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Defined terms

 

In this agreement:

Acceptable Currency means a currency that Teloniq Communications has accepted as consideration for purchasing Teloniq Communications Credit.

Acceptable Use Policy means Teloniq Communications’s acceptable use policy as published on the Website from time to time.

Account means an online account used to access the Services.

Account Balance means, for a given Account, the balance of Teloniq Communications Credit for that Account.

Additional Services means all Services other than Messaging Services provided by Teloniq Communications to the Customer under this agreement.

Business Day means a day in the State of Victoria, Australia that is not a Saturday, a Sunday or a gazetted public holiday in that State.

Business Hours means the period between 9.00am and 5.00pm on a Business Day.

Sub Account has the meaning given to that term in clause 5.1.

Sub Account Nominee means, in relation to a Sub Account, the person nominated by the relevant Customer to be the principal point of contact on the Sub Account.

Claim means a claim, demand or proceeding arising out of a cause of action, including breach of contract, tort (including negligence) and any other common law, equitable or statutory cause of action.

Commencement Date means the date that Teloniq Communications notifies the Customer of Teloniq Communications’s acceptance of the Customer Request submitted by the Customer through the Website (whether such notification is by email, by onscreen confirmation of acceptance or otherwise).

Complaints Handling Policy means Teloniq Communications’s dispute resolution and complaints handling policy as published on the Website from time to time.

Confidential Information of a Disclosing Party means:

the following information, regardless of its form and whether the Receiving Party becomes aware of it before or after the date of this agreement;
information that is by its nature confidential;
information that is designated by the Disclosing Party as confidential; and
information the Receiving Party knows, or ought to know, is confidential;
all notes and other records prepared by the Receiving Party based on or incorporating information referred to in paragraph (1); and
all copies of the information, notes and other records referred to in paragraphs (1) and (2), but excludes information that:
the Receiving Party creates (whether alone or jointly with any third person) independently of the Disclosing Party; or
is public knowledge (otherwise than as a result of a breach of confidentiality by the Receiving Party or any of its permitted disclosees).
Customer Data means data and information relating to the Customer and its operations, facilities, personnel, assets, products, sales and transactions (including information relating to the Customer’s Message Recipients).

Customer Request means the online application form completed by the Customer on the Website and submitted to Teloniq Communications when establishing an Account.

Customer’s Primary Account means the Account established under this agreement which is determined by Teloniq Communications from time to time to be the Customer’s primary account.

Damages means all liabilities, losses, damages, costs and expenses (including all legal costs determined on a solicitor and own client basis) whether incurred or awarded against a party, disbursements, costs of investigation, litigation, settlement and judgment, and interest, fines and penalties, regardless of the Claim under which they arise.

Direct Debit Request Form means the direct debit request form available on the Website from time to time.

Direct Debit Transaction has the meaning given to that term in clause 8.1.

Disclosing Party means a party who discloses or makes available Confidential Information to a Receiving Party.

Estimator Tool means the functionality provided on the Website where a Customer may estimate the anticipated Fee for particular Services.

External Factors has the meaning given in clause 2.4.2.

Fee means all fee, charge and other amount payable by the Customer to Teloniq Communications under this agreement.

Force Majeure means:

act of God, lightning, storm, flood, fire, earthquake, explosion cyclone, tidal wave, landslide or adverse weather conditions;
act of public enemy, war (declared or undeclared), act of terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion or epidemic;
the effect of any applicable laws, orders, rules or regulations of any government or other competent authority;
embargo, power or water shortage or lack of transportation;
any External Factors; or
any other event beyond the reasonable control of a party.
Governmental Agency means any governmental, semi-governmental or judicial entity or authority.

Harmful Code means any virus, worm, trojan horse, trapdoor, software switch, time bomb, slicing routine, corruptive code, logic bomb, disabling code, disabling routine or expiration dates as these words are generally understood within the technology industry and any equivalent or similar corruptive mechanism.

