services:
(a) only in your business operations to which an Australian Business Number has been allocated;
(b) for the purpose for which they are designed;
(c) in accordance with the manufacturer’s and Supplier's specifications; and
(d) in compliance with all laws that apply to them or their use.
4. Usage Restrictions
4.1 You shall use the Services solely for your own internal business use only and not as agent or on behalf of any third party;
4.2 You shall adhere to all government rules and regulations if you use the Services in a telemarketing or research capacity including but not limited to:
(a) When telemarketing and research calls cannot be made;
(b) Information that must be provided during a telemarketing or research call;
(c) When calls must be terminated;
(d) Use of calling line identification; and
(e) Adherence to the Do Not Call Register Act 2006 (the DNCR Act)
4.3 You shall not use or access the Services for:
(a) Any fraudulent, criminal, defamatory, harassing or tortious purpose
(b) Participating in or promoting any illegal activity;
(c) Breaching, violating or infringing intellectual property, privacy or other rights, or misappropriate the property of, any third party;
(d) Transmit misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value; or
(e) Transmit or broadcast unsolicited, or “junk” or “spam,” marketing or promotional materials or messages through pre-recorded voice messages, SMS, facsimile or other means, in breach of any applicable Laws;
4.4 You shall, in any instance where You utilize Call Recording Services, adhere to all government acts and laws regarding the recording of telephone conversations.
5. Emergency Services
5.1 Dialing 000 for emergency access in Australia is supported and can be accessed free of charge if the service is fully operational and accessed within Australia. There is no registration processed required for emergency number dialing access however, You understand and acknowledge that there may be some limitations as set out in the following paragraphs;
5.2 If you use the Service outside Australia, You will not be able to call the Emergency Numbers in the country where You are located, or such calls may be routed to an incorrect answering point;
5.3 If there is a Service outage for any reason, such outage may prevent access to Emergency Number dialing, such as, but not limited to, electrical outages and broadband service outages;
5.4 You must register with Ucomm Group the primary physical location where the Service will be used. Your location will be registered as a part of subscribing to the Service. It is Your responsibility to maintain the accuracy of Your location address and advise us if there are any changes. If You do not update Ucomm Group with changes to the location of where the Service is being provided, it may or may not be possible for emergency operators and authorities to identify Your location and phone number when You dial the Emergency Number. Location information of Your primary office as notified to Ucomm Group will only be provided to emergency services; extension information may not be provided to emergency services.
5.5 When You dial the Emergency Number You will need to state Your location and phone number promptly and clearly, as emergency operators and authorities may not have this information. The emergency operator may ask for specific information to correctly transfer Your call to a local emergency services department such as police, fire brigade, rescue, coastguard, etc.
5.6 Emergency operators and authorities may or may not be able to identify Your phone number in order to call You back if the call is unable to be completed, is dropped or disconnected, or if You are unable to speak to tell them Your phone number and/or if the Service is not operational for any reason. Emergency operators and authorities may also not be able to hold Your line open in the event You hang up.
5.7 You agree to inform users of the Service of the above limitations and You understand and accept that You should always have an alternative means of accessing emergency services than through Ucomm Group’s Service.
6. Maintenance of the Goods
6.1 You must: (a) take care of the Goods and keep them in good condition; and (b) ensure that they are serviced and maintained in accordance with the manufacturer’s and Supplier's specifications.
6.2 Only qualified technical/service specialists may carry out any repairs to the Goods in strict accordance with the manufacturer’s specifications.
6.3 All spare parts used in connection with the Goods must be manufactured or approved by the manufacturer.
7.1 You must allow us or our representative at any time with reasonable notice to enter the place where the Goods are kept or used to: (a) inspect their condition; (b) check your compliance with the terms of this agreement; or (c) exercise any of our rights under this agreement.
Part B - Installments, Costs and other amounts
8.1 You must pay Gross Installments in full on each Payment Date. Once paid, these amounts are not refundable for any reason.
8.2 If a Payment Date: (a) falls on a day of the month that does not exist, the Payment Date will be the last Business Day of that month; or (b) is not a Business Day, the relevant date will be the preceding Business Day.
8.3 The Commencement Date and Payment Date/s are estimates only. If there is any change, we will notify you of the updated Commencement Date and Payment Date/s in our settlement advice to you and send an updated Tax Invoice.
8.4 If you obtain the Goods before the Commencement Date, you must also pay for the lease of the Goods for the period between the date you obtain them and the Commencement Date calculated as a daily rate of the Gross Installments.
