Terms and Conditions.

1. DEFINITIONS AND INTERPRETATION

Last updated 13/09/2022
1.1. Definitions
1.1.1. “Document” includes any note, memorandum, record, report, financial information, summary, analysis, circulation, strategic assessment, market survey, business plan, computer program, computer record, drawing, specification, material or any other means by which information may be stored or reproduced. 1.1.2. “Intellectual Property” means all or any of the following: 1.1.2.1. the names “Private Universe” and “PBX Blue”; 1.1.2.2. any trade name, brand name, product name, tag line, or trade mark associated with PBX Blue; 1.1.2.3. know-how, being technical or other information or experience or trade secrets devised, developed or acquired by PBX Blue and applied to the manufacture and sale of the PBX Blue products and services; 1.1.2.4. designs whether or not registered or protected by copyright devised or acquired by PBX Blue and applied to the PBX Blue products and services; 1.1.2.5. vendor commercial arrangements, agreements, quotations, licences, price lists and distribution alliances; 1.1.2.6. any other right in connection with the PBX Blue products and services to which PBX Blue is entitled. 1.1.3. “Month” means calendar month. 1.1.4. “PBX Blue products and services” means the products and services of PBX Blue as defined in Schedule 1 and which may be amended (by additions or deletions) from time to time by notice in writing from PBX Blue to the Customer. 1.1.5. “Term” means the period commencing on the Agreement Date and continuing until terminated in accordance with the terms of this Agreement. 1.1.6. “Territory” means the Sales Territory as defined in PBX Blue’s internal systems.
1.2. Interpretation
In this Agreement unless the context requires otherwise: 1.2.1. Headings to clauses are included for the sake of convenience only and shall not affect the interpretation of the clauses to which they relate. 1.2.2. References to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any orders, regulations, instruments or other subordinate legislation made under the relevant statute. 1.2.3. The word “person” means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee or not. 1.2.4. This Agreement shall bind each party’s legal personal representatives, successors and assign. 1.2.5. When a party comprises two or more persons the rights and obligations of such persons pursuant to this Agreement shall ensure for the benefit of and bind all of them jointly and each of them severally.  

1. GENERAL TERMS AND CONDITIONS

The PBX Blue Customer Service Agreement constitute the agreement ("Agreement") between PBX Blue and the Customer ("The Customer"). This Agreement governs both the service as defined in this Agreement (“Service”) and any devices and equipment including terminal adapters and broadband terminals ("Equipment") used in conjunction with the provision of PBX Blue’s services. By activating the Service, the Customer acknowledges having read and understood, and the Customer agrees to the terms and conditions of this Agreement, and the Customer represents being of legal age to enter this Agreement and become bound by its terms. Any further references to schedules or addendums which contain hosting costs, call rates and subscription rates can be located by the Customer at the website of PBX Blue (www.pbxblue.com) or upon request by the Customer to PBX Blue.

2. CALL CHARGES, RATES AND FEES

a) All rates and fees are in Australian dollars. b) All rates and charges are ex GST unless specified differently. c) Prices quoted do not include any onsite costs unless specified. d) Call charges shall apply for any answered call whether the called party is an answering machine, disconnected service, wrong number, service switch-off announcement or actual conversation. The call charge begins when the call is answered and ends when the call is terminated.

3. SERVICE PROVISION

a) PBX Blue agrees to supply the Customer and the Customer agrees to acquire the following Service and / or Equipment conditions (“Service”). a. Onboarding of service including extension creation and call routing b. Single SIP trunk and DID c. Change requests; and d. PBX Blue related support b) This Agreement for supply of Service and / or Equipment will become effective on the day the service order form is signed and will continue for the minimum term, if any, and then on a monthly basis. c) Upon signing this Agreement, the Customer gives PBX Blue the authority to order the Equipment, if any, and Services and agrees to pay any costs associated with the Equipment and Services. d) The Customer shall nominate a contact person at each installation location, inform them of the impending installation and have them instruct the installer of the exact location for installation of the Services at those sites. e) The Customer acknowledges that PBX Blue may provide the Service using a combination of PBX Blue facilities and access tails or facility supplied by another supplier(s) used to complete supply of the Service to The Customer. f) The installation target for the provision of new voice and broadband Internet data services is up to 6-8 working weeks. PBX Blue will use reasonable endeavours to meet the Customer delivery date for supply of the Service but PBX Blue does not represent or warrant that PBX Blue will deliver the Service by that date. g) The Customer acknowledges and agrees that before commencing supply of the Service PBX Blue may, as reasonably determined by PBX Blue, need to modify or install equipment and make arrangements with other suppliers for the provision of the Service. h) PBX Blue reserves the right to vary the method of provisioning the Service and the equipment used to provide the Service. However, any such variation will not impair the provision of the Service to the Customer. i) The Customer must comply with any reasonable instructions given by PBX Blue and provide all information and assistance reasonably required by PBX Blue, in order to enable PBX Blue to comply with any request or direction of a government agency, emergency services organisation or other competent authority for reasons of health, safety or the quality of the Service; j) PBX Blue does not guarantee to provide the Customer with static IP addresses which may change for reasons outside of PBX Blue control. k) PBX Blue reserves the right to provide its services to any Customer at its absolute discretion. If PBX Blue decides not to supply PBX Blue’s products and services to the Customer, PBX Blue shall refund any monies paid for the services that have not been used. The Customer shall not be entitled to any form of compensation whatsoever in respect of such cessation, whether for loss of revenue or otherwise.

4. SERVICE ACTIVATION

a) The PBX Blue Service will only be activated upon agreeing to this Agreement and signing a service order form. b) Upon signing the service order form, the Customer is required to pay in full the Equipment costs (if the Customer chooses a “purchase option” in the service form) and any initial one-off charges before Service activation. c) The Customer shall pay for the installation and recurring fees for the Service once the installation is completed regardless of whether the Service is actually used.