Intellectual Property Rights means all intellectual property rights, including:

patents, copyright, rights in circuit layouts, designs, registered designs, trade and service marks, trade names and any right to have confidential information kept confidential;
any application or right to apply for registration of any of the rights referred to in paragraph (1); and
all rights of a similar nature to any of the rights in paragraphs (1) and (2) which may subsist anywhere in the world (including Australia).
Laws means:

the common law and equity;
any statute, regulation, by-law, ordinance or subordinate legislation (including the Privacy Laws); or
any licence, permit, authorisation, accreditation, code of practice, code of conduct, order, direction or other requirement which is enforceable against the Customer or Teloniq Communications (as the case may be) or which is issued under an instrument referred to in paragraph (2),
and includes any amendment, change, update or replacement to any of them that may be implemented or take effect during the term of this agreement.

Message means any electronic message (including, SMS and MMS messages), (including the data, information, text, media, images, features, advertisements, promotions, links, pointers and other content comprised in those messages) transmitted or received (via the Customer’s Primary Account or a related Sub Account) through the Teloniq Communications Systems.

Message Cost means the cost to the Customer of submitting a Message for sending to the Teloniq Communications Systems, as determined from time to time in accordance with clause 6.1.

Messaging Services means the messaging and related services provided to the Customer by Teloniq Communications via the Website and the provision to the Customer of access to the Web Tools (including the facility for the Customer to submit Messages for sending through the Teloniq Communications Systems). Message Recipient means, in relation to a Message, the Customer’s intended recipient of that Message.

Personal Information means any information or opinion about a natural person (whether true or not), including ‘personal information’ as that term is defined in the Privacy Act, which either party collects or has access to, stores or discloses, or otherwise handles, in the course of performing, or receiving the benefit of, the Services.

Personnel means, in relation to a party, officers, employees, agents and contractors, including representatives of that party and its Related Corporations.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Laws means:

the Privacy Act, the Health Records Act 2001 (Vic), the Spam Act 2003 (Cth) and the Do Not Call Register Act 2006 (Cth);
all codes, guidelines, service standards, and procedures issued by a Governmental Agency; and
all other laws, rules and regulation in any relevant jurisdiction (including Australia),
to the extent they relate to the privacy, protection, use or disclosure of Personal Information or data.

Privacy Policy means Teloniq Communications’s privacy policy as published on the Website from time to time.

Receiving Party means a party to this agreement who obtains Confidential Information of the other party to this agreement.

Related Corporation has the same meaning as “related body corporate” in the Corporations Act 2001 (Cth).

Services has the meaning given to that term in clause 2.2.

Teloniq Communications Credit means an amount, represented in units of an Acceptable Currency, that may be used as consideration for Services provided in the future.

Teloniq Communications Pre-Existing IPR means any Intellectual Property Rights owned and created by Teloniq Communications prior to the Commencement Date (together with any improvements, modifications and enhancements made to those rights during the term of this agreement).

Teloniq Communications Systems means all hardware, software, materials and resources used by (or on behalf of) Teloniq Communications to provide the Services (and includes the Web Tools).

Supplier means a mobile network operator or an aggregator whose services or infrastructure directly or indirectly receive a Message submitted by the Customer via the Teloniq Communications Systems for sending to the relevant Message Recipient.

Website means the Teloniq Communications website located at www.Teloniq Communications.com (or any successor website as notified to the Customer from time to time).

Web Tools means:

The MXT portal (or any related platform);
Teloniq Communications’s application programming interfaces; and
any other tools specifically made available to the Customer by Teloniq Communications to enable the Customer to receive the benefit of the Services.

