TERMS OF SERVICE

These Standard Terms and Conditions apply to services supplied to businesses by Cloud Kitchen Pty Ltd (ACN 143 780 778)

1. THE AGREEMENT

An agreement is formed when you apply to acquire a service from us and we accept your application. The application may be made over the phone, or by completing an online ordering process or by way of accepting a quote for services. You warrant that you are over 18 years of age and legally entitled to enter into the agreement on behalf of the entity nominated on the application.

i. The agreement will be made up of:

a. Your application.
b. The service description (if any)
c. These Standard Terms and Conditions.

ii. If there is inconsistency between any part of the agreement, the inconsistency will be resolved according to the following order of priority:

a. The application.
b. The service description (if any)
c. These Standard Terms and Conditions

2. PERIOD OF THE AGREEMENT

i. The agreement commences when your application is accepted by us.
ii. For contracts other than fixed period contracts, the agreement will continue until it is terminated by either party on 30 days notice or otherwise in accordance with the agreement.
iii. For fixed period contracts, the agreement will continue:
iv. for the minimum contract period referred to in your application, the service description or plan brochure; or
v. until it is terminated in accordance with this agreement
vi. If neither you nor we cancel the agreement at the end of the fixed period contract, we will continue to supply the service to you on a month-to-month basis.
vii. If we will not continue to provide the service to you at the end of the fixed-period contract or if we wish to change the terms of the agreement, including charges, we will inform you of this at least 30 days before the end of the fixed period contract.

3.  CHANGES TO THE AGREEMENT

i. We may change the agreement in the following circumstances:

a. Where you agree to the change;

b. Where the change will not adversely affect you and, before the changes take effect, we have given you notice of the change;

c. Where the change is in relation to charges for making international telephone calls, before the changes take effect, we have given you notice of the change;

d. Where the change is to introduce or vary a fee or charge to pass on a tax or levy imposed by law and, before the changes take effect, we have given you notice of the change;

e. Where the change is to introduce or to vary a charge associated with a content or premium service where we rely on a third party for the service and the third party increases its price to us and, before the changes take effect, we have given you reasonable notice of the change;

f. If the agreement is a fixed period contract and the change is adverse to you, and we provide to you not less than 30 days notice of the change

 

ii. We may withdraw any plans/packages at any time by giving you notice but such withdrawals will only take effect from the end of your then current fixed-period contract.

iii. Notice of a change to the agreement may be given by us:

a. by email to your nominated account email address,

b. with or as part of a bill, or

c. otherwise in writing, including by fax or mail.

iv. Changes to these standard terms or a service description will be made available online and you are encouraged to check our website regularly.

v. If we change the agreement under clause 3.1(f), you may cancel the agreement within 30 days of the date of the notice without incurring charges, other than usage or network access charges to the date the agreement ends and outstanding amounts for installation or for equipment with other suppliers’ services.

vi. Your ongoing use of the service after the date of a variation, alteration, replacement or revocation or on the expiry of the 30 days period, is deemed acceptance of the variation, alteration, replacement or revocation.

4. APPLICATIONS

i. You warrant that information provided to us in the application is true and correct in all material respects and you acknowledge that we will rely on it. You agree that, if you give us incorrect information during an application which is then relied upon and used by a third party carrier for the provision or attempted provision of a service, you will be liable for a resubmission payment to us.

ii. An application for Service may be refused by us in the following circumstances:

a. Where there is a technical limitation to our ability to provide you the service, including where there are network capacity constraints;
b. Where you have not completed an application process correctly or have been unwilling to provide us with a document or information we require;

5. MINIMUM CONTRACT PERIODS

i. The minimum contract period is the minimum fixed period during which you must acquire any service. The minimum contract period may be specified in your application or in the service description (if any) of each service supplied. The minimum contract period commences when the individual service is activated.

ii. If, during the minimum contract period, you cancel the service or we cancel the service because of your default, you may be liable to pay an early termination charge. An early termination charge (ETC) will be calculated based on monthly commit at the requested time of termination multiplied by the remaining months; the ETC will then be billed in a single invoice.

iii. Once the Minimum Contract Period is over, your service will continue to renew automatically, and you will continue to be charged for the service, until such time as you or we cancel the service by giving 30 days notice.