5. USE OF SERVICE

a) The Customer must not use or permit any use of the Service: i. to transmit any defamatory, abusive, menacing, threatening, harassing or illegal material or any unsolicited material of an offensive, obscene or indecent nature or otherwise contrary to law or any applicable code of conduct; ii. in any manner which constitutes a violation or infringement of any duty or obligation on contract or tort or otherwise, to any third party; or iii. in, or in relation to, the commission of an offence against any applicable law. b) The Customer is responsible for all usage charges in respect of the use of the Service via existing equipment, e.g. lost mobile devices with provisioned clients, whether or not such usage was authorized. It is the Customer’s responsibility to maintain the security of the means of access to the Service from all the Customer’s devices and ensure unauthorized use does not occur. c) Other than as specifically provided in this Agreement and quotation, PBX Blue shall not be obliged to maintain or upgrade hardware or software to the Customer. This only applies to upgrades on Customer devices, e.g. laptops, tablets, mobile phones etc. It does not apply to the PBX itself. d) PBX Blue will pass all third-party suppliers’ hardware, software and service warranties to the Customer.

6. SERVICE LEVEL

a) PBX Blue will use reasonable endeavours to the service levels and will undertake to provide the Service using all the reasonable skill and care of a competent service provider. b) PBX Blue Performance targets: i. 99.95% Uptime for the AWS EC2 Cloud Server/PBX ii. 99.95% for the SIP Trunk; and iii. 99.9% network availability; c) Availability means a measurement of the percentage of the voice service is operative. d) When network availability is compromised in excess of one hour during a calendar month, the Customer may receive a service rebate for the downtime as follows; i. Service credits of 10% are applied for uptime of 99.95 - 99.90, and ii. 30% for lower than 99.90. e) Where the Customer reports faults with the Service, PBX Blue will promptly perform, or arrange to be performed, appropriate tests to determine the location and cause of any fault. The Customer must provide all necessary assistance to enable location and repair of any fault which is PBX Blue responsibility or the responsibility of an outside supplier whose network PBX Blue is interconnected to. f) Where PBX Blue determines, acting reasonably, that there is a fault within the PBX Blue Service, PBX Blue is responsible for correcting the fault. g) PBX Blue resells broadband links from other providers. The service level is in accordance with the service level agreement provided by the respective providers. h) The performance of the broadband links provided is subject to the quality and conditions of the physical lines and the distance from the local exchange. i) PBX Blue is responsible for the network performance up to the point of demarcation. The service level and quality beyond the demarcation point is the responsibility of the Customer j) PBX Blue provides free technical support remotely during business hours between 8:00 am to 5:00 pm, Monday to Friday (excluding public holidays) AEST for the part of the network service that PBX Blue provides, and do not provide support for any part that is not supplied by PBX Blue. k) For after-hours and weekend support, PBX Blue charges an after-hour support fee per request as stated on PBX Blue rate card, and undertakes to respond back to the Customer within an hour. The time taken to resolve the problems/faults may take longer than this. l) PBX Blue is not responsible for any fault which is within the network of any interconnected other supplier. We will notify the other supplier of the fault and request that the fault be corrected promptly but will bear no further liability or responsibility. m) The following exclusions are applicable and such faults will not be accepted: i. unavailability due to The Customer environmental issues such as lack of air-conditioning and power brown-out or outage at the Customer site; ii. unavailability due to excessive traffic as a result of activity such as spamming, virus attacks and denial of service; iii. Major cable cuts, acts of god, war, government directions and strikes and lock-outs are excluded from the service level targets. n) Where payments to PBX Blue for Equipment and/or Service are overdue, the Customer will not be entitled to claim a rebate for network unavailability. o) PBX Blue shall supply parts, assemblies and sub-assemblies, materials and service necessary to maintain the Equipment according to its specifications; p) The Customer acknowledges that PBX Blue cannot guarantee uninterrupted or error free operation of the Equipment while service activities are in progress.

7. EXCLUDED ITEMS

The PBX Blue Cloud Hosted Service does NOT include: a) Call charges; b) Additional number (DID) hosting; c) Any network related support, configuration of QoS on the customer networking hardware, dealing with local IT support personnel, 3rd parties etc; d) IT Support for installing 3CX Client software to desktops, laptops and/or mobile devices; e) Support for headset/audio device pairing, setup, configuration etc. f) Porting of existing numbers to PBX Blue; g) Provisioning unsupported phones or phones sourced elsewhere; i.e. not from PBX Blue; h) Repair or support of any Equipment not provided by PBX Blue; i) Repair or replacement of any battery back-up associated with the Equipment; j) Repair or replacement of headsets and headset accessories, analogue phones, and cordless phones; k) Repair of any malfunction whatsoever caused, in PBX Blue’s opinion, by incorrect operation of the Equipment or from the Customers (or its servants or agents) misuse of the Equipment or failure to observe and operate the Equipment in accordance with the manufacturers published instructions; l) Repair of any malfunction or damage whatsoever caused by lightning, electrostatic interference, electromagnetic interference or power surges of any type howsoever caused; m) Repair of any malfunction or damage whatsoever caused by the failure or fluctuation of electrical power, air-conditioning or humidity control; n) Repair of any malfunction or damage whatsoever caused by entry of foreign objects, such as water, liquid, animals or plants; o) Repair of any malfunction or damage whatsoever caused to the Equipment by war, fire, flood or any Act of God; p) Repair of Equipment, which in the opinion of PBX Blue was caused by other contractors working on the Equipment;

8. THE CUSTOMER RESPONSIBILITIES

The Customer agrees to: a) The proper use of the Equipment at all times in accordance with operating manuals; b) PBX Blue being the only provider of services to the Equipment; c) Ensure that PBX Blue service staff has prompt and free access to the Equipment as required; d) Provide a suitable environment for the effective servicing of the Equipment; e) Provide conditions which are consistent with Equipment specifications and that the necessary auxiliary services for the operation of the Equipment are available; f) Provide adequate storage for spare parts including consumable parts held onsite.