9. Costs, Taxes and fees
9.1 When we ask you for it you must pay us: (a) all Taxes indicated in the Tax Invoice; (b) Costs related to this agreement and any Security; (c) any increase in any Taxes; (d) our Costs in relation to the dishonour of any Payment (currently $50 excluding GST); and (e) all other amounts payable under this agreement.
9.2 If GST is imposed on any supply we make under this agreement, you must pay us the consideration payable for the supply and the relevant amount of GST.
10. No deductions from payments
You must not withhold nor make any deduction from any payment under this agreement for any reason including because: (a) the Goods are damaged, defective, do not operate or are not in your possession; (b) of any failure to supply any spare parts, consumables, services or maintenance in connection with the Goods; or (c) you claim to have any set-off, counterclaim or other right against us or any other Person.
11. Overdue amounts
11.1 You must pay overdue interest calculated daily on any amount which you do not pay on time for the period it is unpaid.
11.2 The interest rate to be applied under clause 9.1 is the lower of: (a) the corporate overdraft reference rate last published by the Commonwealth Bank of Australia; (b) if no such rate is published for the relevant month, the rate is to be 1% per month; and (c) such other rate as reasonably determined by us.
12. Suspension of Service and Acceleration
12.1 If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, We may, without limiting Our other rights, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct payment whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue before suspending services to you.
13. Payment Disputes
13.1 We will not exercise Our rights under section 10.1 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith are cooperating diligently to resolve the dispute.
14. Early Termination, Cancellation and Disconnect Fees
14.1 You may request the early termination, cancellation or disconnection of Services at any time however, the following terms below will apply.
14.2 For all Internet, WAN, MAN links, Software Subscription and Hardware Subscription services provided, if You terminate the service, You shall pay Ucomm Group, an amount equal to the monthly payment (including applicable Taxes), multiplied by the number of months remaining in the terminated service contract term as of the date of termination.
14.3 For all Professional Services fees, You shall pay Ucomm Group, for all delivered services. Any undelivered Professional Services will not be charged.
14.4 If any hardware purchases have been made up-front and not part of a Hardware Subscription, Ucomm Group’s general Terms and Conditions will apply which may incur re-stocking fees if a refund is available.
Part C - Loss, insurance and indemnities
15. Loss or damage
15.1 You must tell us if any Goods are: (a) stolen;
(b) lost; (c) destroyed; (d) damaged beyond practical or economic repair; or (e) otherwise unrecoverable.
15.2 We are entitled to all amounts which any insurer or other Person pays you because any event in clause 10.1 happens. You hold on trust for us any such amounts which you receive.
15.3 If any event in clause 10.1 happens, you must pay us the Termination Value (calculated as at the date of the relevant event) no later than on the next Payment Date.
15.4 This agreement terminates in relation to the relevant Goods when you make payment under clause 10.3.
15.5 If the Goods are damaged but not to the extent that clause 10.1(d) applies, you must promptly: (a) notify us; and (b) restore them to good condition.
You must insure at all times: (a) for an amount which is the current replacement value of the Goods from time to time against loss or damage to the Goods caused by fire, theft or accident; and (b) against any other insurable risk which is commonly insured for property of a similar nature to the Goods including personal injury or damage to property, caused by the Goods or their use or which we reasonably require.
16.1 The insurances must: (a) be in a form and substance satisfactory to us with an insurer licensed by the Australian Prudential Regulation Authority; and (b) note our interest in the Goods.
16.2 You must not without our consent: (a) do or fail to do anything which would allow the insurer to refuse or reduce a claim; (b) vary the insurances; or (c) enforce, conduct, settle or compromise any claim in relation to the insurances.
16.3 You must give us evidence of the insurance policies and payment of premiums whenever we ask for them.
16.4 If you do not comply with clause 11.4 we may obtain insurance covering our interest in the Goods from any insurer of our choice. This insurance will not cover you against any risks. If we obtain this insurance you will pay us: (a) an amount equal to our Costs of obtaining; and (b) our fees for our services in obtaining and maintaining such insurance (Insurance Administration Charge). You will pay the Insurance Administration Charge in instalments allocated, at our discretion, to some or all of the remaining Gross Instalments, except you must pay any unpaid Insurance Administration Charge immediately if the Termination Value becomes due for payment under clause 10.3 or 15.3.
16.5 Insurance proceeds from any insurance claim must be at our sole discretion used to: (a) replace or repair the Goods; or (b) applied towards payment of the Termination Value.
