BEFORE USING THE SHORETEL SERVICES PLEASE READ THESE END USER TERMS OF SERVICE (“TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”). PURSUANT TO THESE TERMS, CUSTOMER SHALL HAVE THE RIGHT TO USE THE SHORETEL SERVICES. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND SHORETEL AUSTRALIA PTY LTD (ABN 48 153 818 618), (“SHORETEL”).
These Terms apply to Customer’s use of the Mitel Services and Equipment provided by Mitel, as well as Customer’s access to the Mitel website (the “Website”).
1.1 Installation, Initiation and Service. Mitel will begin installation, initiation and Service only after it receives and accepts the following: (a) a duly executed Order Form; and (b) any amounts payable in advance in accordance with the applicable Order Form. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written public comments made by Mitel with respect to future functionality or features.
1.2 Service Fees. Customer must pay all charges and fees for the Services and Equipment as set out or referred to in each Order Form (“Service Fees”).
1.3 Invoicing. Customer will be invoiced a month in advance for non-usage-based charges and in arrears for all usage-based charges, unless otherwise stated in the Order Form. “Service Activation Date” means the date in which a particular Service is available for use. Services shall be deemed accepted by Customer on the Service Activation Date. Mitel will notify Customer in accordance with the information provided by Customer or in the Mitel website Customer Portal.
1.4 Payment. Unless otherwise stated in the Order Form, all Service Fees are payable within 30 days from the date of the invoice. All Service Fees are quoted in Australian currency and are exclusive of any taxes and GST. Any payment not received from Customer by the due date (except with respect to charges Customer disputes in good faith), will accrue interest at the lower of 1.5% or the maximum rate permitted by law per month from the date such payment is due until the date paid.
1.5 Suspension of Service. If any Customer account is thirty (30) days or more overdue (except with respect to charges Customer disputes in good faith), Mitel may suspend or disable the Services after providing reasonable notice to Customer without any liability to Mitel, until such account is paid in full. A reconnection fee may apply.
1.6 Taxes. Unless otherwise stated in the Order Form, Customer is responsible for all taxes, levies, imposts, duties, excise, and charges, deductions or withholdings, however described, imposed by law or government authority or agency, but excluding GST and any tax imposed on, or calculated having regard to, Mitel’s net income, with respect to the Services ordered.
1.7 GST. Where GST is imposed on a taxable supply made under this Agreement and the recipient of that supply receives a tax invoice for that supply, the recipient must pay the GST to the supplier (without deduction or set-off) by the tax invoice due date. If one party is required to indemnify or reimburse another party (“Payee”) for any cost, loss or expense, the indemnity or reimbursement payable does not include any amount for which the Payee (or an entity grouped with the Payee for GST purposes) is entitled to an input tax credit, but will be increased under the above clause if the amount payable is consideration for a taxable supply. In this Agreement, terms used that are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given in that Act.
2. Other Networks; Approval and Usage. Mitel Services require the ability to transmit data through third party networks and carriers, public and private (“Third Party Networks”). Customer acknowledges that use of or presence of third party networks and carriers may require approval of the owners or operators of such Third Party Networks, and will be subject to any terms and conditions that such Third Party Networks may establish. Customer understands that Mitel does not own or control the Third Party Networks, and agrees that Mitel shall not be responsible or liable for the performance or non-performance of the Third Party Networks, or within interconnection points between the Service and the Third Party Networks.
3.1. Term of the Agreement. This Agreement commences on the date Customer signs the Order Form, and continues until all Services expire or are terminated, or this Agreement is terminated, in accordance with its terms.
3.2. Term of the Services. Mitel will provide the Services for the initial term of service specified in the Order Form (the “Initial Service Term”). The Initial Service Term shall begin on the Service Activation Date (the “First Service”). Following the Initial Service Term, Services shall automatically renew for additional terms equal to the Initial Service Term at the New Service Monthly Commitment (as such term is defined below) in effect at the time of renewal (each, a “Renewal Term”) unless and until either party notifies the other party in writing at least thirty (30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services (the Initial Service Term and any Renewal Term collectively referred to as the “Term”). If, during the Initial Term or any Renewal Term, Customer adds any additional services to its use of the Service, the amount of Customer’s monthly recurring charges shall increase the sum set forth in the original Customer Service Order Form (the “New Service Monthly Commitment”). And, the Service Term for any such additional Services shall be coterminous with the Initial Service Term or any Renewal Term in effect at the time.
3.3 Termination. This Agreement may be terminated by either party by written notice to the other party, if: (a) the other party commits a material breach of this Agreement and fails to remedy that breach within thirty (30) days of receiving a written notice to do so; (b) the other party commits a material breach of this Agreement and the breach in incapable of remedy; or (c) the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3.4 Early Termination. If Customer wishes to terminate any of the Services under this Agreement prior to the expiration of the current Service Term and such termination is not due to Mitel’s material breach, all recurring charges on the most current invoice which would otherwise be due through to the end of the Service Term in effect at the time (including all applicable taxes) shall be due and payable within thirty (30) days of the effective date of termination. The parties agree that these early termination charges are a reasonable pre-estimate of the loss Mitel expects to suffer and is not a penalty.