9. SERVICE ORDER CANCELLATION

a) The Customer must advise PBX Blue, in writing, if they wish to cancel the Service. All cancellations require 30 days’ written notice.

10. FAIR USE POLICY

a) It is important to PBX Blue that all eligible PBX Blue customers are able to access our services. For this reason, and to ensure the provision of quality and reliability of our services, a fair use policy applies to all our services utilising the ‘Fixed Price Trunks’. These fixed price trunks are not intended for use by outbound call centres. There must be a minimum inbound call volume of at least 20% of the total call volume when using the fixed price trunks. We reserve the right to vary the terms of this fair use policy from time to time. b) If the Customer use of the Service is excessive or unreasonable PBX Blue will contact the Customer by phone or email, using the contact details the Customer has provided to PBX Blue advising that the Customer is in breach of the fair use policy.

11. EMERGENCY SERVICES - 000 DIALLING

Dialling 000 for Emergency Services will not work in the following situations; a) Loss of Service due to power failure or Internet service outage or termination or suspension or termination by PBX Blue b) The Customer acknowledges and understands that the Service requires a business grade broadband connection to the Internet and does not function in the event of power failure. In the event of termination of service by The Customer’s Internet service provider ("ISP") and / or broadband provider, the PBX Blue Service will not function, but that The Customer will continue to be billed for the Service unless and until The Customer or PBX Blue terminate the Service in accordance with this Agreement. Should there be an interruption in the power supply or ISP broadband outage, the Service will not function until power is restored or the outage finished, requiring the Customer to reset or reconfigure Equipment prior to utilising the Service. c) Broadband service / ISP outage or termination / suspension by PBX Blue i. The Customer acknowledges and understands that power or service outages or suspension or termination of service by The Customer’s broadband provider and / or ISP or by PBX Blue will prevent ALL Service including emergency 000 dialling until such time the outage is restored by third parties or PBX Blue Service is restored (which may require payment of all invoices and reconnection fees owed by The Customer or cure of any breach by The Customer of this Agreement). d) Service outage due to suspension of The Customer account i. The Customer acknowledges and understands that service outages due to suspension of The Customer’s account as a result of billing issues will prevent ALL Service, including 000 dialling. e) Other Service outages i. The Customer acknowledges and understands that if there is a service outage for ANY reason, such outage will prevent ALL Service, including 000 dialling. Such outages may occur for a variety of reasons, including, but not limited to those reasons described elsewhere in this Agreement. f) Limitation of liability and indemnification i. The Customer acknowledges and understands that PBX Blue's liability is limited for any Service outage and / or inability to dial 000 from the Customer’s line or to access emergency service personnel, as set forth in this document. The Customer agree to defend, indemnify, and hold harmless PBX Blue, its officers, directors, employees, affiliates and agents and any other service provider who furnishes services to the Customer in connection with this Agreement or the Service, from any and all claims, losses, damages, fines, penalties, costs and expenses (including, without limitation, reasonable solicitors’ fees) by, or on behalf of, the Customer or any third party or the Customer of the Customer's Service relating to the absence, failure or outage of the Service, including 000 dialling and / or inability of the Customer or any third person or party or the Customer of the Customer's Service to be able to dial 000 or to access emergency service personnel.

12. PBX BLUE SERVICE

a) Term The term of this Agreement is month to month. The termination of Service does not excuse the Customer from paying all unpaid, accrued charges due in relation to the Agreement. PBX Blue reserves the absolute right to provide the Service to any the Customers at its sole discretion and is not obliged to disclose the reason of refusal. b) Lawful use of Service and Equipment The Customer agrees to use the Service and Equipment only for lawful purposes. This means that the Customer agrees not to use them for transmitting or receiving any communication or material of any kind when in PBX Blue's sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offence, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offence, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. PBX Blue reserves the right to terminate the Customer’s Service immediately and without advance notice if PBX Blue, in its sole discretion, believes that the Customer has violated the above restrictions, leaving the Customer responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable and may at PBX Blue's discretion be immediately charged to The Customer’s credit card. c) Tampering with the Service PBX Blue reserves the right to terminate the Customer’s Service should the Customer tamper with the Equipment, leaving the Customer responsible for the full month's charges to the end of the current term, including without limitation unbilled charges, plus a disconnect fee, all of which immediately become due and payable. The Customer agrees not to hack or disrupt the Service or to make any use of the Service that is inconsistent with its intended purpose or to attempt to do so. d) Service Relocation i. The Customer is liable for fees & charges payable in relocating its PBX Blue Services to another location required by The Customer. ii. The Customer is solely responsible for any materials and labour hours which may be required to effect the relocation. e) Service plan upgrades / downgrades The Customers can upgrade to a different PBX Blue service plan at any time and can downgrade to a different service plan at any time. f) Termination / discontinuation of Service i. The Customer is responsible for making payment to keep their accounts up to date in accordance with the account status. PBX Blue may terminate the Service without further notice if the Customer fails to pay on-time. ii. Discontinuing the use of PBX Blue Service by the Customer does not automatically lead to Service termination. The Customer is liable to all fees and charges incurred until a written notice to cancel the Service is received by PBX Blue. iii. PBX Blue reserves the right to discontinue providing the Service generally, or to terminate The Customer’s Service, at any time at its sole discretion. The Customer will be responsible for the full month's charges to the end of the current term including and without limitation unbilled charges, all of which immediately become due and payable. Notwithstanding the reasons for terminating / discontinuing the Service, PBX Blue is not responsible for any adverse consequence to the Customers arising from Service termination. iv. Outgoing telephone numbers a. The Customer acknowledges and understands that The Customer can make outgoing calls to most public switched telephone numbers with the exception of some special service numbers including directory assistance, time, 1900 and others. PBX Blue is not liable for any claims, losses, damages, costs and expenses as a result of The Customer not being able to call these special service numbers. g) Direct in dial (DID) numbers i. PBX Blue may provide The Customer with DID numbers. The DID numbers are a public resource in Australia and are leased with a fee by service providers from the Australian government. If the Customer is provided with DID numbers, The Customer acknowledges that The Customer does not own the numbers and is willing to pay a fee for the use of the numbers while The Customer has a Service with PBX Blue. The Customer will return the numbers to PBX Blue if The Customer ceases to be a Customer unless there is porting arrangement. ii. In accordance with Telecommunications Numbering Plan Variation 2011 (No. 1), The Customer acknowledges that DID numbers provided to the Customer by PBX Blue, may not be possible to port to another carriage service provider if the Customer decides to terminate the Service with PBX Blue. iii. If the Customer is located in an area which is not the charging district for the geographic number to be issued to the Customer, calls to the number may be charged as if the Customer was located within the relevant charging district for the geographic number. h) Support PBX Blue provides support only to the Customers who use the Service in Australia. No support is provided to overseas Customers who use the Equipment and Service outside of Australia. i) Priority assistance service PBX Blue does not provide priority assistance service as defined in the Communications Alliance Industry Code ACIF C609:2007 “Priority Assistance for Life Threatening Medical Conditions”. The code states ‘There are currently no regulatory obligations on providers other than Telstra that require the offering of Priority Assistance to The Customers’.

