The Customer must provide the information set out in the table below to enable any porting of existing telephone numbers.  

 Single numbers:  Customer to obtain confirmation from its current provider in writing that the number intended to be ported is a standalone number and can be ported

 Multiplier Numbers /  Number Blocks

Customer to obtain from its current provider in writing:

• a list of all numbers associated with its account(s) and confirmation that these numbers can be ported as a block;

• Confirmation that there are no other numbers associated with the Customer, account or bill, that may cause the port to be rejected.

1. Definitions

Break Fee means the relevant cancellation fee or termination charge (if any) as set out in the Services Agreement that is payable when a Service is terminated.

Confidential Information means any information of a party that is by its nature confidential, or by the circumstances in which it is disclosed is confidential; or is communicated to be confidential by the disclosing party.

Consequential Loss means any loss of revenue, loss or profit (whether direct or indirect), loss of reputation, loss of business, loss of opportunity or loss of goodwill, or any indirect, consequential or punitive loss or damage, irrespective of whether such loss or damage was within the contemplation of the parties at the time the Contract was formed or arises naturally from the event giving rise to the loss or damage.

Customer Equipment means any equipment used in connection with the Services, other than Cloud Kinnekt Equipment, including telephone access lines, telephone and computer equipment, modems and other access device(s) necessary for Cloud Kinnekt to provide the Services to the Customer.

Equipment means any hardware or software installed by Cloud Kinnekt at a Site or Cloud Kinnekt premises in connection with the Services.

Data Services means any service provided by Cloud Kinnekt for internet use and voice connectivity.

Fault means a failure in the normal operation of the Services.

Force Majeure means anything beyond the control of Cloud Kinnekt which prevents Cloud Kinnekt from meeting its obligations under a Services Agreement.

GST has the meaning given to that term in the GST Act.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Invoice means a tax invoice provided by Cloud Kinnekt to the Customer relating to the Services.

MSA means this Master Service Agreement. 

Minimum Term means the set period of time for which the Customer and Cloud Kinnekt agree that a Services Agreement must remain in effect being the longest period for any single Service specified in the Services Agreement.

PPSA means the Personal Property Securities Act 2009 (Cth).

PPSR means the Personal Property Securities Register created and governed by the PPSA.

Provider means any supplier of goods or services (including without limitation telecommunications network, equipment, facilities or cabling) that may be used directly or indirectly by Cloud Kinnekt to supply the Services.

Purchased Equipment means any Equipment that you purchase from Cloud Kinnekt for use in connection with the Services.

Scheduled Maintenance means maintenance activities conducted on any Equipment or the Services notified by Cloud Kinnekt to the Customer from time to time during the Term. 

Secured Money means all money which the Customer is or may become actually or contingently liable to pay to Cloud Kinnekt under or in connection with the provision of any Services or the supply of any Purchased Equipment.

Security Interest means a security interest as defined by the PPSA.

Services means the services (including the provision of any goods) described in a Services Agreement to be supplied by Cloud Kinnekt to the Customer. 

Services Agreement means the agreement executed between the Customer and Cloud Kinnekt setting out the Services to be delivered to the Customer by Cloud Kinnekt. 

Services Fee means the amounts payable to Cloud Kinnekt by the Customer for provision of the Services as set out in the Services Agreement

Service Level means the level of availability of the Services during the relevant period calculated in accordance with the applicable section of the Services Agreement.

Site means the Customer location or locations set out in a Services Agreement where the Services will be delivered to the Customer by Cloud Kinnekt.

Start Date means the date that Cloud Kinnekt notifies the Customer that the Services have been commissioned and are available for use, provided that where Services are separately commissioned the Start Date will be the date Cloud Kinnekt  notifies the Customer that the last of the Services has been commissioned and its ready for use.

Unscheduled Maintenance means any maintenance of the Equipment required to restore any element of the Services.

Voice Services means any voice services, including CloudPBX and Enterprise Trunk services.

Cloud Kinnekt means Cloud Kinnekt Pty Ltd ABN 31 623 337 851.

Kinnekt UC means Cloud Kinnekt Pty Ltd ABN 31 623 337 851.

Cloud Kinnekt Equipment means any Equipment and any other property owned by Cloud Kinnekt. 

2. Formation of Contract

2.1 A contract is formed upon the execution of a Services Agreement between the Customer and Cloud Kinnekt.

2.2 In consideration of payment of the Services Fee Cloud Kinnekt will provide the Services at the Sites in accordance with the Services Agreement and the terms of this MSA. 