In this agreement, unless the contrary intention appears:

  1. headings are for ease of reference only and do not affect the meaning of this agreement;

  2. the singular includes the plural and vice versa and words importing a gender include other genders;

  3. other grammatical forms of defined words or expressions have corresponding meanings;

  4. a reference to a clause, paragraph, schedule or attachment is a reference to a clause or paragraph of or schedule or attachment to this agreement and a reference to this agreement includes any schedules and attachments;

  5. a reference to a document or agreement, including this agreement, includes a reference to that document or agreement as novated, altered or replaced from time to time;

  6. a reference to a party includes its executors, administrators, successors and permitted assigns;

  7. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

  8. any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

  9. any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

  10. words and expressions importing natural persons include partnerships, bodies corporate, associations, governments and governmental and local authorities and agencies; and

  11. a reference to any statute or other legislation is to a statute or other legislation as amended or replaced from time to time.

Services

2.1. Performance of the Services

Teloniq Communications will:

provide the Services to the Customer in accordance with this agreement; and
permit the Customer to access and use the Web Tools for the purposes of receiving the benefit of the Services,
on and from the Commencement Date until such time as the agreement is terminated in accordance with its terms.

2.2. Services

Services means initially, the Messaging Services and any such other Additional Services as agreed between Teloniq Communications and the Customer (where such agreement shall be evidenced by the Customer purchasing such Services using the Web Tools) from time to time.
For the avoidance of doubt:
When you use the Teloniq Communications Systems to transmit a Message, the Message may flow through the systems of several Suppliers (together, the Supplier Chain) before actually being delivered to the Message Recipient’s handset or otherwise.
If the Supplier Chain includes one or more Suppliers, your Message is considered to be delivered by Teloniq Communications once it has been transmitted from the Teloniq Communications Systems to the first Supplier in the Supplier Chain in a form and a manner that allows that Supplier to deliver the Message to the next Supplier in the Supplier Chain or to the Message Recipient (as the case may be).
Actual delivery of a Message to the Message Recipient is dependent on the effective functioning of the Suppliers’ infrastructure, network coverage and the Message Recipient’s mobile handset.
Having regard to clause (2.2.2.1), (2.2.2.2) and (2.2.2.3), if the Supplier Chain includes one or more Suppliers, the Services do not include the actual delivery of a Message to the intended Message Recipient and Teloniq Communications does not accept responsibility for any failure of, or delay in, the delivery of a Message to a Message Recipient provided that Teloniq Communications has delivered the relevant Message to the first Supplier in the Supplier Chain in a form and a manner that allows that Supplier to deliver the Message to the next Supplier in the Supplier Chain or to the Message Recipient (as the case may be).
If the Supplier Chain does not include any Suppliers, Teloniq Communications’s responsibility for any failure of, or delay in, the delivery of a Message to a Message Recipient is limited in accordance with this agreement.
2.3. Access to the Web Tools

The Customer must:
at the Customer’s cost, provide appropriate access devices, software, operating conditions, cabling, telephone lines, modems and internet connections required for it to access the Web Tools and otherwise receive the benefit of the Services;
ensure that no unauthorised use is made of the Web Tools, whether through the Customer’s Primary Account or any Sub Account;
comply with all of Teloniq Communications’s operating and security requirements and procedures relating to:
access to the Web Tools; and
the use of the Services,
(including in respect of passwords and other security information) as displayed on the Website or otherwise notified to the Customer from time to time;

other than as expressly permitted under this agreement, not obtain (nor attempt to obtain) any access to, or interfere with:
any programs or data of Teloniq Communications, a Supplier or any other client of Teloniq Communications; or
any part of the Teloniq Communications Systems or any Supplier’s systems, hardware, software or networks of a Supplier; and
not introduce any Harmful Code into the Teloniq Communications Systems or the systems, hardware, software or networks of any Supplier.
If the Customer becomes aware of or suspects that a breach of any of the obligations set out in paragraph (a) has occurred, the Customer must promptly notify Teloniq Communications, in which case Teloniq Communications may take such action as it considers appropriate (which may included changing the Customer’s passwords and other security information).