13. BILLING AND CHARGES

a) Billings i) PBX Blue will endeavour to invoice the Customer monthly by the 7th day of each month but reserves the right to bill at different intervals to the Customer. PBX Blue will provide the Customer with a breakdown of the fees and charges payable in each invoice. PBX Blue’s records will be conclusive evidence of usage of the Service and the charges payable by the Customer. Notwithstanding this, the Customer may dispute an invoice if the Customer reasonably believes that the Customer is not liable to pay the charges because of an inaccuracy, omission or error in the invoice. For the avoidance of doubt, this does not affect the Customer’s obligation to make payment in full by the due date. If the parties agree that the dispute is valid, The Customer’s account will be credited the relevant amount. ii) PBX Blue will invoice for, and the Customer will be liable for all charges in respect of the Service commencing on and from the Service start date. iii) Unless otherwise expressly stated in the Agreement, PBX Blue will bill the Customer in advance for installation and recurring charges; and in arrears for usage-based charges. iv) Processing and verification procedures (including delays in receipt of billing information) may mean that not all charges during the period covered by a bill can be included in that bill. PBX Blue may include those charges in subsequent bills. v) PBX Blue reserves the right to re-issue any bill if any error is subsequently discovered. vi) The Customer is liable for all charges whether or not the Customer authorised the particular use of the Service by another person and the Customer will continue to be liable for the charges if the Customer allows another person to occupy The Customer’s premises or use the Service. vii) Invoices shall be deemed to have been received by The Customer on the day the invoice is emailed to The Customer. viii) PBX Blue only provides invoices in electronic format for all Service types to an email address nominated by the Customer and does not provide paper invoices. It is the responsibility of the Customer to provide PBX Blue with the correct email address and advise PBX Blue of any change. ix) The Customer may pay the Service charges and Equipment by direct debit of The Customer’s credit card or nominated bank account. If The Customer provides PBX Blue with a valid credit card number (Visa, MasterCard, American Express or any other issuer then-accepted by PBX Blue) when the Service is activated. PBX Blue reserves the right to stop accepting credit cards from one or more issuers. If the card expires, The Customer closes The Customer’s account, The Customer’s billing address changes, or the card is cancelled and replaced owing to loss or theft, The Customer must advise PBX Blue at once. PBX Blue will bill all charges, applicable taxes and surcharges monthly in advance. Any usage charges will be billed in increments that are rounded up to the nearest minute. b) Payments i. Where a minimum monthly fee is specified and agreed in the service order form, that amount will apply even if the Customer has incurred lower usage or no usage in that calendar month. ii. The Customer must pay all fees and charges, that are not in dispute, by the due date being 14 days from the date of the invoice; iii. Failure to make payment on the due date will constitute a material breach of the Agreement between The Customer and PBX Blue. Under this circumstance, PBX Blue will send the Customer notices of payment and the Customer will have the following restrictions applied: a. More than 2 days overdue, the trunk throttled to a single concurrent call until payment is received in full; b. More than 7 days, the PBX Blue Service will be suspended until payment is received in full. PBX Blue reserves the right to impose a reinstatement fee of $250 (ex GST) in this situation. iv. If the Customer fails to pay an overdue invoice after repeated notices from PBX Blue, PBX Blue has the rights to pursue whatever legal and other means available to recover the outstanding debt, which may involve an external agency for debt collection. v. PBX Blue reserves the rights to default the Customer to an external credit rating agency after The Customer has failed to pay an overdue invoice and PBX Blue has sent the Customer notices of payment. vi. PBX Blue reserves the right to charge a late payment fee of 1.5% of the overdue invoice. vii. The Customer will be liable to pay to PBX Blue all expenses (including reasonable legal costs and expenses and the fees of PBX Blue’s debt recovery agents) incurred by PBX Blue in relation to recovering payments due under this Agreement. viii. PBX Blue reserves the right to withdraw any discounts that the Customer receives from PBX Blue in connection with the supply of the Service where payment is not received. ix. The charges for the Service do not include any amount on account of tax. If any tax is payable by PBX Blue in relation to, or on any supply under or in connection with, this Agreement, PBX Blue will increase the charges or charge the Customer an additional amount on account of the tax. These will be the Customer’s responsibility and will be itemised on the Customer’s bill or an adjustment note. x. Where PBX Blue becomes liable to any penalties or interest as a result of the late payment of any tax (whether the tax is included in an amount of consideration expressed in this Agreement or not), due to the Customer’s failure to comply with the terms of this Agreement or The Customer’s obligations under any applicable law, then an additional amount equal to those penalties and interest will be payable to PBX Blue. xi. The Customer acknowledges and agrees that PBX Blue may at PBX Blue’s discretion pay commissions to any of PBX Blue’s agents, representatives or retailers who introduce the Customer to PBX Blue. c) Payments i. PBX Blue has partnered with IntegraPay for the automated payment of all Customer’s monthly invoices. Prior to the Customer’s service going live, The Customer must register with IntegraPay and provide credit card or direct debit payment details. The secure link to the IntegraPay registration portal is https://payments.integrapay.com.au/ui/eddr/CE8F0A28-7E9E-49BA-A7C9-1B9B2157C521 ii. There are no additional fees for this method of payment, with the following exception. a. There is a dishonour fee for failed transactions of $5.50 if there are insufficient funds in The Customer’s nominated account or credit card at the time payment is processed. d) Billing Dispute i. In the event that the Customer disputes part or whole amount of any invoice, The Customer shall notify PBX Blue in writing (via email or letter) setting out the objection to the disputed amount within seven (7) working days in receipt of the invoice. Such notice shall contain the following information: b. date and number of disputed invoice; c. amount in dispute; d. reason for dispute; and e. supporting documentation as appropriate. ii. PBX Blue shall use reasonable endeavours to resolve the dispute within thirty (30) days of receipt of the Notice. iii. The Customer shall pay the undisputed portion of the amount due in the invoice and may withhold the payment of the disputed portion until the time the amount is determined. Upon determination, if PBX Blue proves the disputed portion correct, The Customer shall pay the amount due plus interest, at the rate of 1.5% per month on said amount from the invoice due date. However, if the Customer is proven correct, PBX Blue will then issue a credit note to the Customer. iv. In the absence of resolution of the dispute within sixty (60) days, PBX Blue and The Customer shall mutually agree on and appoint a single arbitrator to resolve the dispute. The decision made by the arbitrator shall be final and binding upon both parties v. The Customer shall not be excused from its obligations to pay PBX Blue for the Service invoiced based on a claim that fraudulent calls comprise, or may comprise, a portion of the invoiced Service. In no case shall fraudulent calls form the basis for disputing an invoice pursuant to this Agreement. e) Delivery of Equipment to The Customer PBX Blue sends Equipment in a satchel or box to the Customer via courier. It is the responsibility of the Customer to check the content of the satchel delivered before The Customer signs the delivery receipt. If the content does not match with The Customer order, The Customer is not to sign the receipt and return the satchel / box to the courier. If the Customer signs the receipt, The Customer acknowledges that The Customer has checked the content and has taken possession of the Equipment. PBX Blue is not responsible for any items missing from the satchel / box after the delivery receipt has been signed for. f) Equipment warranty The warranty period for Equipment is one (1) year from the first despatch date to the Customer by PBX Blue or its authorised partners, regardless how many times subsequent replacement units are sent to the Customer. PBX Blue provides warranty subject to the following conditions: i. The Equipment must be purchased via PBX Blue. ii. The Customer shall bear the costs associated with returning the Equipment to PBX Blue to claim warranty. iii. PBX Blue will return replacement Equipment only after testing has been completed and the returned Equipment is found to be faulty. iv. PBX Blue is not responsible in any way for any expenses incurred by The Customer following the return of the replacement Equipment for use by the Customer. v. During the warranty period, PBX Blue is obligated to replace, repair or credit to The Customer account at PBX Blue’s sole discretion if the Equipment returned is found to be faulty or malfunctioning. This clause is not applicable if the Equipment is found a. to have not been sold or supplied by PBX Blue; or b. to have been interfered, tampered or modified without prior authorisation and approval by PBX Blue or original supplier / manufacturer; or c. to have been damaged or used not in accordance with PBX Blue’s and / or manufacturer’s instructions. g) Service fees refund (VoIP service only) i. PBX Blue will refund call charges if it can be demonstrated the Customer has been incorrectly charged. ii. If the Customer cancels the Service, there is no refund for any portion of the monthly and DID fees. iii. If the Customer upgrades or downgrades the service plan, there is no refund for any portion of the monthly and DID fees. iv. For an existing PBX Blue Customer to change the service plan, the changed service plan shall be treated and charged as a new and separate Service. There shall be no transfer of already paid charges from the old to the new service plan including monthly and DID fees. h) Credit Check PBX Blue may conduct credit check on the Customer based the financial statements and trade references provided by the Customer. PBX Blue relies on the Customer to provide accurate and up-to-date information for PBX Blue and PBX Blue’s credit agency to make proper assessment. i) Security Deposit PBX Blue may request the Customer to provide a security deposit at least equal to the Customer’s estimated monthly liability with PBX Blue. PBX Blue may review the sufficiency of the security deposit from time to time and may increase the amount required by notice in writing to the Customer. The security deposit may be in one of the following forms: i. cash to be held by PBX Blue; or ii. a bank guarantee in a form acceptable to PBX Blue. j) Credit Limit PBX Blue will advise the Customer the credit limit that applies to the operation of the Service. Notwithstanding any other term in the Agreement, if any time the unpaid charges for the Service, whether invoiced or not, exceed the credit limit, PBX Blue will immediately notify the Customer to reduce the unpaid charges to an amount less than the credit limit. In the event that the Customer fails to reduce the unpaid charges to an amount less than the credit limit within three (3) business days, this will constitute a material breach of the contract such that PBX Blue may immediately suspend any or all of the Service without the need for any further notice to the Customer. k) Personal and Credit Information i. The Customer authorises PBX Blue to collect, use and disclose personal information about the Customer for the primary purpose of the supply of the Service to The Customer. If the Customer does not provide all the personal information PBX Blue requests from the Customer, PBX Blue may be unable to supply the Service to you or PBX Blue may be restricted in the way PBX Blue supplies that Service to the Customer. ii. The Customer authorises PBX Blue to collect, use and disclose personal information about the Customer for purposes including the following: a. assessing creditworthiness; b. all purposes associated with provision of the Service to the Customer including billing and account management; c. to provide the Customer with information about products and services which PBX Blue, or any of PBX Blue’s partners or affiliates, may provide to the Customer; d. implementing this Agreement; e. business planning and product development; and f. complying with legal requirements. iii. PBX Blue will handle the Customer’s personal information in accordance with the requirements of relevant laws and industry standards.