2.3 Unless expressly stated to the contrary in a Services Agreement, in the event of any inconsistency between these Master Service Agreement terms and conditions and a Services Agreement, the Master Service Agreement shall prevail.

2.4 The parties agrees that any separate or additional terms proposed by the Customer, including without limitation any purchase order or similar document, are expressly not accepted by Cloud Kinnekt and do not apply to the Services for any reason or purpose whatsoever, regardless of any statement in such terms to the contrary.

2.5 Acceptance of delivery of any goods or commencement of the Services will be deemed conclusive evidence of the Customer’s acceptance of the terms and conditions set out in the applicable Services Agreement and this MSA.

2.6 These MSA terms may not be varied or amended except where agreed in writing and signed by a duly authorised representative of Cloud Kinnekt. 

3. Term

3.1 The Minimum Term will commence on the Start Date.

3.2 The Customer is liable to pay for the Services from the Start Date whether or not the Customer is ready to use, or is using, the Services. 

3.3 Upon expiry of the Minimum Term Cloud Kinnekt will continue to provide the Services until:

3.3.1 the Customer provides at least ninety (90) days written to notice to Cloud Kinnekt terminating the Services Agreement; or

3.3.2 Cloud Kinnekt provides written at least thirty (30) days’ notice to the Customer terminating the Services Agreement. 

4. Voice Services

4.1 We are not obliged to provide services unless we accept your application. We can decide whether or not to accept any application.

4.2 You understand that the VoIP service is not a traditional phone service and is provided on a best efforts basis. We will use all reasonable endeavours to make our services available to you at all times, however things beyond our control such as power outages or the performance of your IP connection to our service may disrupt the service we provide.

4.3 You accept that our services are not required to support emergency calls.

4.4 Unless otherwise agreed, we do not provide or support your internet connection. You accept that Cloud Kinnekt might not be compatible with non-voice communications equipment for example alarms, fax machines, Foxtel and St John Alarms.

4.5 Kinnekt UC IP Telephony Solutions require a Business Grade internet network connection and a stable network environment. 

5. Fair Use Policy and Using Our Services

5.1 You agree to provide us with accurate and correct information so we can provide you with the necessary services or contact you if required from time to time.

5.2 We can suspend or restrict the services we provide you at any time if:

5.2.1 you resell any of our services;

5.2.2 you do not use the service sensibly and within our reasonable use guidelines set out in 5.3 below;

5.2.3 we believe that you have breached any of our terms and conditions.

5.3 Unlimited calling minutes on Cloud Kinnekt plans are available on the basis of reasonable use and are not available for Telemarketing, Telemedicine, Telehealth services, Call Centre function and similar uses.  If you use the service in a way that is inconsistent with the normal use for your service or plan we may:

5.3.1 monitor and investigate your usage; and

5.3.2 suspend and/or withdraw the Service; or

5.3.3 charge our standard per minute rate for additional calls; or

5.3.4 at our discretion require you to move onto another Service which is more suitable for your requirements.

5.4 You must keep secure any password or PIN number which is used by you to access our services and ensure that is it not disclosed to any unauthorised person. You must also change your password or PIN number if we ask you to do so.

5.5 If your service is cancelled, terminated or reallocated you will relinquish and discontinue use of any numbers, voicemail access numbers and/or web portals assigned to you by Cloud Kinnekt. 

6. Phone Numbers

6.1 Any phone number that we allocate to you does not become your property and does not constitute any transfer of property rights.

6.2 If we need to change your number we will send you notification by email and give you as much notice as possible.

6.3 We can withdraw or terminate any number at any time without liability.

6.4 You may be able to port your Cloud Kinnekt number to another service provider, however not all single numbers are portable. If you wish to do so you must contact the other service provider directly and you will be responsible for completing the Porting requirements of that service provider. We will comply with our obligations under the Terms for Local and Mobile Number Portability in relation to the porting of your number. You will be responsible for all costs associated with porting the number.

6.5 If your account is inactive for more than 6 months or disconnected and you have not ported the associated phone number(s), we may at our sole discretion reallocate the number(s) associated with your account. 

7. Caller ID and Presentation

7.1 You are responsible for the CLI overstamping that is presented by your CloudPBX.

7.2 CLI overstamping must not be used for any unlawful or malicious purposes. 

8. Number Porting

8.1 By submitting a port request you confirm that you are authorised to act on behalf of the legal lessee of the numbers listed in the request. You authorise Cloud Kinnekt Pty Ltd (Trading as Cloud Kinnekt) to act on your behalf and to sign any associated paperwork for the purposes of porting the numbers listed above. You understand that Cloud Kinnekt Pty Ltd takes no responsibility if any of my other telecommunications services are disconnected as a result of my number port request and accept the additional terms laid out below.