2.4. Continuity of Services & Suspension

Notwithstanding anything else in this agreement, Teloniq Communications does not undertake, warrant or guarantee that the Services (including access to the Web Tools or other Teloniq Communications Systems) will be uninterrupted, continuous or error free.
The Customer acknowledges and agrees that the Customer’s use of the Services is dependent on, and affected by, a number of environmental and other factors outside of the reasonable control of Teloniq Communications, including the systems hardware and software of any services provided by Suppliers (External Factors). Subject only to clause 17.4, Teloniq Communications will have no liability whatsoever relating to any failure of, or interruption in the performance of, the Services resulting from any External Factors. In the event of failure of the Services, Teloniq Communications will use reasonable commercial endeavours to restore the Services to an operational state with the minimum practicable delay.
The Customer acknowledges that, from time to time:
Teloniq Communications will conduct routine and other maintenance on the Website and the Teloniq Communications Systems; and
the Suppliers will conduct routine and other maintenance on their respective systems, hardware, software and networks,
and the Customer agrees that, during the conduct of such maintenance, the Customer may not be able to access or use the Services.

The Customer acknowledges and agrees that Teloniq Communications may, in its sole discretion and to the maximum extent allowed by Law, suspend the Services (including the Customer’s access to the Web Tools) in any of the following circumstances:
Teloniq Communications wishes to repair, improve, and/or upgrade the underlying technology of the Teloniq Communications Systems;
Teloniq Communications’s access to any system, software, hardware or network of any Supplier is suspended for any reason;
Teloniq Communications is required to do so by any Governmental Agency or Supplier; or
for any other justifiable reason, including but not limited to, circumstances where the Customer (or the Customer’s Sub Account Nominees) in Teloniq Communications’s opinion are in breach of this agreement, creating problems, possible legal liabilities, or engaging in fraudulent, immoral or illegal activities, or for other similar reasons.


3.1. Customer’s Primary Account

The Customer:

warrants that all information provided in the Customer Request and any other information provided to Teloniq Communications in the course of using the Teloniq Communications Systems is complete and accurate;
must keep the Customer’s Primary Account information current and accurate; and
must keep all of the Customer’s Primary Account information (including the Customer’s password and account name) confidential and secure.
3.2. Licences and compliance

The Customer must:

obtain and maintain throughout the term of this agreement all relevant licences, approvals, permits and certificates:
required in respect of delivery of the Messages; and
otherwise required in order to receive the benefit of the Services;
comply with all applicable Laws and industry codes and practices; and
comply with Teloniq Communications’s directions, policies and procedures relating to the use of the Teloniq Communications Systems and the delivery of the Services.


3.3. Use of Services

The Customer must not use the Services, nor permit the Services to be used:

for sending any communication or Message which:
is defamatory, abusive or of a vulgar, obscene or menacing nature;
is false, inaccurate, misleading or unlawful;
is invasive of a person’s privacy;
is hateful or racially, ethnically, or otherwise objectionable; or
Teloniq Communications determines to be otherwise offensive or inappropriate;
for the persistent sending of Messages without a reasonable cause or for the purpose of causing annoyance, inconvenience or distress to any person;
in a way that contravenes:
any applicable Law (including the Privacy Laws) or industry code or practice; or
any other rules or guidelines posted on the Website or otherwise notified to the Customer by Teloniq Communications from time to time;
in any way that may have a detrimental effect on the goodwill or good standing of Teloniq Communications or any Supplier;
in a way that may expose Teloniq Communications or any Supplier to the risk of any legal or administrative action including prosecution under any Laws;
to transmit any communication or Messages that may harm a minor in any way;
to send unsolicited electronic commercial messages where the recipient has not consented to receive such messages;
to interfere with or disrupt Teloniq Communications’s business, or the services, hardware, software or networks of any Supplier;
in a way that would infringe any person’s Intellectual Property Rights or other rights; or
in any other way that contravenes the requirements of any Supplier as notified to the Customer from time to time (which notification may be given in accordance with clause 21 or by posting a notice on the Website to that effect).