6. BILLING AND ACCOUNT PAYMENT

i. Where we have agreed to issue bills, we will send to you by mail or email notification a tax invoice at the end of billing periods unless the plan brochure stipulates otherwise. You must pay all outstanding amounts by the due date as shown on your tax invoice.

ii. Usage records and download times can vary from time to time. Whilst we aim to do so, we are unable to guarantee that all usage records during a billing period will appear on the corresponding bill.

iii. Payments may be made to us through our available payment methods. Service fees and charges may apply for some available payment methods. We will apply payments made by you against outstanding tax invoices at our discretion.

vi. If you have chosen to use our direct debit facilities, and we have not received your payment by the due date, unless we agree with you otherwise, we will debit your nominated account on or after the due date. We may continue to do so at any time until all amounts due are paid. We will provide email notification when debits are made.

v. Where in our opinion you have a reasonable claim or dispute with an invoice or a debit, we will suspend our collection or recovery processes until a determination on your claim or dispute has been made. We will reimburse any incorrectly debited amount as soon as reasonably practicable.

vi. All administration, registration and set-up fees are non-refundable.

vii. Accepted credit cards: Visa, Mastercard, American Express. Accounts paid with a Credit Card will incur a surcharge 1.70% (incl. GST) of the debited amount respectively when we debit the card.

viii. Cloud Kitchen will also accept direct debit from your nominated bank account. There will be a flat processing fee of $1.25 for these transactions.

ix. You are responsible for ensuring there is sufficient funds/credit available in your nominated credit card or direct debit account at any time we debit the account. You must pay our dishonor fees and any other charges, expenses or losses resulting from our attempting unsuccessfully to debit the credit card or direct debit account unless the failure was due to a clear error on our part. Dishonored debits incur a $10.00 inc GST handling charge. Direct Debit rejections also incur a $10.00 inc GST charge.

x. You are required to inform us if your credit card is due to expire at least two weeks prior to the expiry date and are required to provide us with details of a current credit card. You must also advise us if your nominated direct debit account is transferred or closed, or the account details have changed.

xi. In instances where you are late in paying an invoice Cloud Kitchen may inforce a late payment fee of $20 (inc GST). Continual breaches of due dates may result in the service being cancelled and Early Termination Charges applied.

xii. Where a customer provides a new credit card number or re-advises a credit card number, Cloud Kitchen may debit the credit card for any outstanding amount owing or an amount of $1 if there is no current amount owing. This debit is to confirm with the Customer’s financial institution that the card number and CVC are correct. The CVC is not retained by Cloud Kitchen. The amount received is credited to the customer’s account.

xiii. Cloud Kitchen will not accept Prepaid Visa/Master credit cards or gift cards.

xiv. If you have failed to pay to Cloud Kitchen an amount which is due, we may following appropriate notice to you refer the debt to a third party collections agent for the purpose of collection activity. You must pay all costs, charges and expenses that we may incur in relation to our attempts to recover all debts due by you to us, including accounting, mercantile agents costs and interest.

7. SUSPENSION OR DISCONNECTION OF A SERVICE

i. If your fixed period contract has expired or you are on a month-to-month contract, you or we may disconnect the service and cancel the agreement at any time by giving 30 days notice.

ii. If you fail to comply with what we consider to be an important term or condition of this agreement or should you fail to comply with a number of less important terms and conditions then we can suspend or disconnect your service or reroute calls from your service. We will generally provide you with notice of your failure and allow you a reasonable time to remedy it. However we may suspend or disconnect your service without notice to you where there has been, in our opinion, unusual activity on your service such as:

a. activity that is consistent with your service or equipment connected to your service having been infected with a virus or other malicious software; or

b. other activity that Cloud Kitchen reasonably believes is evident that the service is being used for fraudulent or other illegal purposes;

c. you have not paid charges when due and have not remedied that failure within what we consider to be a reasonable time;

d. you do something which we believe may damage the service network;

e. you are no longer approved by us under our assessment policies or otherwise to receive the service;

f. an authority such as the ACMA or enforcement agency instructs us to do so;

g. we believe that you have used your service to commit unauthorised, criminal or unlawful activity;

h. you vacate the premises in which you are provided the service without notifying us beforehand;

i. there are technical problems with the service network or the service network requires repairs or maintenance;

j. we believe it is necessary to comply with our legal obligations;

k. we are entitled to do so under the specific terms and conditions of your plan or package;

l. you verbally abuse, attempt, threaten or cause harm to any staff, equipment or network infrastructure of ours or any of the service networks.

iii. Where one or more services included in a bundled offer(s) are disconnected, entitlement to any discounts under such offers may be forfeited.

iv. While your service is suspended or disconnected we will continue to charge you any applicable fees and charges. We will only do so where the suspension or disconnection is due to your failure to comply with your obligations under this agreement, or is performed at your request.

v. Where we disconnect your service prior to the expiration of the minimum term of your plan you will be liable for any outstanding fees and charges, including the remaining access fees on your plan plus a plan cancellation fee if applicable. We will only charge a plan cancellation fee in circumstances where you have failed to comply with an important term or condition of our agreement.

vi. We are not liable to you or any person(s) claiming through you for any loss or damage arising from suspension or disconnection of your service in accordance with this clause.

8. TECHNICAL SUPPORT

i. Unless expressly agreed in the form of a separate Managed Service Agreement Cloud Kitchen is not obligated to provide any technical support for any of the products or services it supplies.