8.2 Australian number porting fees will apply - Porting Charges 

8.3 You are responsible for settling your financial account with your current Service Provider if you owe them outstanding contractual obligations and costs. Cloud Kinnekt Pty Ltd is not liable for any such costs.

8.4 Cloud Kinnekt Pty Ltd provides no guarantee that it can port your telephone number from your current Service Provider. Your current Service Provider may reject this port request if the information you provide is incorrect or does not match the data held by them. A porting request may also be rejected for other reasons as stated in the Local Number Portability Code (C540), which is available on the Australian Communications and Media Authority website.

8.5 Cloud Kinnekt Pty Ltd are not responsible for any porting fees that may be charged by your current Service Provider.

8.6 Cloud Kinnekt Pty Ltd will pass on all Annual Numbering Charges (ANC) they incur from the Australia Communications and Media Authority (ACMA) in relation to telephones number that are ported to your account.

8.7 Cloud Kinnekt Pty Ltd provides no guarantee that the telephone number will be ported within any specified timeframe.

8.8 You must not deactivate your existing service when porting. Telephone numbers can only be ported while active.

8.9 Only your telephone number will be ported to Cloud Kinnekt. This may result in the loss of any value added services that are associated with the service provided by your existing Service Provider.

8.10 In the event of a port withdrawal or reversal, Cloud Kinnekt Pty Ltd is not responsible for any period of outage of the service or features of your current service or any value added service provided by your current Supplier.

8.11 If you change your mind and cancel the porting within 2 business days of the scheduled cutover date, then emergency return/reversal fees will apply.

8.12 You accept that Cloud Kinnekt takes no responsibility if any of your other telecommunications services are disconnected as a result of my number port request. This includes internet services and linked numbers. 

9. Data Services

9.1 We will provide the Service to you with reasonable care and skill.

9.2 Should unexpected faults hinder availability of the service Cloud Kinnekt will use reasonable endeavours to resolve those faults and restore the availability of the service as soon as possible.

9.3 We do not promise, warrant or guarantee that services will be continuous or fault-free. Due to the nature of Services (including reliance on systems and services owned and operated by third parties) circumstances causing faults and unavailability of your service may be beyond Cloud Kinnekt’s control. 

9.4 You understand and accept that the service will not protect against unauthorised access to the network.

9.5 Cloud Kinnekt provides no guarantee in relation to latency and bandwidth.

9.6 Protection inside the your network, is your responsibility, and Cloud Kinnekt takes no responsibility for risks and attacks from traffic within the your network.

9.7 Cloud Kinnekt does not guarantee the data service will achieve any specific speed at any given time as variables such as;

9.7.1 signal strength,

9.7.2 distance from exchange/node,

9.7.3 traffic and load,

will have an effect on connection speed and throughput.

9.8. IP addresses assigned to services provided by Cloud Kinnekt cannot be transferred to any other Internet Service Provider.

9.9 Cloud Kinnekt cannot request an IP Address from another Internet Service Provider to be used on any service provided by Cloud Kinnekt. 

10. Customer Obligations Regarding Provision of the Services

10.1 The Customer must:

10.1.1 ensure that it and each person who is authorised by the Customer to access and use the Services complies with these MSA terms and conditions and the terms of the Services Agreement;

10.1.2 provide all information required by Cloud Kinnekt to facilitate the installation and commissioning of the Services;

10.1.3 promptly obtain all permissions, consents or licences required for Cloud Kinnekt to enter and remain upon a Site in order to provide the Services; 

10.1.4 permit Cloud Kinnekt to access the Site(s) at any reasonable time for the purpose of providing the Services, including without limitation installing or removing any Equipment, and co-operate with any reasonable request by Cloud Kinnekt regarding the installation of the Equipment;

10.1.5 provide a suitable physical environment (e.g. floor space, power and climate control) as determined by Cloud Kinnekt for any Equipment located or to be located on a Site;

10.1.6 immediately notify Cloud Kinnekt after becoming aware of any:

10.1.6.1 planned or emergency power outage or shutdown of any environmental or climate control equipment that may affect a Site; and

10.1.6.2 damage to any Equipment howsoever arising;

10.1.7 notify Cloud Kinnekt as soon as reasonably practicable after becoming aware of any Faults in the Services;

10.1.8 only use the Services for lawful purposes; and

10.1.9 not use the Services for disruptive activities including but not limited to:

10.1.9.1 the distribution of any material that Cloud Kinnekt considers to be defamatory, offensive, threatening or malicious;

10.1.9.2 propagation of computer viruses, malware or similar products;

10.1.9.3 copying or distributing materials that it has no right to do so or that may constitute a breach of copyright or confidential information; 

10.1.9.4 any act that may infringe a third party’s intellectual property rights; or

10.1.9.5 any activity that Cloud Kinnekt considers would expose Cloud Kinnekt to any liability to a third party. 