3.4. Acceptable Use Policy

Without limiting clause 3.3, the Customer shall comply at all time with Teloniq Communications’s Acceptable Use Policy.
Where Teloniq Communications makes an amendment to the Acceptable Use Policy, it shall have immediate effect following the amendment first being published on the Website.


3.5. Responsibility for Messages

The Customer:
is solely responsible for all Messages (whether submitted or submitted on the Customer’s own behalf or on behalf of a third party);
must inform Teloniq Communications as soon as possible if the Customer suspects or becomes aware of any unauthorised use of the Customer’s Primary Account or any related Sub Account; and
acknowledges and agrees that Teloniq Communications has no editorial control over the Messages and is under no obligation to review, moderate, amend or modify the Messages as part of the Services.
The Customer acknowledges and agrees that, notwithstanding paragraph (a)(iii), Teloniq Communications and the Suppliers may, in their absolute discretion, monitor the Messages transmitted using the Teloniq Communications Systems.
The Customer must bear all costs arising out of any complaints made in connection with the Messages (including complaints made by any Governmental Agency).


3.6. Volumes and forecasting

The Customer must:
on request by Teloniq Communications from time to time, provide Teloniq Communications with volume forecasts for the use of the Services and such other information that Teloniq Communications may reasonably request concerning the Customer’s use of the Services; and
provide Teloniq Communications with revised volume forecasts for its use of the Services if the Customer anticipates, from time to time, that there is likely to be a significant increase or decrease in its use of the Services.

  1. Teloniq Communications reserves the right to modify this agreement at any time.
    By using the Services, the Customer agrees that Teloniq Communications may provide it with notice of a change to this agreement by publishing the amended agreement on the Website. Such notice will be effective and binding on the Customer from the date that the amended agreement is first published on the Website.
    The Customer must regularly check the Website to ensure that it is complying with the most current version of this agreement.
    Teloniq Communications will use its best endeavours to update the version reference at the head of this agreement following any amendments to its terms in accordance with this clause 4.

5.1. Sub Accounts

Upon being requested to do so by the Customer in the manner designated by the Teloniq Communications Systems, Teloniq Communications may, in its absolute discretion, create one or more Accounts (each a Sub Account) that are linked to the Customer’s Primary Account.
The existence of a Sub Account does not of itself create a separate agreement for Services between Teloniq Communications and the Sub Account Nominee and this agreement shall apply to all Services provided in respect of the Customer’s Primary Account and any related Sub Account.


5.2.Responsibility for Sub Accounts

Unless Teloniq Communications expressly agrees in writing otherwise, the Customer is responsible in all respects for a Sub Account (including the indemnity in favour of Teloniq Communications in clause 18 in respect of all Fees and other costs and expenses attributable to that Sub Account) as if it were the Customer’s Primary Account under this agreement.

5.3. Suspending Sub Accounts

Teloniq Communications may, in its absolute discretion, suspend any Sub Account created by the Customer without notice.

5.4. Stand Alone Sub Accounts

Teloniq Communications reserves the right to require that a Sub Account Nominee enter into a separate agreement for Services. In such case, a separate online Customer Request must be submitted by the Sub Account Nominee with Teloniq Communications. Any Account resulting from the separate online Customer Request (a Stand Alone Sub Account) will not be regarded as a Sub Account of the Customer for the purpose of this agreement.

5.5. Customer’s guarantee & indemnity in respect of each Stand Alone Sub Account

Unless Teloniq Communications expressly agrees in writing that this clause 5.5 does not apply, the Customer:

unconditionally guarantees to Teloniq Communications the punctual observance and performance by each of its Stand Alone Sub Account holders of their respective obligations to Teloniq Communications arising under their respective agreement in relation to the Services; and
indemnifies Teloniq Communications and its Personnel (those indemnified), and will hold those indemnified harmless, against all Damages suffered or incurred by any or all of those indemnified arising, directly or indirectly, out of or in connection with:
a breach by a Stand Alone Sub Account holder of its agreement with Teloniq Communications for the Services;
any negligent or fraudulent act, error or omission by a Stand Alone Sub Account holders, its personnel, agents or Message Recipients;
loss of or damage to any property or injury to or death of any person caused by any act or omission by a Stand Alone Sub Account holder, a Stand Alone Sub Account holder’s personnel, agents, or Message Recipients; or
any Claim by a third party (including any Supplier or Message Recipient) against Teloniq Communications relating to the Services or the subject matter of the Teloniq Communications’s agreement with a Stand Alone Sub Account holder.