9. FORCE MAJEURE

i. We will not be liable for:

a. any delay in installing any service.

b. any delay in correcting any fault in any service.

c. failure or incorrect operation of any service, or

d. any other delay or default in performance under this Agreement
Where it is caused by any event or circumstance reasonably beyond our control, including but not limited to; war, accident, civil commotion, riot, military action, sabotage, act of terrorism, vandalism, embargo, judicial action, labour dispute, an act of a government or a government authority, acts of God, earthquake, fire, flood, plague or other natural calamity, computer viruses, hacker attacks or failure of the internet or delay, or failure or default by any other supplier.

10. LIABILITY

i. You may have certain rights and remedies under:

a. the Competition and Consumer Act 2010 (Cth) and other laws, which may imply certain conditions and warranties into this agreement; and

b. the Customer Service Guarantee issued by the ACMA, which established minimum connection and fault repair times, breach of which entitles you to certain specified amounts of damage.

ii. We do not exclude or restrict or modify those rights, remedies or implied conditions and warranties.

iii. Where we are liable for any loss or damage in connection with or arising from the breach of any term, condition, warranty or remedy implied by the Competition and Consumer Act 2010 (Cth) our liability is limited to resupplying, repairing or replacing the relevant service or equipment where the service or equipment is not of a kind ordinarily required for personal, domestic or household use or consumption and where it is fair and reasonable to do so.

iii. You must let us know as soon as you become aware or believe that you have a claim against us.

iv. We are not liable for any defamatory, offensive or illegal conduct or material found in connection with our services, including such conduct or material transmitted by any means by any other person

v. You indemnify us from and against all actions, claims, suits, demands, liabilities, losses, costs and expenses arising out of or in any way connected with your use of the service or the equipment in a manner contrary to the terms of this agreement.

vi. Where you are two or more persons your liability will be joint and several.

11. LIMITATION OF LIABILITY

i. Subject to the forgoing Cloud Kitchen liability to the customer for any cause what so ever and regardless of the form of the action whether in contract or tort including negligence shall be limited to actual damages up to an amount equal to the greater of the purchase price of the items causing the damage or $1000.

ii. Under no circumstances will Cloud Kitchen be liable for any lost profits or other consequential damages arising out of the use of or inability to use the supplies even if Cloud Kitchen has been advised of the possibility of such damages.

iii. The foregoing limitation of liability will not apply to the payment of cost and damages awards for personal injury or damage to personal property caused by Cloud Kitchen’s negligence.

12. ASSIGNMENT

i. You may transfer your rights and obligations under this agreement to other person(s) approved by us under our assessment policies.

ii. Where we reasonably consider there will be no detriment to you, we can without your permission and without notice:

a. transfer our rights and obligations under this agreement to our nominee;

b. temporarily or permanently delegate our obligations under this agreement to our nominee; or

c. novate this agreement to our nominee by ending this agreement and entering into a new agreement between you and our nominee, on terms similar to this agreement.

iii. If we do any of the above the transfer or delegation or novation will take effect when the relevant document is signed. You irrevocably appoint us as your attorney to sign any necessary documents to enable the transfer, delegation or novation to take effect.

13. GOVERNING LAW

i. This agreement is governed by the laws of the state or territory of Australia in which you are normally resident. You and we agree to submit to the jurisdiction of the courts of such state or territory.

PRODUCT SPECIFIC – TERMS OF SERVICE

1. DIALPAD SERVICES

i. Cloud Kitchen Pty Ltd (ACN 143 780 778) (“Cloud Kitchen”) is an authorised reseller of Dialpad. The following terms of service apply to all services provided by Cloud Kitchen to a customer ( a “Customer”) and also incorporate the Dialpad, Inc Terms of Service, Acceptable Use Policy, Privacy Policy and Copyright Disputes Policy as published here https://www.dialpad.com/legal/

ii. Cloud Kitchen is an authorised reseller of Dialpad. All of the rules and restrictions that govern your use of any and all Dialpad services including website(s), products, services and applications, which include, but are not limited to, UberConference, Dialpad Talk, Dialpad Support, and Dialpad Sell (the “Services”) that you order directly through our website are incorporated into the Cloud Kitchen terms of services. For the avoidance of doubt, to the extent that any terms of the Dialpad Terms of Service differ to the Cloud Kitchen terms of Service Cloud Kitchen will determine which Terms apply at its absolute discretion. Any amount owing under the Dialpad terms of service are automatically owing under
Cloud Kitchens terms of service also.

iii. The Dialpad Terms of service are available at https://www.dialpad.com/legal/

iv. UNLIMITED CALLING – Dialpad offers unlimited monthly calling for domestic calls from your mobile phone or computer. An unlimited service provides you with a domestic telephone number and is subject to the terms and restrictions of the Dialpad Acceptable Use Policy along with any other restrictions described herein, as well as any terms within your agreement with Cloud Kitchen, where applicable. If, for any reason, Dialpad or Cloud Kitchen believes that you are using the unlimited service for a prohibited purpose and/or your call usage violates the Dialpad Acceptable Use Policy, then Dialpad and/or Cloud Kitchen may, at each their sole discretion, with or without notice, terminate your unlimited service.

