1.1. This is Practical Cybernetics Standard Form of Agreement under Section 479 of the Telecommunication Act 1997, called ‘Practical Cybernetics Customer Terms and Conditions’.
1.2. A reference to ‘Practical Cybernetics’ or ‘we’ or ‘us’ or ‘our’ means Practical Cybernetics (ABN 16 159 861 033).
2. GENERAL TERMS
2.1. These Terms and Conditions (“Terms”):
2.1.1. apply to the sale and supply of Services to You by Practical Cybernetics during the Term except where otherwise set out in writing by Practical Cybernetics;
2.1.2. otherwise prevail over any other terms whether contained or implied in or from any communications from You or from any conduct of or representations made by You or Practical Cybernetics (except any separate written terms prescribed by
Practical Cybernetics in relation to specific Services, which shall prevail over these Terms to the extent of any inconsistency);
2.1.3. shall be deemed incorporated in any Account or Service Application placed by You;
2.1.4. shall not be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010, the Privacy Act 1988 or the Telecommunications Act 1997) and which by law cannot be excluded, restricted or modified.
2.2. The entire Agreement between Practical Cybernetics and You comprises these Terms as well as any terms and conditions relating to specific Services which Practical Cybernetics may prescribe from time to time. The Agreement also includes Practical Cybernetics current price list which can be found on the website astoundingapps.com.au or provided to You at Your request.
2.3. Our Agreement with You also includes Your application and/or Service order form submitted to Practical Cybernetics via telephone, online or via the facsimile and/or in person, which You complete and provide to Practical Cybernetics. Practical Cybernetics may accept and rely on facsimile copy of the application or order form as if it was the original. Practical Cybernetics may accept an online form submission as if it was an original. You will be bound to all terms and conditions including the contract term and obligations as if it was an original in paper form.
2.4. For the purposes of these terms, the following terms are defined below. Words not defined in these Terms have the same meaning as in the Telecommunications Act 1997:
2.4.1. Carriers means third party telecommunications service providers.
2.4.2. Charges means any amounts payable for Services supplied by Practical Cybernetics as invoiced as well as any fees or charges payable on set‐up or otherwise under these General Terms and Conditions.
2.4.3. Electronically means by electronic communication to your nominated email address or by making particulars of changes available on our website.
2.4.4. Services means 13, 1300 or 1800 inbound telephony services; live telephone answering and reception services; fax to email and email to fax services; purchase of smartnumbers; and any other Services that may be listed on the Account and Service Application.
2.4.5. Service Providers means third party service providers.
2.4.4. Spam is the result of the abuse of electronic messaging systems to indiscriminately send unsolicited bulk messages.
2.4.5. Term means the period set out in Account and Service Application.
2.4.6. You and Your refers to the Customer, as named in the Account and Service Application, or any other customer to whom the use and responsibility for the Services have been assigned by You.
3.1. As soon as practicable after the acceptance of your Account Application, Practical Cybernetics will commence providing the Services.
3.2. Services will be supplied to You through third party Carriers or Networks and Service Providers that Practical Cybernetics nominates from time to time. In providing the Services:
3.2.1. Practical Cybernetics may retain the services of such third party Carriers or Service Providers as it selects at its discretion;
3.2.2. Practical Cybernetics may change Carriers without notice to You;
3.2.3. and You irrevocably authorise Practical Cybernetics to liaise with the relevant Carriers and/or Service Providers on your behalf in order for Practical Cybernetics to change or retain third party Carriers and/or Service Providers.
3.3. Practical Cybernetics provides no warranty that it will be able to supply Services at all times and Practical Cybernetics is not liable for any failure to provide all or part of any of the Services. However, to the extent and to the standard that Carriers and/or Service Providers provide Services to Practical Cybernetics, those Services will be provided by Practical Cybernetics to You. If your connection or service provision is disrupted, Practical Cybernetics will use its best endeavours to reinstate the Services as soon as possible and Practical Cybernetics will not be liable for any loss or damage You incur as a result of any delay in reinstating the Services.
3.4. If Your account is transferred or assigned to another supplier and the other supplier takes over full billing of those services, Practical Cybernetics obligations under these Terms will cease.