6.1. Applicable Message Costs

The Message Costs charged by Teloniq Communications to the Customer will be at the applicable rates available at https://www.teloniq.net/pricing/
The Customer acknowledges that Teloniq Communications may offer different pricing for Messages Services to different Customers based on membership or other categories from time to time.
6.2. Additional Services

Any Additional Services purchased by the Customer will be charged at the price shown to the Customer at the time of making the purchase using the Teloniq Communications Systems.

6.3. Use of the Estimator Tool

The Customer acknowledges and agrees that:

the Estimator Tool is provided for illustrative purposes only;
an amount calculated from time to time using the Estimator Tool does not constitute a quote or an offer capable of acceptance by the Customer; and
the pricing of Messages will ultimately be determined in the manner set out in clauses 6.1 and 6.2.

7.1. Basis for charging

The Customer agrees that:

amounts paid by a Customer to Teloniq Communications constitutes a purchase by the Customer of Teloniq Communications Credit. The Teloniq Communications Credit that is purchased will be credited to the Customer’s Primary Account (or, at the direction of the Customer, a related Sub Account) at the time of purchase;
each time the Customer purchases Messaging Services, the Customer’s Account Balance will be debited by an amount equal to the Fee attributable to those Services (determined in accordance with clause 6.1);
each time the Customer purchases any Additional Services (other than the Messaging Services) the Customer’s Account Balance will be debited by an amount equal to the Fee attributable to those Services (determined in accordance with clause 6.2); and
such amounts will be debited from the Customer’s Account Balance as soon as practicably possible following the purchase through the Teloniq Communications Systems.
7.2. Account Balance must be in credit

At the time of purchasing Services using the Teloniq Communications Systems, the Customer’s Account Balance must contain sufficient Teloniq Communications Credit to cover the entire cost of that transaction. Teloniq Communications will not allow a Customer’s Account Balance to go into debit.

7.3. Nature of the Teloniq Communications Credit

The Customer acknowledges and agrees that:

notwithstanding that the Customer’s Teloniq Communications Credit is represented in the Teloniq Communications Systems as an amount of an Acceptable Currency, the Customer may only use such balance as consideration for Services purchased and has no legal or equitable right to recover (whether by way of refund or otherwise) such sum from Teloniq Communications except as is prescribed by Law or expressly prescribed by this agreement;
no trust or other fiduciary relationship exists between Teloniq Communications and the Customer or any Sub Account Nominee;
Teloniq Communications Credits are:
not transferable from Customer to another Customer; and
are transferable between a Customer and its Sub Account Nominee with the express consent of Teloniq Communications.
7.4. Expiry of Teloniq Communications Credit

Teloniq Communications reserves the right to cancel Teloniq Communications Credit which have not been used within one year effective from 1st Nov 2019 for all credits applied after this date by the Customer in accordance with clause 7.1(1).

In this clause 9, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.

9.2. GST inclusive amounts

For the purposes of this agreement, where the expression GST inclusive is used in relation to an amount payable or other consideration to be provided for a supply under this agreement, the amount or consideration will not be increased on account of any GST payable on that supply.

9.3. Consideration GST exclusive

Any consideration to be paid or provided for a supply made under or in connection with this agreement, unless specifically described in this agreement as GST inclusive, does not include an amount on account of GST.