v. TOLL FREE, 1800 AND 1300 CHARGES – Cloud Kitchen (either directly or via its reseller arrangements with Dialpad) may offer toll-free numbers, for an additional monthly fee, plus additional charges based on the minutes of use for inbound calls/outbound calls. Having a toll-free, 1800 or 1300 number may require additional billing terms that will be specified in your contract. If, for any reason, Cloud Kitchen or Dialpad believes that you are using the toll-free calling for a prohibited purpose and/or your call usage violates any Cloud Kitchen or Dialpad agreement including the Dialpad Acceptable Use Policy, then

vi. INTERNATIONAL CALLING AND “LOCAL” INTERNATIONAL TELEPHONE NUMBERS – To make international calls using the any of the services provided by Cloud Kitchen or Dialpad you must enable international calling in your settings and pre-purchase at least the minimum package of international calling credits necessary to make such international calls. Rates, terms, Taxes and Fees associated with international inbound and outbound calling and texting services may vary based on the country and reseller agreement, if applicable. If, for any reason, Dialpad believes that You are using the Service for a prohibited purpose and/or your call usage violates the Acceptable Use Policy, then Dialpad may, in its sole discretion with or without notice, terminate your service. International call rates in USD can be found at https://www.dialpad.com/rates/

vii. OTHER SERVICE CHARGES – The services offer by Cloud Kitchen (either directly or via our reseller arrangements with Dialpad) include one or more Voice over Internet Protocol (“VoIP”) lines, including the option to add additional lines at a later date. Your license to the services is provided for in a term specified in your purchase agreement through Cloud Kitchen as an authorized Reseller of Dialpad. The initial Term begins on the date that you sign up for the services (the “Date of Purchase”). The Term for all services will renew automatically for successive Terms of the same length without further action by or notice to you unless you notify Cloud Kitchen of your non-renewal at least thirty (30) days before the end of the then current Term, unless otherwise provided in your Agreement. Porting fees and other charges may apply to some of the services offered by Cloud Kitchen and Dialpad. If Cloud Kitchen or Dialpad are charged for porting existing or new numbers, these costs will be passed on to the Customer. If there are porting charges incurred during a contract term for transferring or adding new numbers to your account, these costs will be billed in the period which they are incurred by Cloud Kitchen. The amount of porting charges varies depending on the carrier and the complexity of each job. The Customer is liable for all porting fees associated with their account.

viii. TERMINATION OF VOICE SERVICES – In the event of Termination of an Cloud Kitchen contract service with a selected payment over time option, a customer will be charged a termination of contract fee. All services relating to bundles are delivered upfront by Cloud Kitchen and therefore an early termination charge (ETC) will be calculated by the remaining months of the contract multiplied by 100% of the monthly commit at the requested time of termination; the ETC will then be billed in a single invoice. Cloud Kitchen will deliver a final Tax Invoice regarding any delivered Hardware or delivered services that have not been invoiced at the date of termination. Upon termination of your account, all confidential information associated with your account will be deleted or destroyed in accordance with the Privacy Policy.

ix. CANCELATION OF LICENCES – If you remove a user from your Dialpad administration portal and would also like to the cancel the associated users Dialpad licence, you must notify us via email at info@cloudkitchen.com.au as we do not receive notification of individual user add, move and changes (AMC’s). In the event that you remove the user and do not notify us, the licence will continue to be billed under the assumption that you are intending to re-issue the licence to a new user. If the licence is paid as an annual licence, no refund will be issued for unused time.

2. DATA & INTERNET SERVICES

i. ORDERING A NEW SERVICE – In approving & providing us with a signed application, You acknowledge and agree that:

a. Unless the agreement stipulates otherwise, the fees and charges quoted are on the basis that Your PoP, premises or site has an existing and appropriate access connection to the upstream carrier’s network (eg, copper access when ordering a copper service, fibre access when ordering a fibre service, etc).

b. Where an existing and appropriate access connection to the upstream carrier’s network does not exist for a specific service:

c. We may incur costs in order to determine whether the service can be supplied, and at what cost;

d. We may incur costs which have been invoiced to Us by the upstream carrier in order to determine whether the service can be supplied and at what cost, including;

1. 1. 1. 1. 1. service qualification
            2. feasibility studies
            3. special linkage charges
            4. commercial works
            5. Fee for service charges
            6. miscellaneous charges (including such costs as inability to gain access, etc)

e. Upon determining the cost to connect to the upstream carrier’s network for a specific service, We shall liaise with You, and You may then choose to either proceed with, or cancel, the order for that specific service.

f. Some of the costs set out in clause 14.1 above may be incurred if You delay or place the order on hold, or even if You subsequently choose not to proceed with the ordered service after We have determined what the cost of connecting to the upstream carrier’s network is, and We may invoice You and You will pay Us for these costs, separate to this Order, and irrespective of whether this order is provisioned, delivered or completed in part or in its entirety.