3.5. If You transfer any Services (“Transferred Services”) from a Carrier, a telecommunications service provider or any other Service Provider at the time of signing this agreement (“Current Supplier”) to Practical Cybernetics, You authorise Practical Cybernetics to act as your attorney to sign on your behalf and in your name any forms required by the Current Supplier to transfer the Transferred Services as Practical Cybernetics directs. In this respect, You agree to immediately pay directly to the Current Supplier any amounts owing for the Transferred
Services up to the date of the transfer and You acknowledge that Practical Cybernetics has no liability for payment of such amounts.
3.4. During the Term, You agree to:
3.4.1. comply with all statutes, regulations, by‐laws or licence conditions of any government body; and
3.4.2. not breach the rights of any third party or otherwise cause Practical Cybernetics or a Carrier or a Service Provider any loss, liability or expense.
4. CHARGES AND PAYMENT
4.1. All prices and charges are quoted excluding GST.
4.2. Practical Cybernetics will periodically render a Tax Invoice to you for amounts payable by you under these Terms.
4.3. You acknowledge and agree that:
4.3.1. You will be liable to Practical Cybernetics for full payment of such Tax Invoices irrespective of whether the Services are used by You directly or by another party under your account;
4.3.2. You will be liable to Practical Cybernetics for full payment of such Tax Invoices irrespective of whether the Services have been authorised;
4.3.3. all charges set out by Practical Cybernetics from time to time are exclusive of taxes and levies which are also payable by You when required to do so by Practical Cybernetics;
4.3.4. You will pay each invoiced amount by the due date specified in the relevant Tax Invoice;
4.3.5. You authorise Practical Cybernetics to vary the rates of service charged to You at any time following the expiration of any minimum term set out in the Service Application by giving to You at least thirty (30) days written notice;
4.4. You authorise Practical Cybernetics or its authorised representative to deduct payment for each Tax Invoice from Your bank account or credit card as set out in the application form.
4.5. You acknowledge and agree that:
4.5.1. Practical Cybernetics will process the direct debit seven (7) days after the issue date of the Tax Invoice.
4.5.2. The standard 10 business days before applying a direct debit from the time of the
Tax Invoice assumed to have been received does not apply any transactions with Practical Cybernetics.
4.4. In the event that a bank account or credit card debit in accordance with Clause 3.3 is declined:
4.4.1. Practical Cybernetics will advise You and You must make payment of the outstanding monies by clear funds by such alternative method as required by Practical Cybernetics within two (2) days of being so advised; and
4.4.2. You must pay a Dishonour Payment Fee of $5.
4.5. If your nominated bank account or credit card is closed or cancelled, You must notify Practical Cybernetics within two (2) business days and You must provide Practical Cybernetics with the details for an alternative bank account or credit card. If You fail to do so, or if You do not have an alternative bank account or credit card from which Practical Cybernetics can deduct payment of Tax Invoices, then Practical Cybernetics may cancel the Agreement immediately.
4.6. Practical Cybernetics may suspend part or all of its ongoing supply of the Services to You if any payments remain outstanding for more than fourteen (14) days and will cancel such supply if any payments remain outstanding for more than thirty (30) days, in which event You will forfeit any amounts already paid under these Terms. In order to reconnect the services You must pay any outstanding amounts plus a reconnection fee of $15 per service.
4.7. Should any Tax Invoice or part thereof not be paid on time, then You must pay a Late Payment Administration Fee of $15 and the amount owing shall become a debt immediately due and payable and shall attract interest at a rate being 2% above the
penalty interest rate fixed from time to time under the Penalty Interest Rates Act 1983 (Vic), which interest shall accrue from the date of default until the date of payment of the whole of the amount outstanding. Further, Practical Cybernetics may adjust its charges to You for the future provision of the Services.
4.8. To avoid doubt, and in accordance with Section 5.1.5 of the Telecommunications Consumer Protections Code C628:2007 Practical Cybernetics may immediately suspend or restrict your Services without further notice if:
4.8.1. You fail to pay a current bill and have a history of late payments, dishonoured payments or failures to pay;
4.8.2. Your direct debit is dishonoured three or more times.
4.9. If any amounts are outstanding and owing to Practical Cybernetics, You indemnify Practical Cybernetics against any costs incurred by Practical Cybernetics in the retrieval of overdue monies. This includes but is not limited to collection agency costs, solicitor’s fees on an indemnity basis and court costs.