17.1 You indemnify us against, and must pay us for, any liability, loss, Costs (reasonably incurred) and Taxes we suffer or pay arising from or incurred in connection with the Goods or this agreement including: (a) your breach of any term or condition of this agreement including failure to comply with any obligations or conditions; (b) us seizing or storing the Goods; (c) us being the registered owner of the Goods; (d) a Person being injured or killed or property being damaged, directly or indirectly, by the Goods or their use; (e) any claim by a third party for any reason being made against us in connection with the Goods or their use; (f) this agreement terminating before the end of the term for any reason; (g) our exercise or attempt to exercise any right or remedy under this agreement; or (h) any representation or warranty you give proving to be incorrect.
17.2 Each indemnity: (a) is a continuing obligation, separate and independent from all your other obligations; and (b) continues after this agreement ends or is terminated. It is not necessary for us to incur expense or make payment before we enforce a right of indemnity.
Part D - What happens at the end of the term?
18. End of Term
18.1 At the end of the term of this agreement, you must return the Goods to us in accordance with clause 19.1.
18.2 If you do not return the Goods to us when required, then, in addition to your obligations under any other provision in this agreement: (a) you must pay us Gross Instalments (or other agreed rate) and related Taxes for each month or part thereof until the day on which you do return the Goods; and (b) your obligations under this agreement relating to the use, maintenance, repair and insurance of Goods continue to apply during any such period.
18.3 Payment under clause 18.2 does not: (a) give you any further rights or release you from your obligations; or (b) prevent us from exercising our rights in relation to the Goods or under this agreement.
19. Return and sale
19.1 You must return: (a) the Goods to us in good working order and repair (fair wear and tear excepted) to a place we nominate at your expense; and (b) any relevant certificates of registration, service records and a signed transfer of those certificates to us.
19.2 On return of the Goods, we or our agent will complete a return condition report specifying whether the Goods comply with clause 19.1.
19.3 If the Goods do not comply with clause 19.1, you must pay us the Costs necessary to bring the Goods to a condition where they do. We will invoice you for these amounts and full payment will be due on the terms of the invoice.
19.4 If you do not return the Goods when you are required to under this agreement, we may enter the place where the Goods are located and take possession of the Goods.
19.5 As soon as reasonably practicable after any Goods are returned to us under this agreement we must offer them for sale at a public auction or by such other method as we reasonably determine without any warranty on the condition or suitability of, or our title to, the Goods.
19.6 We must pay you the gross proceeds we receive from selling any Goods less: (a) all Costs we incur in selling; (b) the Residual Value; and (c) any amounts you owe us under this agreement.
19.7 If the gross proceeds are less than the sum of the amounts in clause 19.6, you must pay us the difference.
Part E - Repudiation and termination
20. Repudiation and Termination
20.1 The fundamental provisions of this agreement are that you must: (a) pay all money due on time and as required under any agreement you have with us or any of our Related Bodies Corporate; (b) comply with clauses 1.3, 4, 10 and 11; and (c) ensure that all representations and warranties you give under this agreement are true and correct.
20.2 You will repudiate and we may terminate this agreement if: (a) you breach any fundamental provision of this agreement; (b) your conduct indicates that you no longer intend to be bound by this agreement; (c) we believe you or another Person has acted fraudulently in connection with this agreement, any guarantee or a Security; (d) an event of default (however defined) occurs under, or you repudiate, any other loan, leasing, hiring or financing arrangement to which you are a party; (e) you are a company, the Person who at the date of this agreement Controls you ceases to Control you; (f) for any reason, without our prior consent (not to be unreasonably withheld), any company of which you are a Related Body Corporate under a Deed of Cross Guarantee entered into in accordance with ASIC Corporations (Wholly- owned Companies) Instrument 2016/785 (whether entered into before or after you execute this agreement) ceases to guarantee your debts; (g) you become Insolvent, cease to carry on business or a material part of it, or an order is made or a resolution is passed for an arrangement with creditors for your winding up; (h) we on reasonable grounds believe that your financial circumstances have changed in a way which may have a material adverse effect on your ability to meet your obligations under this agreement or any document entered into in our favour; (i) your primary business changes substantially; (j) we believe on reasonable grounds that urgent action is necessary to protect the Goods; (k) you do not comply with any special provisions contained in the Tax Invoice or annexures; (l) when we ask for it, you do not give us information about your financial position (including any financial statements we request), the Goods and anything else you are required to tell us under this agreement; or (m) we believe on reasonable grounds that you disposed of any Goods, without our consent, or that you intend to do so.
20.3 On termination of this agreement, you must immediately: (a) return the Goods to us in accordance with clause 19.1; (b) pay us the Termination Value; and (c) pay us any other amounts you owe under this agreement.