11. Equipment Supplied by Cloud Kinnekt

11.1 Title to any Purchased Equipment passes to the Customer upon payment in full to Cloud Kinnekt . 

11.2 The Customer is responsible for all Purchased Equipment from when it is delivered to the applicable Site. 

11.3 If the Equipment includes any software, without limiting any of the Customer’s obligations under these terms, the Customer must:

11.4.1 comply with the terms of any licence required to use the software; and

11.4.2 not copy, modify, adapt, alter, reverse engineer, disassemble or decompile the software. 

12. Managed Equipment Supplied and Owned by Cloud Kinnekt

12.1 Title to any supplied Managed Equipment remains with Cloud Kinnekt.

11.3 The Customer acknowledges and agrees that:

11.3.1 title in the Cloud Kinnekt Equipment remains with Cloud Kinnekt at all times; 

11.3.2 it must promptly comply with all instructions given by Cloud Kinnekt in relation to Cloud Kinnekt Equipment;

11.3.3 it must not, and ensure that no third party, at any time interfere with, move, disconnect, attempt to repair or modify any Cloud Kinnekt Equipment without Cloud Kinnekt’s prior written consent; and

11.3.4 it is solely responsible for and indemnifies Cloud Kinnekt against any loss or damage howsoever caused to Cloud Kinnekt Equipment while Cloud Kinnekt Equipment is present on any Site except to the extent such loss or damage is caused by Cloud Kinnekt.

12.2 You are responsible for fully insuring the equipment against any loss.

12.3 Equipment must be installed into a temperature controlled environment and you must specifically ensure the equipment is receiving clean cooling as required to be operational. Accepted ideal temperature is between 20-24 degrees celsius.

12.3 Equipment must be connected to a surge protected power source at all times; you must specifically ensure the equipment is receiving clean power as required to be operational.

12.3 If the equipment is not returned in full working order, Cloud Kinnekt reserves the right to charge the Partner for a full replacement unit.

12.4 You may be granted READ ONLY access to the supplied equipment.

12.5 At the conclusion of the term, you have the option of returning the equipment (fully functionable) at the your cost, or continue the managed service on a month to month basis. 

13. Customer Supplied Equipment

13.1 The Customer is solely responsible for:

13.1.1 the acquisition, installation and maintenance of all Customer Equipment; and

13.1.2 any modification, reprogramming, cabling and connections required to interface any Customer Equipment with any Cloud Kinnekt Equipment, except to the extent expressly stated to form part of the Services in a Services Agreement. 

13.2 The Customer must:

13.2.1 ensure at all time that all Customer Equipment is kept in good working order, is safe to operate and does not pose a work health and safety risk to any person;

13.2.2 ensure at all times that all Customer Equipment complies with all Australian Standards and the requirements of any Australian laws or regulators; and

13.2.3 not at any time connect any Customer Equipment or other device to Cloud Kinnekt Equipment without the prior written consent of Cloud Kinnekt.

13.3 You acknowledge that work performed by Cloud Kinnekt on Customer Supplied Equipment;

13.3.1 is completed on a best efforts basis;

13.3.2 Cloud Kinnekt is not responsible for any hardware or software failure; and

13.3.3 any subsequent loss resulting from any failure or any damage to equipment or corruption of data. 

14. Monitoring and Suspension of the Services 

14.1 Cloud Kinnekt may at any time and at its discretion:

14.1.1 determine the technology used to provide the Services and the route taken by any information delivered, transmitted or carried by the Services;

14.1.2 monitor use of the Services to ensure compliance with the Services Agreement and this MSA;

14.1.3 intercept, collect or distribute any data for the purposes of complying with any law;

14.1.4 without limiting any under right under this MSA or a Services Agreement Cloud Kinnekt may suspend the whole or part of the Services if:

14.1.4.1 Cloud Kinnekt believes that the Customer is in breach of the Services Agreement or the terms of this MSA and such breach is not remedied within ten (10) days after Cloud Kinnekt gives the Customer notice to do so;

14.1.4.2 Cloud Kinnekt believes that a suspension is necessary to prevent or mitigate a risk to any person’s health, safety or welfare; 