14. WARRANTY AND LIABILITY LIMITATIONS

a) Liability i. The Customer will indemnify PBX Blue against all costs, losses, damages, actions, proceedings, claims, liabilities and expenses (including all reasonable legal costs, fees and expenses) incurred or suffered by PBX Blue as a result of: a. any personal injury to, or death of, any person or any loss of, or damage to, any personal property caused by or arising from the Customer’s breach of this Agreement or the Customer’s acts or omissions or those of any person for whom The Customer is responsible; or b. The Customer’s acts or omissions (or those of any person for whom The Customer is responsible) relating to the use, or attempted use, of the Service or otherwise arising in connection with PBX Blue’s supply of (or delay in supply or failure to supply) the Service; and c. a claim by the Customer arising out of or in connection with the supply or cession of supply of the Service ii. The Customer will indemnify PBX Blue against all costs, losses, damages, actions, proceedings, claims, liabilities and expenses (including all reasonable legal costs, fees and PBX Blue shall not be liable for any delay or failure to provide the Service, including 000 dialling, at any time or from time to time, or any interruption or degradation of voice quality that is caused by any of the following: a. act or omission of an underlying carrier, service provider, vendor or other third party; b. Equipment, network or facility failure; c. Equipment, network or facility upgrade or modification; d. force majeure events such as (but not limited to) strikes; fire; war; riot; government actions; e. Equipment, network or facility shortage; f. Equipment or facility relocation; g. service, equipment, network or facility failure caused by the loss of power to The Customer; h. outage of The Customer's ISP or broadband service provider; and i. act or omission of The Customer or any person using the Service or Equipment provided to The Customer; or j. any other cause that is beyond PBX Blue's control, including without limitation a failure of or defect in any Equipment, the failure of an incoming or outgoing communication, the inability of communications (including without limitation 000 dialling) to be connected or completed or degradation of voice quality. iii. Except expressly provided by this Agreement: a. The Customer will bear the risk of loss or damage to any PBX Blue Equipment used or located on the Customer’s premises or whilst in the Customer’s possession or control; b. the PBX Blue Equipment always remains PBX Blue’s property unless it has been sold to the Customer; c. The Customer will ensure that, the Customer has all necessary consents and approvals, including landlord approval where applicable, necessary or desirable for PBX Blue to deliver, install and maintain the PBX Blue Equipment at the access site; d. The Customer will provide a suitable physical environment at the Customer’s premises for the storage and operation of the Equipment including supplying an adequate power supply for the operation of the Equipment; e. The Customer must ensure the PBX Blue Equipment will not be altered, repaired, serviced, moved or disconnected except by service personnel approved by PBX Blue; f. The Customer must take good care of the PBX Blue Equipment while it is in the Customer’s possession or control and must notify PBX Blue immediately if the Customer becomes aware of any damage to or malfunction of the Equipment; g. The Customer will be liable to PBX Blue for all loss of, or damage to, to the PBX Blue Equipment while at the Customer’s premises or whilst in the Customer’s possession or control, apart from fair wear and tear; and h. The Customer will only use the PBX Blue Equipment in accordance with the manufacturer’s specifications or PBX Blue’s written directions. iv. PBX Blue may charge the Customer for any repair, maintenance or replacement of the PBX Blue Equipment due to events other than normal wear and tear, including but not limited to a. Force majeure events; b. failure to use the PBX Blue Equipment in accordance with this Agreement; c. any act of wilful damage or interference by a party other than PBX Blue, PBX Blue’s employees or agents; d. negligent use or misuse of the PBX Blue Equipment by a party other than PBX Blue, PBX Blue’s employees or agents; e. any failure or fluctuation of the electrical power supply to that PBX Blue Equipment, or any external electromagnetic interference or any failure of air-conditioning and humidity control for that Equipment; or f. the performance of maintenance services by a party other than PBX Blue or service personnel approved by PBX Blue. v. If PBX Blue uses the services of a supplier in providing the Service, The Customer agrees to comply with any reasonable direction given by PBX Blue necessary to avoid causing any breach by PBX Blue of the relevant other suppliers’ terms and conditions of supply applicable to that Service. vi. Except as expressly provided to the contrary in this Agreement and to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Service supplied under this Agreement or PBX Blue’s obligations under this Agreement are excluded. vii. Where any act of parliament implies in this Agreement any terms, and that act of parliament voids or prohibits provisions under a contract which exclude or modify the operation of such term, the term is deemed to be included in this Agreement. viii. To the extent permitted by law, PBX Blue’s liability for breach of an express term or implied term of this Agreement in contract, negligence or any other tort under any statue or otherwise, is limited to one of the following remedies at PBX Blue’s discretion: a. if the breach relates to Service, the re-supply of the Service or the payment of the cost of resupplying the Service; or b. if the breach relates to Equipment, the replacement of the Equipment or the supply of equivalent Equipment, the payment of the cost of such replacement, the repair of such Equipment or the cost of such repair. ix. To the extent permitted by law, PBX Blue excludes all liability to the Customer in connection with this Agreement for consequential loss, indirect loss, loss of profits of any kind, loss or corruption of data, interruption to business, loss of revenue and economic loss of any kind, whether in contract, negligence or any tort under any statue or otherwise. x. To the extent permitted by law, PBX Blue’s aggregate liability to The Customer in connection with this Agreement in respect of all claims, whether in contract, negligence or any other tort, under any statute or otherwise, will not exceed the amount paid to PBX Blue by the Customer during the minimum term. xi. PBX Blue retains all rights in the confidential information. The Customer will: a. keep all confidential information confidential; b. not disclose or allow any confidential information or the terms of this Agreement or application of Service including pricing to be disclosed to any third party without PBX Blue’s prior written consent; and c. return all confidential information including all copies to PBX Blue within 7 days of request by PBX Blue. d. The Customer will not use confidential information or the terms of this