Mi Cloud Product Terms & Conditions
This agreement is willingly entered into between Fast Track Communications Pty Limited (FTC) and the client as the parties specified in this agreement. The provisions of services applicable to this contract are as listed in The Quotation.
The items listed in the Quotation are sold by FTC subject to these terms and conditions. No variation of these terms and conditions is permitted unless expressly accepted by a Director of FTC in writing.
FTC shall sell and the Client shall purchase the items listed in the Quotation, The items in The Quotation may be referred to as goods and services or the items in the Quotation.
No contract shall come into existence until the earliest of:
* FTC quotation being accepted by the Client
* The Client’s Order being accepted by the earliest of:
a. FTC’s written or oral acceptance;
b. shipment of product or delivery of item or service as listed in the Quotation (where applicable)
c. the raising by FTC of an invoice in respect of the items in the Quotation
No Order shall be binding on FTC until accepted by FTC.
1.3. Credit Worthiness
All sales will be subject to satisfactory credit approval, either in respect of COD, credit card or credit application. In placing an order with FTC, the Client grants approval to FTC to seek a credit report from credit reporting agencies to permit the granting of credit under the Privacy Act or similar legislation.
1.4. Fast Track Privacy Statement
FTC uses personal information collected from the client to act as the client’s agent when required by the client and to perform their obligations to the client.
FTC may also use such information collected to promote the services of FTC and or seek potential clients.
FTC may disclose the information to other parties on the internet or to potential clients or to clients of FTC as well as trades people, corporations, government and statutory bodies and to third parties as required by law.
FTC will only disclose information in this way to other parties as required to perform their duties under our agreements or to achieve the purposes as allowed under the Privacy Act 1988. If the client would like to access this information they can do so by contacting FTC at the address and telephone numbers below.
The client can also correct this information if it is inaccurate, incomplete or out of date.
Fast Track Communications
Unit 37, 6-8 Herbert St, St Leonards, NSW 2065
Ph 1300 663 200
Fax 1300 995 885
Unless terminated in accordance with Section 5 below, this Agreement is effective as of the date it is signed by both FTC and the client (“Effective Date”) and will remain in effect for the contract term (“Initial Term”) A minimum of three (3) years unless a four (4) or five (5) year contract has been agreed. Thereafter the Agreement shall renew on an annual basis, for additional one (1) year periods unless terminated as provided below or until FTC no longer provides Services under this Agreement (each a “Renewal Term”, together with the Initial Term, the “Term”). The client acknowledges that individual Services may have a minimum Order Term as specified on the applicable Service Order.
1.6. Risk and Passing of Property
1.6.1. Risk in equipment supplied as per the Quotation shall pass to the customer when delivered to it or its agent.
1.6.2. The delivery records of FTC will be prima facie evidence of delivery of the Goods.
1.6.3. Until title to the items specified in the Quotation passes: –
The Client will hold the items specified in The Quotation as fiduciary agent and bailee for FTC.
The items specified in The Quotation shall be separate and distinct from all other property of the Client and of Third Parties and in good and substantial repair and condition. It will be stored in such a way as to be clearly identifiable as belonging to FTC.
The right of the Client to use will automatically cease if the Client has a summons presented for its winding up or passes a resolution for voluntary winding up otherwise for the purpose or bona fide amalgamation or reconstruction or compounds with its creditors or has a receiver appointed of all or any part of its assets or (being an individual) becomes bankrupt or insolvent or enters into any arrangement with its creditors or takes or suffers any similar action in consequence of debt or carries out or undergoes any analogous or similar act or proceedings under the laws of any State or Country.
Upon determination in any way of the Client’s right to use, the Client shall place any of the items listed in The Quotation in its possession or under its control at the disposal of FTC and FTC shall be entitled to enter upon any premises of the Client for the purpose of removing the items.
1.7. Warranty and Return of the Quotation items
FTC warrants that items listed in The Quotation are free from defects in materials and workmanship.