14.1.4.3 Cloud Kinnekt believes that a suspension is necessary to protect against fraudulent or illegal use of the Services by any person; 

14.1.4.4 Cloud Kinnekt believes that there is a threat or risk to the security of the Services or the integrity of the Equipment; 

14.1.4.5 Cloud Kinnekt is required by law, or to comply with an order, direction or request of a court, regulatory authority or an emergency services organisation;

14.1.4.6 a Force Majeure event prevents Cloud Kinnekt from supplying the Services for more than ten (10) days; 

14.1.4.7 a Provider ceases to supply services to Cloud Kinnekt, and Cloud Kinnekt is not able to provide the Services using an alternative Provider on terms reasonably acceptable to Cloud Kinnekt; or

14.1.4.8 doing so is necessary to maintain, repair or restore any part of the Equipment used to supply the Services, or for other operational reasons. 

14.2 If Cloud Kinnekt suspends or intends to suspend the Services (whether in whole or in part) pursuant to clause 14.1.4;

14.2.1 Cloud Kinnekt will endeavour to provide as much notice as is reasonably possible in the circumstances; and

14.2.2 the Customer agrees that Cloud Kinnekt will not be liable in any way whatsoever or howsoever arising (including without limitation any negligent act or omission) to the Customer, or any person claiming through the Customer, for any loss, damage or claim arising in connection with the suspension of the Services. 

15. Monitoring and Suspension of the Services Continued

15.3 If the Services are suspended for any reason caused or contributed by the Customer, including without limitation any breach of the Services Agreement, breach of this MSA, or any negligent act or omission of the Customer, the Customer must pay Cloud Kinnekt immediately upon demand any amount incurred by Cloud Kinnekt to restore the Services and Cloud Kinnekt may continue to suspend the Services until such amounts are paid in full. 

16. Modifications

16.1 Cloud Kinnekt may at any time make any changes, modification or substitution to the Equipment or other technology required to deliver the Services, including Cloud Kinnekt Equipment, which:

16.1.1 is required to conform with any applicable safety or other statutory or regulatory requirements; or

16.1.2 improve the functionality or performance of the Services, provided that such changes do not materially detrimentally affect the quality or performance of the Services.

16.2 Cloud Kinnekt will use reasonable endeavours to notify the Customer of any changes required or proposed in accordance with clause 8.1 together any associated requirements (including for example additional access to any Site).

16.3 Additional Requirements

16.4 The Customer acknowledges and agrees that:

16.4.1 the Services together with the Services Fees are based upon the assumption that suitable infrastructure exists at each Site for the delivery of the Services by Cloud Kinnekt;

16.4.2 if additional works are required to modify, upgrade, replace, change or repair existing infrastructure Cloud Kinnekt will provide a quote to the Customer for such works prior to commencement; 

16.4.3 notwithstanding any inspection or assessment by Cloud Kinnekt of the suitability or availability of such infrastructure, if Cloud Kinnekt is unable to provide the Services at any time Cloud Kinnekt may at its election:

16.4.3.1 offer alternative goods or services in order to provide the Services; or

16.4.3.2 after consultation with the Customer, cancel the provision of any affected Services without liability to the Customer.

16.4.4 if the Customer does not accept:

16.4.4.1 a quote given under clause 16.4.2 within ten (10) days of the date of the quote; or 

16.4.4.2 alternative goods or services within ten (10) days of an offer made under clause 16.4.3.1,

Cloud Kinnekt may at any time thereafter cancel the provision of any affected Services without liability to the Customer.

17. Relocation

17.1 The Customer acknowledges and agrees that the Services are particular to the Sites, and may not be able to be provided at other locations.

17.2 If the Customer requests a relocation of the Services during the Term Cloud Kinnekt will use reasonable endeavours to investigate the extent to which a relocation of the Services may be possible.

17.3 Where Cloud Kinnekt determines that a relocation of part or all of the Services is possible it will provide a quote to the Customer to carry out a relocation of the relevant Services. 

17.4 Cloud Kinnekt has no obligation to relocate any Services unless and until the Customer accepts Cloud Kinnekt’ quote, signs any documents and pays any amounts required by Cloud Kinnekt to affect the relocation.

17.5 If the Customer does not accept Cloud Kinnekt’s quote within ten (10) days of the date of the quote it will be deemed to be rejected by the Customer and automatically withdrawn. 