Agreement, which The Customer acquires from PBX Blue for any purpose other than use of the Service or as otherwise expressly permitted by PBX Blue and, in particular, will not use confidential information in any way which may cause PBX Blue loss, whether by way of damage to PBX Blue’s reputation, financial loss or otherwise. xii. The Customer agrees to defend, indemnify and hold harmless PBX Blue, its officers, directors, employees and agents who furnish equipment and services to The Customer in connection with the supply of Service and Equipment, from any and all claims, losses, damages, fines, penalties, costs and expenses, (including, without limitation reasonable attorney fees) by, or on behalf of The Customer or any third party, or user of The Customer’s Service, relating to the Agreement, Equipment and Service. This paragraph shall survive the termination of the Agreement. xiii. In no circumstances shall PBX Blue be held liable for any consequential loss in respect to any late delivery and failure of any of the components of this Agreement including the hardware, software and services. b) Disclaimer of Damages In no event shall PBX Blue, its officers, directors, employees, affiliates or agents or any other service provider who furnishes services to the Customer in connection with this Agreement or the Service be liable for any direct, incidental, indirect, special, punitive, exemplary or consequential damages, or for any other damages, including but not limited to loss of data, loss of revenue or profits, or damages arising out of or in connection with the use or inability to use the Service, including inability to be able to dial 000 or to access emergency service personnel through the Service. The limitations set forth herein apply to claims founded in breach of contract, breach of warranty, product liability, tort and any and all other theories of liability and apply whether or not PBX Blue was informed of the likelihood of any particular type of damages. c) No warranties on Services PBX Blue makes no warranties, express or implied, including but not limited to, any implied warranties of merchantability, fitness of the Service for a particular purpose, title or non-infringement or any warranty arising by usage of trade, course of dealing or course of performance or any warranty that the Service will meet the Customer’s requirements, without limiting the foregoing, PBX Blue does not warrant that the Service will be without failure, delay, interruption, error, degradation of voice quality or loss of content, data or information. Neither PBX Blue nor its officers, directors, employees, affiliates or agents or any other service provider or vendor who furnishes services or products to The Customer in connection with this Agreement or the Service will be liable for unauthorized access to PBX Blue’s or the Customer’s transmission facilities or premises equipment or for unauthorized access to, or alteration, theft or destruction of, the Customer’s data files, programs, procedures or information through accident, fraudulent means or devices or any other method, regardless of whether such damage occurs as a result of PBX Blue’s or its services provider’s or vendors’ negligence, statements and descriptions concerning the Service or Equipment, if any, by PBX Blue or PBX Blue’s agents or installers are informational and are not given as a warranty of any kind. d) No third-party beneficiaries No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third-party beneficiary rights. e) Content i. The Customer is liable for any and all liability that may arise out of the content transmitted by or to the Customer or the Customers using the Service. The Customer shall assure that the Customer or the Customer's use of the Service and content will at all times comply with all applicable laws, regulations and written and electronic instructions for use. PBX Blue reserves the right to terminate or suspend affected Service, and / or remove the Customer or the Customers' content from the Service, if PBX Blue determines that such use or content does not conform with the requirements set forth in this Agreement or interferes with PBX Blue's ability to provide Service to the Customer or others or receives notice from anyone that the Customer or the Customers' use or content may violate any laws or regulations. ii. PBX Blue's actions or inaction under this section shall not constitute review or approval of the Customer or the Customers' use or content. The Customer will indemnify and hold PBX Blue against any and all liability arising from the content transmitted by or to The Customer or to the Customers using the Service. A "Customer" means any person, whether authorized or unauthorized, using the Service and / or Equipment provided to the Customer. f) Force majeure i. PBX Blue is not liable for any failure to perform, or for any delay in performing any of PBX Blue’s obligations under this Agreement where the failure or delay is occasioned by: a. strike or other industrial action; b. any act or omission by the Customer or any third party, including failures or delays by other suppliers; c. legislative or governmental prohibitions, restrictions or delays in the granting of approvals, consents, permits, licences or authorities; d. fire, flood, war or cable cut; or e. any other event beyond PBX Blue’s reasonable control. g) General i. This Agreement is governed by and construed in accordance with the laws of New South Wales. The parties submit to the jurisdiction of the courts of New South Wales and any court hearing appeals from those courts. ii. This Agreement contains the whole understanding of the parties to the exclusion of any prior agreement, representation or understanding relating to the Service. iii. The Customer may not assign, mortgage, charge, sublicense or otherwise deal with the Customer’s rights, or subcontract or otherwise delegate any of the Customer’s obligations under this Agreement without PBX Blue’s prior written consent. PBX Blue may assign or otherwise delegate all or any of PBX Blue’s rights and obligations under this Agreement to a related body corporate or other person. iv. A notice, approval or consent, to be issued under this Agreement must be in writing and in the absence of evidence to the contrary will be taken to be received: a. if left at the address of the addressee, at the time it was left; b. if sent by ordinary post, on the third day after posting; c. if sent by express post, on the next day; and d. if sent by facsimile, at the time recorded on a transmission report from the machine from which the facsimile was sent. v. Any waiver of a breach of any obligation by relates only to the particular breach and not to any other or subsequent breach, and will not prejudice PBX Blue’s rights to take subsequent action. A waiver under this clause will only be valid if it is in writing and signed by the party against whom such waiver is claimed. vi. The failure of PBX Blue to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. The Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. vii. If a provision of this Agreement is void or voidable or unenforceable or the invalid part severed, the remainder of this Agreement will not be affected.