1.7.1 Any items listed in The Quotation returned under this clause, must be as new and not modified or damaged. All warranty cards, manuals, and packaging must be intact. The Client must inform FTC in advance that the Quotation items are being returned. The Quotation items must be returned properly packaged prepaid and insured. Freight collect returns will not be accepted and shall be returned to the sender.
1.7.2 Labour will be warranted for a period of three months unless the client purchases a maintenance agreement. These times will run from completion of installation. Warranties will be voided by non-payment of the invoice rendered by FTC.
1.7.3 Software Warranty – During the Initial Term (“Software Warranty Period”), the Software media will be free from defects in material and workmanship under normal use and the Software will perform substantially in compliance with the manufacturer’s specifications. To the extent that any deficiency in the material or workmanship prevents the Software from operating substantially in accordance with the manufacturer’s specifications, FTC will use commercially reasonable efforts to correct the problem within a reasonable period of time. If the problem cannot be corrected, FTC will in its sole discretion either replace the Software or install a new release when made generally available or return the Software to a prior release
1.7.4. Exceptions to the Warranty. The Software warranty will become void if one of the following occurs: (i) the Software or Services are not used properly in accordance with the manufacturer’s specifications and operating instructions or otherwise is abused, damaged, or negligently serviced or maintained by anyone other than Mitel or an authorized Mitel dealer; (ii) work is performed on the Services or Software by anyone not authorized by Mitel; (iii) the Services or Software, as applicable is installed, accessed or used in combination or in assembly with products that are either not approved by Mitel or not compatible with the Services; and should such an event happen, FTC shall be entitled to cure the breach by removal of such products within a reasonable period. The Software Warranty excludes FTC supplied parts and expendable or personal use items such as batteries, headsets, paper, printer ribbons, cabling or non-Mitel telephone sets.
The foregoing are predicated on FTC receiving timely written notice of any nonconformity with as much specificity as is known and as soon as the client becomes aware of such nonconformity, but in any event prior to the expiration of the relevant warranty period.
Mitel shall have the right to inspect and test the Services and the associated local area network and communications infrastructure to determine, in its reasonable discretion, whether the nonconformity is covered under the applicable warranty.
The software products will be covered by the manufacturer’s warranty. Hardware
will be covered by the manufacturer’s warranty. Labour will be warranted for a period of three months unless the client purchases a maintenance agreement. These times will run from completion of installation. Warranties will be voided by non-payment of the invoice rendered by FTC.
The Client is responsible for all costs and procedures associated with End User fraud, such as subscription fraud, cloning fraud, fraud associated with the use of the Offered Service, hacking, fraudulent subscriptions for the Offered Services, or usage on lost or stolen devices, as well as fraud occurring in connection with clients agents, employees or representatives, such as employee-related theft. The client will take reasonable measures to monitor and prevent End User fraud.
The Client is responsible for any items not provided by Mitel or FTC (including, but not limited to, equipment or software) that impair Software or Service quality. The clients agents, employees, representatives and End Users may not interfere with the facilities, the Mitel network, or the Software or Services in a way as to impair the quality of products or services provided by Mitel to Mitel users. Notwithstanding this prohibition, upon discovery of such interference by either Mitel or FTC, the party discovering the interference will promptly notify the other party and the FTC will promptly order the client, agent, employee, representative or End User to cease the act(s) constituting the interference. Mitel or FTC can take reasonable actions to protect against interference, including suspension or termination of Products or Services to an End User. The client agrees to take appropriate action to eliminate interference by any agent, employee, representative or End User. At the clients request, Mitel will troubleshoot the impairment at Mitel’s then-current time and materials rates.
Whilst FTC takes every care and precaution in the preparation of its marketing materials, technical brochures, price lists, and its other literature, these documents are for the Clients’ general guidance only. The Client agrees that it has not relied on any representation made by FTC which has not been expressly stated in this agreement or upon any catalogue, technical circulars, price lists or other literature produced by FTC.