18. Maintenance

18.1 The Customer acknowledges and agrees that:

18.1.1 Cloud Kinnekt may conduct Scheduled Maintenance from time to time;

18.1.2 Cloud Kinnekt will use reasonable endeavours to conduct Scheduled Maintenance outside of normal business hours but this may not always be possible;

18.1.3 Cloud Kinnekt may be required to conduct Unscheduled Maintenance at any time;

18.1.4 during any period of maintenance, the Services may not be available or may not perform at optimum levels;

18.1.5 any period of maintenance will not be attributable to the determination of any Service Level.

18.2 If Cloud Kinnekt is required to conduct Unscheduled Maintenance due to:

18.2.1 any negligent act or omission of the Customer (including its employees, agents and contractors) or a third party;

18.2.2 a breach of the Services Agreement or the terms of this MSA; or

18.2.3 Force Majeure,

Cloud Kinnekt reserves the right to charge the Customer:

18.2.4 the costs to conduct the Unscheduled Maintenance at the rates set out in the Services Agreement, or if no rates are specified, at such rates that Cloud Kinnekt may reasonably determine; 

18.2.5 the costs of repairing or replacing any Equipment affected by the Unscheduled Maintenance; and

18.2.6 the costs incurred by Cloud Kinnekt from Provider in connection with the Unscheduled Maintenance. 

19. Faults

19.1 When reporting a suspected Fault in the Services the Customer must provide to Cloud Kinnekt details identifying the affected Services to such particularity as requested by Cloud Kinnekt (including the location of the affected Service).

19.2 Cloud Kinnekt will analyse the cause of the suspected Fault and take reasonable steps to determine if the suspected Fault is in fact a Fault. 

19.3 Cloud Kinnekt may be unable to provide Fault restoration where the fault is in a network owned or maintained by any person other than Cloud Kinnekt

19.4 Where Cloud Kinnekt considers that a Fault has occurred, Cloud Kinnekt will undertake to rectify the Fault as soon as reasonably practicable. 

19.5 Where an on-Site visit is required, Cloud Kinnekt will arrange an appointment time with the Site Contact. 

19.6 The Customer is responsible for all Provider and third party charges for maintenance, repair or otherwise to Equipment the subject of a Fault, and for the fee charged by Cloud Kinnekt for any relevant on-Site visit made in accordance with clause 19.5. 

19.7 If Cloud Kinnekt attends a Site in response to a Fault report and the Fault is found to be in or due to Customer Equipment, the Fault will be deemed as Unscheduled Maintenance and clause 18.2 will apply.

19.8 If Cloud Kinnekt must gain access to an affected Site to restore the Services, the response time and restore time will be subject to the provision of entry to the Site, and delays in the provision of such access will result in a corresponding adjustment of any applicable Service Level.

19.9 Cloud Kinnekt’s obligations do not extend to Faults caused as a result of: 

19.9.1 any fault in equipment, software or any network not forming part of the Services or the Equipment; or 

19.9.2 damage due to causes external to the Service or the Equipment. 

20. Charges and Payments

20.1 During the Term Cloud Kinnekt will provide the Customer with Invoices and the Customer must pay each Invoice within the period set out in the Services Agreement, or if no period is specified in the Services Agreement, fourteen (14) days after the date of the Invoice (Due Date).

20.2 Interest accrues daily on all amounts overdue for payment from the day immediately following the relevant Due Date up to the date of actual payment. The rate of interest is a rate equal to 1.5% per month calculated on a daily basis.

20.3 If the Customer fails to pay any amount owing to Cloud Kinnekt by the due date and fails to pay that amount within ten (10) days after Cloud Kinnekt gives notice requiring payment of that amount Cloud Kinnekt may, without limiting its other rights, suspend or restrict the whole or any part of the Services without liability to the Customer until the outstanding amount has been paid in full.

20.4 If the Customer disputes an amount set out in an Invoice the Customer must:

20.4.1 notify Cloud Kinnekt in writing within 14 days of the date of the invoice setting out the reasons for its dispute and the amount in dispute; and

20.4.2 pay any undisputed amount in accordance with clause 20.1.

20.5 Within a reasonable time after receipt of a notice under clause 20.4.1 Cloud Kinnekt will respond to the Customer and:

20.5.1 accept the dispute notice and adjust the relevant Invoice; 

20.5.2 propose an alternative resolution to the dispute; or

20.5.3 reject the notice and provide reasons in writing for such rejection.

20.6 If:

20.6.1 the Customer does not accept an alternative resolution in accordance with clause 20.5.2 within 5 days of receipt of the proposal; or 

20.6.2 a notice is rejected pursuant to clause 20.5.3, without prejudice to the rights of the parties at law the Customer must immediately pay the balance of the disputed Invoice.