9.4. Gross up of consideration

Despite any other provision in this agreement, if a party (Supplier) makes a supply under or in connection with this agreement on which GST is imposed (not being a supply the consideration for which is specifically described in this agreement as GST inclusive):

the consideration payable or to be provided for that supply under this agreement but for the application of this clause (GST exclusive consideration) is increased by, and the recipient of the supply (Recipient) must also pay to the Supplier, an amount equal to the GST payable by the Supplier on that supply; and
the amount by which the GST exclusive consideration is increased must be paid to the Supplier by the Recipient without set off, deduction or requirement for demand, at the same time as the GST exclusive consideration is payable or to be provided.
9.5. Reimbursement (net down)

If a payment to a party under this agreement is a reimbursement or indemnification, calculated by reference to a loss, cost or expense incurred by that party, then the payment will be reduced by the amount of any input tax credit to which that party is entitled for that loss, cost or expense.

9.6. Fees exclusive of Taxes 

Except as otherwise specified in this agreement and subject to paragraph (b), the Fees and any other fees and charges payable by the Customer under this agreement are exclusive of all taxes, duties and charges imposed or levied in Australia or overseas in connection with this agreement or the Services.
Teloniq Communications is solely liable for all taxes on income and revenue, and any capital gains accrued or paid, in respect of the Services.


9.7 Stamp duty and other Taxes 

9.7.1. Stamp duty

Any stamp duty, duties or other taxes of a similar nature (including fines, penalties and interest) in connection with this agreement or any transaction contemplated by this agreement must be paid by the Customer.

9.7.2. Withholding tax

If a Law, or regulation pursuant to a Law, requires the Customer to deduct or withhold an amount on account of any tax from any payment to Teloniq Communications under or in connection with this agreement:

the Customer must make the withholding or deduction; and
the amount of the payment to Teloniq Communications must be increased by such additional amount as is necessary to ensure that the amount received and retained by Teloniq Communications (after taking into account all deductions and withholdings on account of tax) is equal to the amount that Teloniq Communications would have received had the payment in question not been subject to any deductions or withholdings.

10.1. Use and disclosure

A Receiving Party:

may use Confidential Information of the Disclosing Party only for the purposes of this agreement; and
must keep confidential all Confidential Information of the Disclosing Party except:
for disclosures permitted under this clause 13; and
to the extent (if any) the Receiving Party is required to disclose any Confidential Information by Law or in accordance with the rules of an applicable stock exchange.


10.2. Use and disclosure of Confidential Information

A Receiving Party may disclose Confidential Information of the Disclosing Party:

in the case of Teloniq Communications, to Suppliers as required by the terms of any agreements between Teloniq Communications and those Suppliers; and
to persons who:
have a need to know for the purposes of this agreement (and only to the extent that each has a need to know); and
before disclosure:
in the case of the Personnel of the Receiving Party, have been directed by the Receiving Party to keep confidential all Confidential Information of the Disclosing Party; and
in the case of other persons, have agreed in writing with the Receiving Party to comply with substantially the same obligations in respect of Confidential Information of the Disclosing Party as those imposed on the Receiving Party under this agreement,
(each a Direction).

10.3. Receiving Party’s obligations

A Receiving Party must:

ensure that each person to whom it discloses Confidential Information of the Disclosing Party under clause 13.2(b)(ii) complies with its Direction; and
notify the Disclosing Party of, and take all reasonable steps to prevent or stop, any suspected or actual breach of a Direction.
10.4. Disclosure required by Law

If a Receiving Party is required by Law or the rules of an applicable stock exchange to disclose any Confidential Information of a Disclosing Party to a third person (including government) the Receiving Party must:

before doing so:
notify the Disclosing Party; and
give the Disclosing Party a reasonable opportunity to take any steps that the Disclosing Party considers necessary to protect the confidentiality of that information; and
notify the third person that the information is confidential to the Disclosing Party.