4.10. If You dispute in good faith an amount of a Tax Invoice, You must notify Practical Cybernetics in writing within fourteen (14) days setting out reasons for the dispute and the amount in dispute. Notwithstanding any dispute as to any amount of any charge, You must pay the whole amount of each account by the date specified in the Tax Invoice without deduction.
4.13. If You direct Practical Cybernetics, or authorise another carrier, to transfer any of the Services to another supplier, you must pay in full, and prior to Practical Cybernetics releasing or transferring any of your telephone numbers:
4.13.1. all amounts invoiced to you by Practical Cybernetics for the period prior to and including the date Practical Cybernetics ceases to provide the Services;
4.13.2. a port‐away fee for each of the Inbound Number Services we provided to you; and
4.13.3. all other proper charges that Practical Cybernetics becomes aware of after the date of transfer that relate to the Services.
4.14. If You are a corporation, Your Directors jointly and severally personally guarantee the payment of all monies owing by You to Practical Cybernetics. This guarantee shall be a continuing guarantee to Practical Cybernetics for all or any debts that shall be due by You from time to time to Practical Cybernetics in respect of the goods and Services supplied to You by Practical Cybernetics. Practical Cybernetics may at any time at its absolute discretion and without giving any notice whatsoever, refuse further credit or supplies of goods and the Services to You. If at any time administrators/receivers or liquidators are appointed to You, You agree to relinquish any rights (preferences) to Practical Cybernetics, for an amount equal to Your outstanding debtor account with Practical Cybernetics. If at any time Practical Cybernetics transfers or sells the outstanding debtor account balance to a related entity or third party, You and Your Directors remain bound by this guarantee.
5. CREDIT APPLICATION
5.1. In order for Practical Cybernetics to assess your application for credit, you must provide Practical Cybernetics with all information it requires including your credit rating, credit worthiness, credit history or credit capacity.
5.2. Pursuant to the Privacy Act 1988 (Cth) You give your consent for Practical Cybernetics to:
5.2.1. seek consumer credit information if Practical Cybernetics considers it relevant to assessing your application for commercial credit and You agree to Practical Cybernetics obtaining from a credit reporting agency a credit report containing personal credit information about you in relation to commercial credit provided by Practical Cybernetics;
5.2.2. exchange information with other credit providers and You agree to Practical Cybernetics obtaining personal information about you from other credit providers, whose names you may have provided for Practical Cybernetics or that may be named in a credit report, for the purpose of assessing your application for commercial credit made to Practical Cybernetics;
5.2.3. make independent enquiries of third parties concerning your financial standing and for this purpose You authorise and permit such third parties to supply such information regardless of any confidentiality or privilege which applies to the information sought;
5.2.4. give a credit provider a consumer credit report to collect overdue payments on commercial credit and You agree that Practical Cybernetics may obtain a consumer credit report about you from a credit reporting agency for the purpose of collecting overdue payments relating to commercial credit owed by you; and
5.2.5. provide any information that we obtain about You to the relevant Carrier.
6. YOUR OTHER OBLIGATIONS AND ACKNOWLEDGMENTS
6.1. In addition to any other obligations set out in these Terms, You must provide
Practical Cybernetics with all necessary information as requested in its discretion from time to time including:
6.1.1. current personal, email, telephone and postal details for You and, if You are a company, your key personnel;
6.1.2. any changes to the bank account or credit card particulars provided by You; and
6.1.3. such written authorities as Practical Cybernetics may request in order to effect the debit payments set out in these Terms and You agree to indemnify Practical Cybernetics against any loss, claims, actions of demands suffered by Practical Cybernetics as a consequence of You failing to do so.
6.2. You must keep Practical Cybernetics indemnified against any loss, claims or damage suffered by Practical Cybernetics or its agents and which is caused by any act or omission to act by You, your agents or personnel.