20.7 You are responsible for your account and must pay our charges regardless of whether you or someone else uses those services.

20.8 In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including legal demand costs. 

21. Taxes, Licence Fees & Government Charges

21.1 The Customer is liable for taxes, including any GST, duties, levies, licensing fees or government charges relating to the provision of the Services (Taxes).  

21.2 Unless expressly stated to the contrary the fees stated in a Services Agreement include all Taxes.

21.3 If at any time there is a change in any Taxes for any reason, including but limited to a change in any law, Cloud Kinnekt may adjust the Services Fees and the Customer must pay the amount reflecting the impact of such change with effect from the date that such change in the Taxes took effect. 

22. PPSR

22.1 The Customer:

22.1.1 charges all of its right, title and interest in, to the Customer Equipment and the Purchased Equipment to Cloud Kinnekt to secure the full and prompt payment of the Secured Money to Cloud Kinnekt; and

22.1.2 agrees that Cloud Kinnekt may take all necessary steps to protect its interest in the Equipment, including without limitation the Cloud Kinnekt Property.

22.2 The Customer agrees with Cloud Kinnekt that each Services Agreement constitutes:

22.2.1 a purchase money security interest for the purposes of the PPSA; and

22.2.2 an equitable interest in the Customer Equipment and Purchased Equipment.

22.3 The Customer unconditionally and irrevocably consents to Cloud Kinnekt registering a financing statement on the PPSR against the Customer in any manner Cloud Kinnekt considers appropriate in order to protect its rights and interests created by clause 22.1.

22.4 To the extent the law permits, in respect of the purchase money security interest created by clause 22.1, the Customer and Cloud Kinnekt agree to contract out of all provisions of the PPSA which the PPSA permits them to contract out of and they each waive any rights they would otherwise have under the PPSA to receive any notices from the other party.  

22.5 Without limitation to clause 22.4, the Customer waives its right to receive any verification statement it would otherwise be entitled to receive in relation to any financing statement which is registered against it by Cloud Kinnekt on the PPSR. 

22.6 A certificate signed by or on behalf of Cloud Kinnekt will be conclusive evidence against the Customer, in the absence of manifest error, as to the amount of Secured Money stated in the certificate.

22.7 In the event the Customer is in default of its obligations under a Services Agreement, the Customer must reimburse Cloud Kinnekt (on a full indemnity basis) upon demand for:

22.7.1 any registration fees which are paid by Cloud Kinnekt in connection with clause 22.3; and 

22.7.2 all and any expenses incurred by Cloud Kinnekt in connection with any exercise or attempted exercise of any power, right, authority, discretion or remedy conferred on Cloud Kinnekt under this MSA or the PPSA (including without limitation Cloud Kinnekt’s legal costs and debt collection costs). 

23. Force Majeure

23.1 If Cloud Kinnekt’s performance of its obligations under a Services Agreement is affected by Force Majeure it will advise the Customer, specifying the nature and extent of the Force Majeure and use reasonable endeavours minimise the impact of the Force Majeure.

23.2 If a Force Majeure continues for more than 60 days, either party may terminate the affected Services Agreement without liability to the other party by providing the other party with written notice to that effect. 

24. Credit Reporting

24.1 The Customer authorises Cloud Kinnekt to disclose any Customer information (including Confidential Information) made available to Cloud Kinnekt to: 

24.1.1 obtain commercial credit information from a credit reporting agency; and

24.1.2 obtain information about the Customer’s commercial activities or credit worthiness from a business that provides that information. 

25. Termination & Cancellation

25.1 Without limiting any other rights under a Services Agreement or this MSA Cloud Kinnekt may terminate a Services Agreement by providing written notice to the Customer if:

25.1.1 Cloud Kinnekt reasonably determines that it is not technically, commercially or operationally feasible to supply one or more Services to the Customer at any time prior to the Start Date; 

25.1.2 if the Customer is in breach of a Services Agreement or the terms of this MSA and does not remedy that breach within thirty (30) days after Cloud Kinnekt gives notice requiring the Customer to do so; or

25.1.3 a Provider ceases to supply services to Cloud Kinnekt, and Cloud Kinnekt is not able to provide the Services using an alternative Provider on terms reasonably acceptable to Cloud Kinnekt within thirty (30) days of the cessation of supply to Cloud Kinnekt.

25.2 The Customer may terminate a Services Agreement at any time by providing not less than ninety (90) days prior written notice to Cloud Kinnekt.  