g. Regardless of whether any specific Service included in the order is cancelled in accordance with 14.1 above, You shall not have the right to cancel any other services contained in the order, or the order as a whole.

h. You must provide appropriate telecommunications software and hardware for connection of the service to the network.

i. You are responsible for payment of any costs associated with the data communications line (telephone line or similar link) used for connection of the service to the network.

j. We have not offered to you and do not provide any form of managed security services, as such, You are responsible for implementing and maintaining network security at Your site at all times.

k. You acknowledge that to the extent permitted by law We do not make any representations or warranties concerning the fitness for purpose or effectiveness of any aspect of the Service we provide to You.

l. You acknowledge that the service provided is not a completely secure and confidential method of communication and You transmit data on the network at Your own risk.

m. You acknowledge that any electronic material accessed by You through the network is varied, and that We will not be liable for or responsible to You or any other person for the nature and content of that electronic material or Your use of that electronic material. You must ensure that use of the services does not include access to illegal material, or expose any minor to material that is unsuitable for minors. You will indemnify Us for any liability We incur as a result of Your breach of this clause.

ii.  PRIVATE IP CONDITIONS OF CONNECTION AND SERVICE – You acknowledge the use of the service by You (which includes the contents thereof and any storage or use of information) is at Your own risk. You further acknowledge that We do not warrant that the service will be uninterrupted or error free, nor do We make any warranty as to the results obtained from the use of the service.

iii. INTERNET TAIL CONDITIONS OF CONNECTION AND SERVICE – No service level agreements or commitments are offered in respect of the service, however in the event of a fault We will use reasonable endeavors to address the fault within a reasonable period. We do not guarantee that connections using the service achieve any specific speed at any given time as variables such as signal strength, distance from exchange, traffic and load have an effect on the connection speed

vi. FAULT REPORTING & RESPONSE TIMES – If You rely on Customer Premises Equipment (“CPE”) supplied by Us, You must specifically ensure that the CPE is receiving clean power and cooling as required to be operational. Before reporting a fault to Us, You must take all reasonable steps to ensure that the fault is not a fault in any of Your equipment or within Your administrative domain. As soon as You have confirmed the fault is related to the service supplied by Us, that fault must be reported to Us in in writing immediately at info@cloudkitchen.com.au. If We determine the fault is attributable to Your equipment, then We may invoice You a reasonable amount (not to exceed $500) for the time spent diagnosing the fault.

iv. LIMITATIONS – You understand and accept that We do not guarantee that the service will do any of the following:

a.  Protect against unauthorized access to the network
b. Remove or correctly identify viruses;
c. Screen, block or correctly identify any spam;
d. Detect and remove any types of attacks or correctly identify attacks;

3. HARDWARE, INSTALLATION AND ONBOARDING SERVICES

i. Title to any property in the supplies remains in Cloud Kitchen or its nominated suppliers until payment in full is received by Cloud Kitchen, failure to make payment in full when due shall give Cloud Kitchen the right to avail itself of any legal remedy with or without notice, including repossession of the supplies.

ii. The client assumes risk of loss or damage upon delivery of the supplies to the client or collection by the client. Delivery will be made in accordance with Cloud Kitchen’s delivery schedule at the time of receipt of the Customers order.

iii. Prices relate to point of delivery. Deliveries to some locations maybe be subject to additional freight and insurance charges. Cloud Kitchen warrants that the supplies are free from defects in material and workmanship at the time of delivery or collection by the client as appropriate. All other warranties express or implied are excluded in the event that the supply of goods pursuant to this invoice is a supply of goods to a consumer as defined in the trade practice act 1974 nothing contained herein excludes, restricts or modifies any condition.

iv. Warranty, right or remedy which pursuant to that act applies to or is conferred upon the customer provided that to the extent that the act permits Cloud Kitchen to limit its liability for a breach of a condition or warranty implied by that act then Cloud Kitchen’s liability for such breach shall be limited to the payment of the cost of replacing the goods or of acquiring equivalent goods.

v. ONBOARDING SERVICES – Cloud Kitchen may provide, for a fee, onboarding services that we will schedule in at a time convenient with you. The purpose of these sessions is to ensure that you knowledge of how to use the systems we’ve implemented. These sessions may be recorded at your request and be supplied for ongoing reference. In the event that a scheduled session is not attended by any persons within the business Cloud Kitchen is under no obligation to re-schedule the session. If you would like additional sessions these can be paid and booked through our Customer Success Team.