15. TERMINATION

a) After expiration of the contracted term, either party may terminate the supply Agreement by giving 30 days written notice to the other, provided that such notice does not take effect on any day other than the last day of the billing period. b) The Customer may terminate the Service at any time prior to expiry of the contracted term by: i. giving PBX Blue 30 days written notice of the Customer’s intention to terminate, provided that such notice does not take effect on any day other than the last day of a calendar month; ii. paying PBX Blue all outstanding fees and charges incurred by the Customer until PBX Blue receives a written notice from the Customer; and iii. paying PBX Blue an amount calculated by multiplying the minimum monthly fee, payable by the Customer under this Agreement, by the remaining months of the Contracted Term plus any fixed costs and the cost of the Equipment, if applicable. The remaining months are calculated from the date the Agreement is signed by the Customer. c) PBX Blue will not refund any Equipment, any costs and payments if the Customer terminates the Agreement. d) PBX Blue may without liability terminate the supply of the Service or part of the Service to the Customer with immediate effect if: i. the Customer defaults in the payment of any charges by the due date and fails to remedy such default within 7 days of written notice from PBX Blue; ii. The Customer defaults in the performance or observance of any obligation under this Agreement and, in the case of a breach capable of remedy, The Customer fails to correct that breach within 14 days of written notice from PBX Blue; iii. PBX Blue reasonably suspects fraud or misuse of the Service on The Customer’s part. iv. Either party may at any time without liability terminate this Agreement, with immediate effect from the date of Service of a notice (or with effect from such later date as the affected party may nominate in such notice), if an insolvency event occurs with respect to the other party. e) On termination for any reason all charges and other amounts owing by the Customer to PBX Blue shall become immediately due and payable. f) Although PBX Blue will endeavour to give the Customer as much notice as reasonably practicable, PBX Blue may, without liability, suspend the Service immediately (including without notice): i. if PBX Blue is required to comply with an order, instruction or request of a government agency, emergency services organisation or other Australian government authorities; ii. if PBX Blue is required to undertake emergency repair, maintenance or service of any part of the PBX Blue service facilities; iii. if it is reasonably required to reduce or prevent fraud or interference within the PBX Blue service facilities; or iv. as an alternative to the exercise of PBX Blue’s rights of termination under this Agreement. g) On termination, the Customer’s right to use the Services ceases immediately. The Customer agrees to not hinder PBX Blue in doing all things necessary to recover and remove PBX Blue Equipment from The Customer premises. h) Termination will not affect any rights or liabilities that have already accrued to either party nor will it affect any provision which is expressly or by implication interned to operate after termination.

16. NON-DISCLOSURE AND CONFIDENTIALITY

PBX Blue and the Customer shall only use and hold confidential information using the same degree of care as it normally exercises to protect its own proprietary information, but not less than reasonable care, taking into account the nature of the information, and shall disclose the information only to its employees who have a need to know, shall cause its employees to comply with the provisions of this Agreement, and shall prevent disclosure of information to third parties except as compelled by law. Confidential information includes but is not limited to information relating to PBX Blue Service and the Customer’s company information which is not disclosed in brochures or other promotional materials available in the public domain.

17. SERVERABILITY

If any part of this Agreement is legally declared invalid or unenforceable, all other parts of this Agreement are still valid and enforceable. Such invalidity or non-enforceability will not invalidate or render unenforceable any other portion of this Agreement.

18. PRIVACY

PBX Blue Service utilizes, in whole or in part, the public Internet and third-party networks to transmit voice and other communications. PBX Blue is not liable for any lack of privacy which may be experienced with regard to the Service.

19. DISPUTES

a) The parties will use their reasonable endeavours acting in good faith to resolve any dispute arising under this Agreement as soon as reasonably possible. Any dispute except for a dispute over non-payment of properly invoiced charges that cannot be resolved by the parties within a reasonable time will be referred to the heads of each party who will resolve the issue through good faith negotiation. If the parties are still unable to resolve the dispute after a period of five (5) business days, if the parties agree at an earlier stage, the dispute shall be referred to a mediator. b) The mediators will have appropriate qualifications and practical industry experience to resolve the particular dispute and such appointment shall be agreed by the parties within three (3) business days of the decision to refer the matter to a mediator. In the event of a failure to agree on a mediator, a mediator will be appointed by the president of the Law Society of NSW on the application of either party. c) The parties will provide the mediator within seven (7) business days with all the information relating to the particular dispute under such confidentiality obligations as reasonable under all the circumstances. d) The mediator shall be instructed by the parties to use all reasonable endeavours to resolve the dispute within ten (10) business days following receipt of the information or if this is not possible, so soon thereafter as may be reasonably practical and the parties shall co-operate fully with the mediator to achieve this objective. e) The fees and expenses of the mediator will be borne equally by the parties.

20. CHANGES TO THIS AGREEMENT

PBX Blue may change the terms and conditions of this Agreement from time to time. Notices will be considered given and effective on the date posted on to the PBX Blue web site. Such changes will become binding on the Customer, on the date posted to the PBX Blue website. This Agreement as posted supersedes all previously agreed to electronic and written terms of Service and provision of Equipment. If this occurs, the Customer will receive an email advising to refer to the full list of changes on the PBX Blue website; the Customer is not required to monitor the website for occasional changes.