25.3 Upon termination of a Services Agreement the Customer must immediately: 

25.3.1 pay to Cloud Kinnekt all amounts incurred in relation to the Services up to the date of termination;

25.3.2 if the termination:

25.3.2.1 occurs before the end of the Minimum Term; and

25.3.2.2 does not arise under clause 25.1.1, pay the Break Fee to Cloud Kinnekt; 

25.3.3 pay to Cloud Kinnekt any outstanding amounts for all Purchased Equipment; and

25.3.4 at its cost, return to Cloud Kinnekt all of Cloud Kinnekt’s Equipment. 

26. Confidentiality

26.1 The parties each agree that they will:

26.1.1 not disclose any Confidential Information, except to the extent required by law or where such disclosure is made to an officer or employee of the party on a limited basis to give effect to the terms of a Services Agreement; and

26.1.2 use the Confidential Information only for the purposes of fulfilling a Services Agreement.

26.2 The Customer acknowledges and agrees that Cloud Kinnekt may disclose the Customer’s personal information to any Providers if it is relevant to the provision of the Services to the Customer or to any other person nominated by the Customer. 

27. Indemnity

27.1 The Customer hereby indemnifies Cloud Kinnekt against all liability, loss, expense (including legal costs) or claim incurred by Cloud Kinnekt howsoever arising in connection with:

27.1.1 a breach by the Customer of a Services Agreement or this MSA; and

27.1.2 any negligent act or omission of the Customer.

27.2 The Customer’s liability under clause 27.1 will be reduced to the extent caused or contributed to by Cloud Kinnekt as determined by a court of competent jurisdiction. 

28. Limitation of Liability

28.1 To the extent permitted by law, any warranties, conditions or terms which are not expressly stated in this MSA are excluded. 

28.2 Where any warranties, conditions or terms are implied by law and are unable to be excluded (including any such warranties, conditions or terms under the Competition and Consumer Act 2010 (Cth)), then Cloud Kinnekt’s liability in respect any such warranties, conditions or terms shall be limited to replacing or re-supplying any affected goods or re-performing the affected Services.

28.3 Without limiting any rights under the Competition and Consumer Act 2010 (Cth)), Cloud Kinnekt will be under no obligation to repair or replace goods or re perform the Services where:

28.3.1 a defect is attributable to any fair wear and tear relating to the Services or the Equipment;

28.3.2 the Services, including without limitation the Equipment, have been improperly altered in any way, or have been subject to misuse or unauthorised repair;

28.3.3 any Services have been improperly installed or connected (other than by Cloud Kinnekt);

28.3.4 any maintenance requirements relating to the Equipment have not been complied with (except where required by Cloud Kinnekt under a Services Agreement); or

28.3.5 any instructions as to the use or storage of the Equipment have not been complied with.

28.4 The parties agree that in no circumstances is Cloud Kinnekt liable for any Consequential Loss in connection with the provision of any Services, irrespective of how such Consequential Loss arises, including whether through breach of contract, tort (including negligence), under an indemnity, under statue or under any other cause of action. 

29. Disputes

29.1 A party shall not commence court proceedings or any other external dispute resolution process without first complying with this clause 21.

29.2 If a party considers that a dispute has arisen it must promptly notify the other party in writing setting out the nature of the dispute 

29.3 The parties shall negotiate in good faith and use all reasonable efforts to resolve a dispute as quickly as practicable after a Dispute Notice is issued.

29.4 If the Dispute is not resolved within thirty (30) days of the Dispute Notice being issued  and the parties have not been able to agree on an alternative dispute resolution process (including mediation, arbitration or expert determination) for resolving the Dispute, either party may commence legal proceedings in respect of the Dispute. 

29.5 The parties shall, despite any Dispute occurring, continue to perform their respective obligations under each Services Agreement. 

30. Waiver

30.1 Failure by either party to enforce a condition of a Services Agreement or this MSA shall not be construed as in any way affecting the enforceability of that condition or the Services Agreement or this MSA as a whole. 

31. Assignment

31.1 The Customer may not at any time without the prior written consent of Cloud Kinnekt, which may be withheld at its sole discretion, assign or attempt to assign its rights under a Services Agreement or novate or attempt to novate its rights or obligations under a Services Agreement.

31.2 The Customer hereby consents to Cloud Kinnekt assigning its rights or novating its rights and obligations under Services Agreement at any time to any person provided that any novation is on terms no less advantageous than the existing Services Agreement. 

32. Severability

32.1 If any part of a Services Agreement or part of this MSA is unenforceable, it shall be severed and the remaining parts shall continue to apply. 

33. Governing Law

33.1 This MSA is governed by the laws of the Australian Capital Territory and the parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction in the Australian Capital Territory.