4. HANDSET RENTALS

i. AGREEMENT TO RENT
We agree to rent the Equipment to You and You agree to rent the Equipment from Us on the terms set out in this Agreement.

ii.  RENTAL TERM
This Agreement will begin on the Commencement Date and will continue on a recurring monthly basis until terminated in accordance with this Agreement, subject to a minimum initial rental period of six (6) months. Where any individual item of hardware has been rented (and all payments have been received by Cloud Kitchen) for a continuous period of 36months then you may elect to purchase that item of equipment for the settlement price of $1.00. In electing to purchase the equipment after 36 months you will need to provide written notice to Cloud Kitchen no sooner than 30 days prior to the date you intend to purchase the equipment. Monthly rental payments will continue to apply if no notice has been received by Cloud Kitchen.

iii. DELIVERY OF THE EQUIPMENT
Cloud Kitchen will arrange for the delivery of the Equipment. It is your responsibility to satisfy yourself of the condition, fitness for purpose and acceptable quality (collectively “quality”) of the equipment at the time of delivery. If you believe that the equipment is faulty or damaged, you must notify us within 3 days of any faults with the delivered equipment. After the 3 days we are no longer responsible for any damage to the equipment.

iv. INSTALLATION
Installation, where required, must be performed by our qualified installation partners or another service provider that has been approved by us in writing prior to the installation.

v. ADDITIONAL RENTALS
If after the Commencement Date of this Agreement You ask Us to rent from Us additional equipment, it may be supplied at our discretion and on the same terms contained in this agreement.

vi. PAYMENTS & CHARGES
Your obligations in respect of payments and charges are:

a. You must pay the Rental Payment to Us on or before the recurring due date specified in the Schedule for the minimum duration of the Rental Agreement.
b. In addition to the Monthly, in respect of each day in any Interim Period we reserve the right to charge You an interim rental fee, calculated as the daily proportion of the amount of the Rent Payment attributable to the relevant item of Equipment.
c. Your obligation to make any payments under this Agreement is absolute and unconditional from the date You sign this Agreement and
d. Any payments by You must be made by direct debit or in such other manner as agreed between You and Us from time to time. Any payment is not considered made until We have received the monies.
e. You must pay interest to Us on any monies payable under this Agreement which may from time to time be overdue, at a rate equal to the lesser of 9% per annum or the maximum rate permitted by law.
f. You must pay to Us all costs and expenses, including reasonable legal costs (on a solicitor and client basis), which We incur in exercising any of Our rights under this Agreement.
g. You must pay, or reimburse Us for, all duties, taxes (except income tax) and other government charges which are in any way related to the Equipment, its use, possession or operation, this Agreement or the Rental, and registration of our security interest and maintaining such registration. We may, by notice to You, vary the Rent Payments in line with any variation in any such government charges.

h. If We make a supply under or in connection with this Agreement in respect of which GST is payable (other than the GST already included in the Rent Payments), You must pay that GST amount to Us on receipt of a tax invoice from Us. (In this clause, any word or expression defined in the A New Tax Systems (Goods and Services Tax) Act 1999 (Cth) has the meaning giving to it in that Act).
i. A Dishonour Fee of $30 is due and payable by You to Us if you fail to pay to Us an amount when due under this Agreement or when we direct debit an amount under this Agreement and it dishonours.

vii. YOUR WARRANTIES
You warrant to Us that all information which You have given to Us is correct and not misleading . You warrant that You are authorised to enter into this Agreement, including under the terms of any trust deed if You are a trustee, and in doing so You are not in breach of any authorisation or regulations controlling or affecting You or Your business;

a. if You are entering into this Agreement as a trustee this Agreement binds You personally and as trustee of the trust;
b. the Equipment is rented wholly or predominantly for business purposes and You acknowledge that the National Credit Code does not apply to this Agreement.

viii. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”) AND PROTECTION OF OUR RIGHTS

a. You acknowledge that on signing this Agreement You grant Us a security interest in favour of Us in respect of the Equipment and all of Your present and after- acquired personal property and secure payment by You to Us of all amounts from time to time owing by You to Us under this Agreement or any other agreement.
b. You will do all things necessary to enable the perfection, reperfection, and/or maintenance of perfection of the security interest granted by You to Us under this Agreement including granting Us the right to, on reasonable notice, enter premises under Your control and re-take possession of the equipment.
c. You will notify Us of any change in name not less than 3 days before the change takes effect.
d. To the maximum extent permitted by law, You agree to waive Your rights under the Act to do any of the following:

1. receive notice of removal of an accession under section 95;
2. receive notice of an intention to seize collateral under section 123;
3. receive notice of disposal under section 130;
4. receive a statement of account under sections 132(3)(d) and 132(4);
5. receive notice of retention under section 135;
6. redeem collateral under section 142;
7. reinstate security agreement under section 143;
8. object to purchase of collateral by Us under section 129; and
9. receive verification statement under section 157.

e. In the event that:

1. You fail to perform any obligation contained or implied in this Agreement; and/or
2. It is necessary for Us to take any step or incur any expense to protect its interest under this Agreement, including the registration and maintenance of Our security interests or repossession of the equipment, then We may perform such obligation, pay such money, or incur such expense, and You shall indemnify and reimburse Us for all monies paid or expense incurred (including all legal and associated costs) by Us (inclusive of any Goods and Services Tax).

f. In the event that We enforce a security interest granted under this Agreement, We shall have the right to apply any surplus to any other debt owed by You to Us under any other agreement.