20.4 You acknowledge that the Termination Value constitutes liquidated damages and is a genuine estimate of our loss of bargain arising from your breach of this agreement.
Part F - What you acknowledge
21. About the Goods
21.1 You acknowledge that: (a) you alone are responsible for examining and satisfying yourself in relation to the Goods before accepting them, including the validity of any manufacturer's or Supplier's warranties or guarantees; and (b) we have not made any representation, warranty or undertaking in relation to the Goods including in relation to their condition, quality, safety or suitability or fitness for your purposes.
22. About this agreement
22.1 You acknowledge that: (a) you have not relied on our skill or judgment in entering into this agreement; (b) we are entitled to complete blanks and correct any clerical errors in the Tax Invoice;
22.2 we have made no representation in relation to the tax treatment of any payments under this agreement; and (d) we may pay commission, fees or other remuneration to any broker, agent, dealer or other Person who introduces you to us or us to you, or who offers services (including any insurance arrangements) in connection with this agreement. Whether we pay an amount to such Person or not, they are not our agent and we are not liable for any of their actions or omissions.
22.3 You agree that: (a) we may enter into this agreement as principal or agent; (b) we may transfer or assign our rights in the Goods or under this agreement without your consent; and (c) you may not transfer or assign your rights in the Goods or under this agreement without our prior written consent.
23. About warranties and legal rights
23.1 You warrant that: (a) you will not breach any law or obligation to any Person in entering, and you have obtained all necessary authorisations to enter, into this agreement or any transaction under it or perform obligations under it; (b) your obligations under this agreement are valid, binding and enforceable against you; (c) you benefit by entering into this agreement and any transaction under it; (d) you will do everything we ask to bind you or protect our rights or remedies under this agreement; (e) all information you give or is given on your behalf to us is correct and not misleading; (f) you have not withheld any information that might have caused us not to enter into this agreement; (g) you are not and have never been Insolvent; (h) you have power to carry on your business; (i) there is no pending or threatened court or other proceeding in which a decision against you would affect your ability to comply with your obligations under this agreement; (j) unless you have told us otherwise, you do not enter into this agreement as trustee of any trust; (k) to the full extent permitted by law, all express and implied terms, conditions and warranties other than the ones set out in this agreement are excluded; (l) we are not liable for any injury to or the death of any person or loss or damage to property arising from the possession or use of the Goods; and (m) whether or not the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth) or any law to a similar effect applies, our liability for anything in relation to the Goods, their possession or use, including damage or economic loss to anyone, is no more than to: (i) replace or pay for the replacement of the Goods with the same or equivalent goods; or (ii) repair or pay for the repair of the Goods. If the Supplier has given us warranties for the Goods, you may make any claim on the Supplier which we could have made.
23.2 We may, without notifying you: (a) debit any account you hold with us any amount payable by you under this agreement; (b) set off any amount payable by us to you against any amount payable by you or any of your Related Bodies Corporate to us or any of our Related Bodies Corporate on any account; and (c) do anything which you should have done under this agreement but which we consider you have not done or have not done properly.
23.3 You acknowledge that: (a) we may exercise a right, remedy or power in any way we consider appropriate; (b) if we do not exercise a right, remedy or power at any time, this does not mean that we cannot exercise it later; (c) we are not liable for any loss caused by the exercise, attempt or failure to exercise, or delay in exercising, a right, remedy or power; (d) our rights, remedies and powers under this agreement are in addition to any other rights, remedies and powers at law; (e) we are not liable to you for any indirect or consequential loss; (f) under law, a trustee in bankruptcy or liquidator may ask us to repay any amount we receive in connection with this agreement. If we repay any amount, we may treat the amount as if it had not been made by you; (g) we may apply any amount we receive towards meeting any part we choose of the amounts you owe us; (h) any present or future law that varies your obligations under this agreement is excluded to the extent allowed by law if it affects our rights or remedies adversely; (i) the content in any notice which we give you regarding any matter under this agreement is prima facie accurate, unless you prove it to be false; and (j) any termination under Part E does not affect any other right or remedy we have for amounts due to us which remain unpaid.
24. If you are a trustee
24.1 If you are a trustee, you warrant that: (a) you have the power to enter into and bind all trustees and the trust under this agreement; (b) you have the right to be indemnified out of the trust for your obligations under this agreement; (c) no action has been taken or proposed to remove you as trustee of the trust or terminate the trust; (d) any trust deed or other document that you give us is true, complete and current; (e) you have complied with the trust deed; and (f) unless otherwise expressly stated, you enter into this agreement in your own right and as trustee and you are jointly and severally liable under this agreement in both capacities.