6.3. You consent to:
6.3.1. Practical Cybernetics conducting a physical audit of the Services and any equipment supplied in respect of the Services should Practical Cybernetics consider it necessary in its sole discretion;
6.3.2. Practical Cybernetics exchanging with Carriers information about You and the Services provided to You in Practical Cybernetics possession or control including, but not limited to, Your name, billing address, street address, relevant telephone numbers, any information obtained by Practical Cybernetics for the purpose of Your application, these Terms and the Agreement;
6.3.3. The Carrier exchanging with us any information in the Carrier’s possession or under its control in relation to the Services including, without limitation, all Your records and, in particular, exchange line details, account information, call charge records and call event records;
6.3.4. The use by Practical Cybernetics and the Carrier of the information referred to in this subclause 4.b.
6.4. Without limiting any other terms of these Terms, You acknowledge and agree that:
6.4.1. You have read and understood these Terms;
6.4.2. all intellectual property in the Services and any material produced or provided by
Practical Cybernetics will remain the property of Practical Cybernetics during and after the Term;
6.4.3. You are not entitled to a refund of any monies paid to Practical Cybernetics for change of mind after the date these Terms are accepted (except if required by law);
6.4.4. Practical Cybernetics may email You with details of other products or services from time to time unless You provide a written request not to receive such emails;
6.4.5. Practical Cybernetics may retain and use Your personal information, in which respect Practical Cybernetics agrees to store such information securely and not to disclose such information to third parties.
7. TERM AND CANCELLATION
7.1. The Term of the agreement is dependent upon the contract term applicable to the individual service as detailed in the service application form.
7.2. At the end of the Term, the Agreement will automatically be renewed for a further Term of one (1) months, unless, not less than one month prior to the expiry date of any such period, either party gives the other a notice of non‐renewal of the Agreement, in which event the Agreement shall expire at the end of the Term.
7.3. Practical Cybernetics may immediately terminate this agreement by written notice at any time if, without Practical Cybernetics prior written consent:
7.3.1. You breach any of these Terms or any other terms of the Agreement as a whole and such failure has not been remedied within fourteen (14) days after receiving notice in writing to remedy such default;
7.3.2. If You are a corporation and are wound up or have a liquidator appointed;
7.3.3. If You commit any act of bankruptcy or are made bankrupt or enter into a scheme of composition or the like with any creditors, or if You enter into any scheme of arrangement or composition with your creditors or have a receiver or manager appointed;
7.3.4. If any of Your assets are attached as a result of any litigation or enforcement proceedings;
7.3.5. If You are convicted of an indictable criminal offence;
7.3.4. If You charge or attempt to charge or assign any of Your assets and undertaking without the prior consent of Practical Cybernetics (which consent shall not be unreasonably withheld);
7.3.5. If, being an individual, You die or become of unsound mind or infirm;
7.3.6. If there is a change in the majority shareholding or unit holding by You without the prior approval in writing of Practical Cybernetics (which approval shall not be unreasonably withheld);
7.3.7. If You assign or otherwise deal with your rights under these Terms;
7.3.8. If You cease to carry on business;
7.3.9. If there is a material change in Your direct or indirect ownership or control.
7.4. Practical Cybernetics may also immediately terminate the Agreement at any time by written notice if, for reasons outside Practical Cybernetics control, the Carriers and/or Service Providers cease to provide necessary services to Practical Cybernetics.
7.5. If Practical Cybernetics terminates the Agreement in accordance with this clause and a Carrier or Service Provider arranges to supply You services other than through Practical Cybernetics, You acknowledge that:
7.5.1. the Carrier or Service Provider may not be able to make those arrangements immediately; and
7.5.2. once the Carrier or Service Provider has made arrangements, the services acquired by You from the Carrier or Service Provider will be acquired on the Carrier’s or
Service Provider’s then current tariffs and terms and conditions and the Carrier or
Service Provider will bill you accordingly.
8.1. The only conditions and warranties which are binding on Practical Cybernetics in respect of the state, quality or condition of the goods or services provided by Practical Cybernetics are those imposed and required to be binding by statute (including the Competition and Consumer Act 2010) and which obligations cannot otherwise be excluded by the provisions of these terms.
8.2. If goods are provided by Practical Cybernetics and those goods are not manufactured by Practical Cybernetics then You accept the guarantee or warranty of the manufacturer of those goods that is the only guarantee given to You in respect of the goods.
8.3. Upon receiving a request from You, Practical Cybernetics agrees to assign to You the benefit of any warranty or entitlement to the goods that the manufacturer has granted to Practical Cybernetics under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
8.4. Except as expressly provided herein, Practical Cybernetics shall not be liable to You for any liability, (including liability in negligence) loss or damage of whatsoever nature, consequential or otherwise, howsoever suffered or incurred by You, caused by or resulting directly or indirectly from the goods or services provided by Practical Cybernetics whether that loss or damage arises as a result of the provision or the failure to provide the Services.