ix. USE, MAINTENANCE AND REPAIR
Your obligation with respect to the Equipment are:

a. You must always maintain the Equipment in good working order and condition and in accordance with the manufacturer’s specifications and recommendations.
b. You must only use the Equipment for the purpose for which it was designed and in accordance with the manufacturer’s instructions
c. You must not engage any personnel to undertake any repairs or other services to the Equipment and must not do anything which may cause any such person to believe that We will be responsible for paying that person’s account.
d. You must not make any alteration or addition to the Equipment which may adversely affect its value.

e. You must not remove the Equipment from the location set out in the Schedule without Our prior written consent.
f. You must keep the Equipment secure from theft or damage.
g. You must keep the Equipment in Your possession and not enter into any agreement with anyone in relation to the Equipment or do anything to prejudice Our rights in the Equipment.

x. OWNERSHIP OF THE EQUIPMENT AND OUR RIGHTS
The Equipment is Our property and will always remain our property. You are a bailee of the Equipment only and have no right to purchase or acquire any interest in it. You must not authorise or pledge credit or create any lien, mortgage, charge, security interest or Encumbrance upon the Equipment. On reasonable notice from Us, You must ensure that We have access to the Equipment, during normal business hours in order to exercise any of Our rights, including testing the Equipment or otherwise whether You have complied with Your obligations. We will comply with Your reasonable security and work health and safety policies where they are provided to Us in advance. You authorise Us to enter any premises where the Equipment is located for these purposes. We will attempt to give You reasonable notice before doing so.

xi. OTHER MATTERS
You must not transfer this Agreement or any of Your rights under it without Our prior written consent, which will not be unreasonably withheld. You must indemnify Us and our agents, assignees and contractors against any claims or costs of any kind arising out of the use, operation or possession of the Equipment.

xii. LIMITATION OF LIABILITY
We shall not be liable to You in respect of any loss or damage (including loss of profits, loss of revenue, loss of opportunity, loss of use, loss of goodwill or any other direct or indirect loss or damage whatsoever) whether arising in contract, tort (including negligence),equity, pursuant to statute or under any other principle of law.

a. Any liability we may have for any failure to comply with a consumer guarantee imposed by the Australian Consumer Law is not excluded, but to the extent permitted by that law is limited to our option of:

1. in the case of equipment supplied under this Agreement, one of the following:

1. the replacement of the equipment or the supply of equivalent equipment.
2. the repair of the equipment.
3. the payment of the cost of replacing the equipment or of acquiring equivalent equipment; or
4. the payment of the cost of having the equipment repaired: and

2. in the case of services supplied under this Agreement, one of the following:

1. the supplying of the services again; or
2. the payment of the cost of having the services supplied again.

xiii. ENDING THE RENTAL AGREEMENT
To end a rental agreement you must:

a. provide notice no less than 1 month prior to the date you wish the Rental to end;
b. return the Equipment to Us, in good condition and with any other items supplied along with the Equipment;
c. pay for the cost of delivery if that is required to return the equipment; and
d. if You do not return the Equipment to Us when You are due to do so and We are not able to recover possession of it within a reasonable period of time, We may declare it to be lost and You must pay Us the Market Value at that time as well as any other monies which You owe to Us.
Rental Payments and any penalty interest will continue to accrue until such time as the Equipment, or where required, the payment of the Market Value, has been received by Us.
e. You can cancel at any time however within the first 6mths a early termination charge will be will be charged to your account. The ETC will be calculated as follows:
ETC = (monthly rental handset amount X the remaining minimum term payments)

xiv. TERMINATION BY US
We may decide to terminate the Agreement if a Termination Event occurs. A Termination Event is any of the following:

a. You fail to pay any one or more Rental Payments in whole or in part within 7 days of the due date, whether or not formal demand has been made by Us;
b. You purport to assign or in any way deal with the Equipment or any of our rights under this Agreement;
c. anything occurs which prejudices or puts in jeopardy Our rights to or interest in the Equipment or Our ability to recover the Equipment;
d. the Equipment is lost or destroyed or We form the opinion that it is so damaged as to make its repair uneconomical;
e. action is taken by You or another person on the basis that You are insolvent or unable to pay Your debts when they are due.

xv. OUR RIGHTS ON TERMINATION

If a Termination Event occurs, we are entitled to terminate the Agreement immediately without notice by taking possession of the Equipment or by issuing you an invoice for the Market Value of the Equipment. On such termination of the Rental You must pay to Us an amount equal to:

1. any Rent Payments and any other monies then due under this Agreement but not paid;
2. Our reasonable administration costs, and;
3. Our costs of repossessing or attempting to repossess the Equipment (if applicable);

xvi. NOTICES
Any notice required to be served under this Agreement will be deemed to have been properly served when sent to the nominated email contact listed in the Schedule. You must advise Us as soon as practicable if You change Your email address.