The employees or agents of FTC are not authorised to make any representations concerning the items in The Quotation unless such representations are confirmed by FTC in writing. The client acknowledges by accepting delivery of the Quotation items that it does not rely on and waives any claim for breach of any such representations that are not so confirmed.
1.12. Force Majeure
The company shall not be liable for failure to deliver or install or for any delay in delivery or installation arising from any cause whatsoever beyond the control of FTC and FTC shall not be liable for any consequential damages loss, injury, or prejudice emanating directly or indirectly from failure or delay in delivery or installation arising from such cause notwithstanding that FTC will be entitled to payment for any work already completed or deliveries made calculated on the quoted price and invoiced by FTC. FTC may, at its option, extend the delivery, installation or delivery of service period by declaring Force Majeure to the Client.
1.13. Installation and Site Readiness
1.13.1 Where order placed by the Client includes Installation or Service, the price quoted assumes that the site will be ready for work to commence. Where this is not the case, an additional charge may be levied by FTC.
1.13.2 Minimum Site Requirements: The client shall be required to ensure that End User sites meet certain Minimum Requirements with respect to site preparation and conditions, including without limitation, floor plans, network configuration, environment conditions, provision of service providers, other Minimum Requirements such as cabling, bandwidth, local area network, external listening, and a VoIP ready local Area Network. For purposes of clarity, these Minimum Requirements are the responsibility of the client and are not included in the standard monthly Service fee. Internet access must meet the Minimum Requirements set out by Mitel. However, the client acknowledges that the quality of the Internet connectivity may affect the performance of the MiCloud Unified Communications as a Service service
FTC makes no express warranties beyond those stated in these terms and conditions. All conditions and warranties implied by statute and common law are to the extent permitted by law expressly excluded.
Under the Trade Practices Act 1974 when implied conditions and warranties cannot be expressly excluded, FTC limits its liabilities in the case of the equipment, to the replacement of the equipment or the supply of equivalent equipment, or the repair of equipment, or the paying of costs for replacing the equipment or requiring equivalent equipment, or the cost of having the equipment repaired; and in the case of services, to the supplying of the services again, or the payment of the cost of having the services supplied again at the discretion of FTC.
Notwithstanding anything else contained in these terms and conditions FTC will not be liable to the Client for loss of profits or contracts or other indirect or consequential loss whether arising from negligence, breach of contract or howsoever caused.
The client shall not assign or transfer or purport to assign or transfer this agreement or the benefits thereof to any other person or company without the written consent FTC.
1.16. Law and Jurisdiction
This agreement shall be governed by and construed in accordance with the law in force in New South Wales in Australia and all disputes arising in connection with this agreement shall be submitted to the jurisdiction of the courts in New South Wales in Australia.
Default – If the client is in breach of a material provision of this Agreement (“Default”), then FTC may suspend performance under this Agreement without liability and, if the client has not cured the Default after thirty (30) days written notice, immediately terminate this Agreement for cause. The client shall be deemed in Default if a bankruptcy or insolvency proceeding is filed by or against that party or if that party makes an assignment for the benefit of its creditors. Notwithstanding the foregoing, FTC shall have the option to immediately suspend the Services and/or terminate this Agreement or any Service Order in the event the client or its End User, as applicable, is in violation of FTC’s fair use policy (“Fair Use Policy”); or (ii) is in default of its payment obligations hereunder.
1.18. Software License
All software provided by FTC or Mitel and used by the client and/or End Users to give effect to the Services (“Software”) shall be: (i) provided as object code; and (ii) licensed to the client, as applicable, pursuant to the applicable FTC end user license agreement. Title to the Software shall remain at all times with Mitel or its suppliers; and such Software shall be used only as part of the Services. The client is granted no other rights to the Software and Mitel reserves all other rights.