8.5. Practical Cybernetics’ liability to You for any breach of any provisions of these Terms, implied or otherwise (other than an implied warranty of title) is limited, at Practical Cybernetics’ option, to refunding the price of the goods or Services in respect of which the breach occurred, or to providing, replacing or repairing those goods or providing those Services again.
8.4. You acknowledge that Practical Cybernetics may rely on third parties in order to provide the Services and Practical Cybernetics is not liable to you for any act or omission to act by such third parties, nor is Practical Cybernetics liable to You for any delay in the connection or failure in the operation of the Services. You acknowledge that any liability of any Carrier to You in relation to the Services is governed by the terms and conditions on which that Carrier from time to time supplies that service to its own retail customers.
9. VARIATIONS TO TERMS
9.1. No manager, employee, servant, agent or representative of Practical Cybernetics (other than a Director and then only in writing) has any authority to vary these Terms and without limiting the generality of the foregoing no warranty, representation, promise, agreement, term or condition whether express or implied made by any such person will be deemed to be included in or form part of these Terms or operate in any way collateral to these Terms other than those warranties, representations, promises, agreements, terms or conditions which expressly appear in these Terms or which are implied by law and not excluded by these Terms.
9.2. If You are not a Consumer as defined by the Competition and Consumer Act 2010, Practical Cybernetics may change these Terms at any time in its discretion or by written agreement between You and Practical Cybernetics. Where Practical Cybernetics changes these Terms without your agreement:
9.2.1. if the change would cause detriment to you Practical Cybernetics will publish an advertisement advising of the change or use its best endeavours to notify you directly in writing (either in hard copy or electronically);
9.2.2. if the change would not cause detriment to you Practical Cybernetics may make the change without advertising or notifying you directly.
9.3. You must ensure that you access your designated email account to receive notice of changes and you must access the Practical Cybernetics website at www.Practical Cybernetics.com.au regularly. Your continued use of the Services after changes to these Terms will constitute acceptance of those changes.
10.1. You will not be entitled to withhold or set off payment of any amount due to Practical Cybernetics under these Terms whether in respect to any claim by You deriving from faulty or defective goods, materials or services or for any other reason which is contested or liability for which is not admitted by Practical Cybernetics.
10.2. These Terms shall include all terms implied by operation of law.
10.3. Your rights under these Terms are personal. You must not:
10.3.1. assign or attempt to assign any right or obligation under these Terms; or
10.3.2. resell, re‐brand, restructure, license or otherwise deal with any part of the Services without the prior written consent of Practical Cybernetics in its sole and absolute discretion. Practical Cybernetics may assign all or any of its rights and obligations under these Terms at any time by notifying You in writing.
10.4. Any persons signing these Terms on your behalf warrant that they have full power and authority to bind You in respect of these Terms.
10.5. Any delay in or failure by Practical Cybernetics to insist upon strict performance of any term, warranty or condition of these Terms will not be deemed a waiver thereof or of any rights Practical Cybernetics may have and no express waiver will be deemed a waiver of any subsequent breach of any term, warranty or condition.
10.4. If any provision of this Agreement is determined by any statute or any court having jurisdiction in relation thereto to be illegal, invalid, void, voidable or unenforceable the legality validity or enforceability of the remainder of these Terms will not be affected and the illegal, invalid, void, voidable or unenforceable provision will be deemed deleted to the same extent and effect as if never incorporated in these Terms but the remainder of these Terms will continue in full force and effect.
10.5. A provision of these Terms which can, and is intended to, operate after termination remains effective.
10.6. These Terms are strictly confidential and You must not reproduce them or disclose them to any third party without the prior written approval of Practical Cybernetics.
10.7. These Terms will survive any accepted repudiation or other termination of the contract to supply goods or services existing between Practical Cybernetics and You.
10.8. You agree to execute all such further documentation and to do all such things as may be reasonably necessary or desirable to give full effect to the provisions of these Terms.
10.9. Any dispute concerning these Terms or their interpretation shall be referred for mediation to a mediator as may be agreed by the parties or failing agreement then by a suitably qualified and experienced mediator appointed by the president (or his/her delegate) of the Queensland Law Society (or such like or succeeding institution). This provision shall not prevent a party from applying to a competent court for urgent injunctive or other relief.
10.10.These Terms will be governed and interpreted according to the laws of Queensland and the parties agree to submit to the jurisdiction of the courts of Queensland.