xvii. APPLICABLE LAW
This Agreement is governed by the law of the State of New South Wales and the parties submit to the jurisdiction of the court system of that State.

xviii. RENTAL DEFINITIONS & INTERPRETATION
In this Agreement:

Commencement Date	means the date specified as such in the Schedule or signed quote.
Corporations Act	means the Corporations Act 2001 (Cth).
Equipment	means the items identified as such in the relevant Schedule attached to this Agreement or in any additional equipment request that may be made by you, and that is accepted by Us, from time to time.
Market Value	means the value of the Equipment, calculated on the basis that it is in excellent condition for its age, as determined by Us acting reasonably or by a person nominated by Us as being experienced in valuing equipment of a similar kind..
Rent Payment	mean the GST inclusive monthly rental specified in the Schedule or signed quote;
Rental	means the rental of the Equipment specified in the relevant Schedule or signed quote
Schedule	means the schedule attached to Your Agreement or any signed quote.
You or Your	means the person named as Customer in the Schedule or signed quote.
We or Our or Owner	means Cloud Kitchen Pty Ltd (ACN 143 780 778) and includes their respective successors and assigns.

 

In the interpretation of this Agreement the singular includes the plural and vice versa, any gender includes the other genders and a person includes an individual, a body corporate or a government; and any warranty, obligation or right which binds or benefits two or more persons under this agreement binds or benefits those persons jointly and severally.

 

5. CLOUD KITCHEN BYOD VOICE SERVICES

1. These terms and conditions apply to all BYOD voice services (the “Service”) which include:

• • • • • • Cloud Kitchen’s CKBusinessVoice (SIP)
          • Cloud Kitchen Toll-Free.

        These BYOD voice plans are designed for use with a customer’s existing equipment which may not have been originally supplied by Cloud Kitchen.

        2. All activation & calling fees and charges applicable to your BYOD Voice service will commence from the date of activation of your Cloud Kitchen account.

        3a. Domestic Calling Rates are as per the service schedule for your calling plan as advertised on our website If your plan is no longer advertised, you can request the calling rates again by email. International Calling Rates are also listed on our website and are subject to change without notice, although they are generally updated on the last day of each month for the following month.

        3b. International rates fluctuate regularly due to many market factors, and you agree to pay the rates listed at the time of your call. You can request international barring by emailing: info@cloudkitchen.com.au

        4. Your term begins when your account is activated and continues for the period of time until you request an account cancellation in writing. Should your details change at any time, you must notify us immediately. If you wish to discontinue your service, you must give us 30 days notice in writing by emailing us to request a disconnection and cancellation. Cloud Kitchen may suspend, restrict or disconnect the service under varying circumstances. A final invoice will be issued after disconnection and you must pay all fees and charges you incurred using the service, up to the date of the cancellation request.

        5. Cloud Kitchen BYOD plans allow customers to connect voice services using their own device. Cloud Kitchen only charges for answered calls and ceases to charge when the call is terminated by the caller. Timed calls are calculated using the total network time used for each call. The Customer agrees that any calls from the Cloud Kitchen services supplied to the Customer are deemed to be authorised by the Customer and the Customer will pay all charges accordingly. International calls are charged in 30 second increments, Mobile timed calls are charged in one second increments. There is a minimum charge of 1 cent on all timed calls.

        6. Cloud Kitchen is in no way responsible for the performance of any of the on-premise equipment supplied by the customer. In the event of a fault, Cloud Kitchen with only test up to the point of the network handover to the customers equipment. If there are no faults found on the greater network, it will be responsibility of the customer to liaise with the hardware provider to find resolution.

        7. Customers may port their own number to Cloud Kitchen from their existing carrier. This ported DID will continue to belong to the customer, and not Cloud Kitchen. This DID can be ported to another Telecommunications provider by the customer without notice to Cloud Kitchen

        8. Plans are per-service and in some instances may include Unlimited calls. All Unlimited plans are subject to the Cloud Kitchen Fair Use Policy.

        9. If, in Cloud Kitchen’s opinion, you breach any of the terms and conditions of this Agreement, we may suspend, terminate or limit your access to the Service and terminate this Agreement effective immediately. The termination of the Service shall not preclude Cloud Kitchen from exercising any other rights Cloud Kitchen may have against you under this Agreement.

        10. Toll fraud is the act of an unauthorised person gaining access to your equipment and making calls from your PABX. As Untangled ICT are not responsible for the security of your network and/or the maintainer of your on-premise PABX equipment, Untangled ICT will in no way be responsible for any costs incurred from malicious activity that results in toll fraud.

        11. If you have authorised payments by credit card, debit authority or other similar methods, then payments shall be drawn against your authority when due without further notice to you unless you terminate the payment method by 14 days written notice to Untangled ICT. Disconnection to the Service will occur in the event that your authorized payment method is refused or dishonoured by your nominated financial institution.

        12. These terms plus the terms of the chosen Service(s) constitute the entire Agreement between the Customer and Untangled ICT in relation to Service(s)