24.2 As trustee, you: (a) agree to do everything necessary to bind yourself and your successors under this agreement; (b) must ensure that, without our consent: (i) you will not retire, cease to act or be removed; (ii) the trust is not terminated;
(iii) the trust deed is not changed; and (iv) the trust fund is not mixed with other property; and (c) indemnify us against any liability, loss, Costs and Taxes incurred in connection with your failure to comply with any of your obligations under this agreement or any statement in clause 19.1 being inaccurate.
Part G - General provisions
25. General Provisions
25.1 A party may give any notice in writing by: (a) post; (b) facsimile; (c) email; or (d) delivery, to the party’s last known address or registered office.
A notice is taken to be delivered if it is: (a) delivered in person, at the time of delivery; (b) sent by post, on the third Business Day after posting; (c) sent electronically, upon receipt by the sender of an acknowledgment that the communication has been properly transmitted to the recipient.
25.2 A term of this agreement, or a right created under it, may only be waived or varied in writing signed by the party or parties to be bound.
25.3 This agreement contains all the terms and conditions between you and us and replaces any prior agreement, representation or warranty about its subject matter.
25.4 This agreement is governed by the law of New South Wales. The parties submit to the non- exclusive jurisdiction of the courts of New South Wales and courts of appeal from them.
Part H - Definitions and interpretation
Business Day means any day (other than a Saturday or a Sunday) we are open for business in the place where we sign this agreement.
Commencement Date means the commencement date specified in the Tax Invoice.
Control has the meaning set out in section 50AA of the Corporations Act 2001 (Cth).
Costs means any fees, charges, expenses (including in connection with advisers), fines and penalties and legal fees and expenses (on a full indemnity basis).
Goods means the goods listed in the Tax Invoice including: (a) any replacement, accessory or addition fitted at any time; and (b) any rights in connection with them.
Gross Instalments means the Gross Instalments stated in the Tax Invoice.
GST means any goods and services tax imposed in Australia.
Insolvent means bankrupt, insolvent or insolvent under administration (each as defined in the Corporations Act 2001 (Cth)), in receivership, in receivership and management, in liquidation, in provisional liquidation, under official management or administration, wound up, subject to any arrangement, assignment or composition or protected from any creditors under any statute.
Payment Date means the first date that Gross Instalments are due and each subsequent date calculated by applying the intervals stated in the Tax Invoice.
Person includes a firm, partnership, committee and incorporated and unincorporated bodies.
PPS Law means each of the PPSA and the PPS Regulations, and any related amendment made at any time to any other legislation.
PPS Regulations means the Personal Property Securities Regulations 2010 (Cth).
PPSA means the Personal Property Securities Act 2009 (Cth).
Related Body Corporate has the meaning given in the Corporations Act 2001 (Cth).
Residual Value means the residual value of the Goods we assumed in calculating the instalments at the inception of this agreement.
Security means: (a) the Security Interest granted under this agreement; (b) any guarantee given to us in connection with this agreement; and (c) anything in substitute of or additional to those stated in paragraph (a) or (b).
Security Interest means a security interest under the PPSA and any other interest or arrangement of any kind that in substance secures the payment of money or the performance of an obligation, or that gives a creditor priority over unsecured creditors in relation to any property.
Serial Numbered Property means any personal property which (under the PPS Law) may or must be described by serial number in a registration.
Supplier means the Person from whom the Goods are purchased.
Tax means taxes, levies, imposts, deductions, charges, withholdings, GST and stamp and other duties imposed by any authority.
Termination Value of any Goods on a day, means the sum of: (a) the Gross Instalments (including the Residual Value) which are still to fall due until the end of term; and (b) any amounts that are due but unpaid.
we, our and us refers to the party set out in the header of these terms and conditions.
you and your refers to the Customer named in the Tax Invoice.
27.1 In this agreement, a reference to: (a) including and similar expressions indicate what is included without limiting what else might be included; (b) a document includes any variation or replacement of it; (c) any law includes any consolidations, amendments, re-enactments or replacements of any of them at any time; (d) any thing includes the whole and each part of it; (e) the singular includes the plural and vice versa; (f) any party includes its permitted successors and assigns; and (g) unless the context requires otherwise, all relevant terms have their meaning under the PPS Law.
If a party to this agreement consists of more than one person, or a term is used to refer to more than one party, an obligation of those persons is joint and several and a right of those persons is held by each of them severally.