Mitel may, in its sole discretion, change or update the facilities or Mitel’s operations, equipment, software, procedures or services. Mitel will give commercially reasonable advance notice of any such modifications, changes or updates that are expected to cause a material adverse impact to the Products and Services, but Mitel or FTC is not responsible to End Users if those modifications, changes or updates require changes to, updates of or modifications of the clients or End Users’ devices or other equipment, products, accessories, systems or procedures. Mitel and FTC will use the same efforts to avoid any material adverse impact on the client that it uses to avoid material adverse impacts on Mitel users.
1.20. Redundancy, Disaster Recovery and Business Continuity
Except as expressly set forth in the Agreement, the Services do not include redundancy, disaster recovery or business continuity features, functions, capabilities or services.
1.21. Limitation of Liability
With the exception of Damages arising from (i) a breach by a party of its confidentiality obligations under this Agreement, (ii) violation or misappropriation of Mitel’s intellectual property rights by FTC, (iii) claims involving damage to persons or property, (iv) fraud or fraudulent misrepresentations, in no event shall: (a) either party be liable to the other or to any third-party for special, incidental, indirect, punitive, exemplary or consequential damages (including, but not limited to, loss of use, loss of profits or downtime), whether arising in contract, tort (including negligence), breach of statutory duty, or otherwise; and (b) FTC’s liability for Damages exceed the amounts paid by client r to FTC for the Product upon which the underlying claim is based. In addition, FTC or Mitel shall not be liable for loss of data, the inability to use data, damage or expense arising from the use or inability to use the Software or Services, either separately or in combination with any other system, hardware or software, whether or not Mitel or FTC has received notice of the possibility of such damages
1.22. Invoicing and Payment
At the beginning of each month each month during the Term of this Agreement, FTC will issue an invoice of amounts due by Client.. All Services shall be billed in advance in accordance with the fees set out on the Quotation or as otherwise set out and be due (i) within 14 days following the date of invoice. FTC has the right to immediately suspend and/or terminate Services in the event the client is in default of its payment obligations hereunder. If payment is not received by the Payment Due Date, FTC may, in its sole discretion, (a) terminate this Agreement and retain all sums paid after giving fifteen (15) days prior written notice to cure and/or (b) suspend delivery of any products or performance of any Service under any Service Order immediately without notice until such payments are received by FTC. In addition to the foregoing, any amounts that remain unpaid by the client after the cure period will be subject to the lesser of one and one half percent (1.5%) per month interest rate or the maximum rate allowed by applicable law. FTC reserves the right to perform a credit check as part of the qualification process or any other time at FTC’s sole discretion and, depending on the results of such credit check, alter the payment method required from client.
The default method of payment is monthly direct debit.
Mitel and FTC disclaims any express or implied warranty or condition that the Services or Software prevent toll fraud, unauthorized access, loss or theft of electronic data, or invasion of privacy (collectively, “Fraudulent Activity”). Mitel or FTC shall have no liability to the client or End Users in the event of such Fraudulent Activity. Where applicable, the client is advised that the operation of e-911, 999 or similar such services requires accurate information, which Mitel or FTC has no responsibility for creating or managing. Mitel or FTC makes no warranties, express or implied, and have no liability regarding e-911, 999 or similar such services functionality. Mitel and FTC hereby makes client aware that the “Record a Call Feature” has legal implications as outlined in the relevant Mitel technical documentation(as can be found on edocs.mitel.com). Record a Call does not provide a warning tone; therefore, End Users should indicate verbally that the call is being recorded when activating this feature. The client is herby warned to comply with the laws of the pertinent jurisdiction(s) involved. Mitel and FTC disclaims any responsibility for improper use of this feature. The client is also advised that the External Listen feature contained in some Services may violate certain laws including, without limitation, criminal law, or privacy legislation. Mitel disclaims any responsibility for improper use of this feature. Mitel does not warrant that the operation of the Services or Software will be uninterrupted, virus or error free nor does Mitel warrant merchantability or fitness for a particular purpose
RESPONSE TIMES AND RESOLUTION OF DEFECTS
FTC and Mitel agrees to make commercially reasonable efforts to meet the service levels for responsiveness and resolution outlined below