Each party:

agrees to be bound by the Privacy Laws applicable to it with respect to any act done or practice engaged in by the party for this agreement (including, in relation to the Customer, in respect of the collection, use, disclosure and storage of the Personal Information of Message Recipients);
must (and must ensure that its Personnel) comply with:
the Privacy Laws and all guidelines issued by applicable privacy offices (and any similar regulatory bodies); and
the Privacy Policy;
must notify the other party immediately:
of any complaint from any person alleging a breach of the Privacy Laws;
if it becomes aware of a breach, or a suspected or possible breach, by it of any of its obligations under this clause 14; or
if it becomes aware that any disclosure of Personal Information may be required by Law;
Cooperate with the other party in:
resolving any complaint alleging a breach of the Privacy Laws or any privacy statement regarding any Personal Information; and
providing access to any record of Personal Information following a request from an individual; and
Take appropriate technical and organisational measures to prevent (to the extent reasonably practicable):
unauthorised or unlawful use or disclosure of; and
accidental loss or destruction of, or damage to,
Personal Information.

Teloniq Communications must not (and must ensure that its Personnel do not):

use Customer Data held by Teloniq Communications, or to which Teloniq Communications has access, other than for the purposes of fulfilling its obligations under this agreement; or
purport to sell, let for hire, assign rights in or otherwise dispose of any Customer Data, other than as required to enable Teloniq Communications to:
disclose Customer Data to Suppliers in accordance with the terms of Teloniq Communications’s agreements with such Suppliers; and
comply with applicable Laws or the rules of any applicable stock exchange.

13.1. Termination by the Customer for convenience

The Customer may terminate this agreement at any time for convenience by giving Teloniq Communications notice in writing to that express effect.

13.2. Termination by Teloniq Communications for convenience

Teloniq Communications may terminate this agreement at any time for convenience by giving the Customer notice in writing to that express effect.

13.3. Termination by Teloniq Communications for cause

Teloniq Communications may terminate this agreement immediately by notice to the Customer if:

the Customer commits any breach of this agreement that is:
capable of remedy and the Customer fails to remedy the breach within 30 days after receiving written notice requiring it to do so; or
incapable of remedy;
the Customer ceases to be able to pay its debts as they become due;
any step is taken by a mortgagee to take possession or dispose of the whole or part of the Customer’s assets, operations or business;
any step is taken to enter into any arrangement between the Customer and its creditors;
any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of the Customer’s assets, operations or business;
the Customer disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;
the Customer ceases to carry on business;
the Customer is a partnership, any step is taken to dissolve that partnership; or
the Customer has not accessed its Account (including any Sub Account) for a continuous period of 2 years or more.

13.4. Consequences of termination

On termination of this agreement for any reason:
the Customer must:
promptly return all materials, information and documentation provided to the Customer or the Sub Account Holders by Teloniq Communications in connection with the Agreement;
refrain from accessing or using any Teloniq Communications Systems (including the Web Tools), and ensure that none of the Customer’s Personnel, the Sub Account Holders or the Sub Account Holders’ Personnel access or use any of the Teloniq Communications Systems; and
Teloniq Communications may:
cancel the Customer’s Primary Account and all its Sub Accounts;
terminate all means or modes of access and use of the Teloniq Communications Systems by the Customer and its Personnel; and
be regarded as discharged from any further obligations under this agreement.
Despite anything else in this agreement, the Customer acknowledges and agrees that Teloniq Communications may keep a reasonable number of copies of:
the Customer’s Confidential Information disclosed to Teloniq Communications under this agreement; and
the Customer Data,
for record keeping and quality control purposes, to allow Teloniq Communications to comply with all applicable Laws, and to otherwise fulfil the terms of Teloniq Communications’s agreements with Suppliers.

If Teloniq Communications terminates this agreement in accordance with clause 13.2, all of the Customer’s and the Customer’s Sub Accounts’ Teloniq Communications Credit shall be refunded.
If the Customer terminates this agreement in accordance with clause 13.1, all of Teloniq Communications Credit credited to the Customer’s Primary Account and any related Sub Account shall be forfeited.
13.5. Accrued rights and remedies

Termination of this agreement will not prejudice any right of action or remedy which may have accrued to either party prior to such termination.

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