4. Suspension of Services. Mitel may suspend or limit provision of a Service at any time by written notice to Customer: (a) in the event of an emergency; (b) if required by law; (c) if providing or use of the Service is illegal, or Mitel believes that it may become illegal; (d) if Mitel need to perform necessary maintenance work; or (e) if Mitel’s supply arrangements are terminated with any of its suppliers required for the provision of all or any part of the Service.
5. Rules of Use. Customer must at all times comply with Mitel’s Rules of Use as posted on Mitel’s website at https://www.au.shoretel.com/RoU, as amended by Mitel from time to time. If Mitel becomes aware of Customer’s violation of the Rules of Use or illegal use of Mitel Services, facilities, network or third party networks accessed through the Mitel network, or Mitel otherwise has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Mitel or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any violation of the Rules of Use or illegal use, Mitel may immediately suspend the Service without further liability to Mitel. Further, upon notice to Customer, Mitel may modify or suspend the Service as necessary to protect its networks, customers or comply with any law or regulation. Under no circumstances will Customer take any actions in connection with its use of the Service that could result in any harm or damage to Mitel’s network, any third party network(s), Mitel’s premises, any equipment of Mitel or any other Mitel customer.
6. Fraud. Customer must notify Mitel promptly if it becomes aware of any fraudulent, illegal or unauthorised use of its account, Service or Equipment. Mitel shall not be liable for any damages whatsoever resulting from any fraudulent, illegal or unauthorised use of Customer’s account. Customer is solely responsible for any use of the Services or Equipment, by Customer or any third party whether authorised or not, including the payment of all charges to Customer’s account.
7. Service Levels. Mitel will use commercially reasonable efforts to minimize service disruptions and outages. If Mitel fails to meet a service level, Customer may be entitled to, as Customer’s sole remedy, the service level credits and/or remedies for the applicable Service in accordance with Mitel’s Service Level Agreement posted on Mitel’s web site at: https://www.au.shoretel.com/SLA-au, as amended by Mitel from time to time upon notice to Customer.
8. Emergency call service (000). Customer acknowledges that if the Service is unavailable for any reason (including in the event of a power failure or where the Service is suspended), Customer will not be able to call the emergency call service (000). For this reason, Mitel recommends that that Customer has an alternative method of making calls, such as a mobile telephone. Mitel cannot guarantee that Customer’s service location will be displayed to an emergency services operator. For this reason, Customer must inform the operator of the location from where Customer is calling.
9. Telephone numbers. The Telecommunications Numbering Plan sets out rules for issuing, transferring and changing telephone numbers. Mitel must comply with the Telecommunications Number Plan. In using the Service, Customer must not do anything that would be inconsistent with the Telecommunications Numbering Plan or that would adversely affect Mitel’s ability to comply. Customer acknowledges that: (a) Customer has no ownership, interest or goodwill in any telephone numbers issued to Customer; (b) termination of the Service for any reason will result in immediate loss of all telephone numbers associated with a Service unless they are ported to another service provider prior to termination of the Service; and (c) if Mitel provides Customer with an out-of-area number, Customer may not be able to port that number to another service provider in the future, and calls to and from the number will be charged as if Customer is located in the area identified by the number.
10. Equipment. If specified on an Order Form, Mitel may rent or sell certain equipment to Customer to be used in connection with the Service (“Equipment”), subject to the terms and conditions of Mitel’s Equipment Policy posted on Mitel’s web site at: https://www.au.shoretel.com/ERP, as amended by Mitel from time to time.
11. Confidentiality. In this clause "Confidential Information" means all confidential information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that is designated in writing as confidential or is by its nature confidential (including the terms and conditions of this Agreement), but excludes information which: (a) is known publicly other than by a breach of confidentiality; (b) the Receiving Party already knew or had, on a non-confidential basis, before receiving the information from the Disclosing Party; (c) has been independently developed by the Receiving Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except: (a) with the Disclosing Party’s prior written consent; (b) to its officers, employees, agents, contractors, sub-contractors and professional advisers on a ‘need-to-know’ and confidential basis; or (c) if disclosure is required by law, any regulatory authority or the rules of any stock exchange. The Receiving Party must keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such disclosure (to the extent legally permitted) and reasonable assistance (at Disclosing Party’s cost) if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for any breach of confidentiality under this clause may not be an adequate remedy and that, if necessary, the Disclosing Party may seek and obtain specific performance or injunctive relief, in addition to any other remedies available at law.
13. Resale. Customer represents and warrants that it will be the end user of the Services. Customer shall not in any way resell, resupply, license or permit or suffer any third party to use the Services without Mitel’s prior written consent.
14. Disclaimer of Warranties. Except as expressly provided in this Agreement, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis. Other than as expressly provided in this Agreement, SHORETEL DOES NOT MAKE, AND EXCLUDES, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR, NON-INFRINGEMENT OR TITLE TO THE MAXIMUM EXTENT PERMITTED BY LAW. Mitel does not warrant that the Services will meet the Customer's requirements or that the operation of the Services will be uninterrupted or error-free. Further, Mitel does not warrant that all errors in the Services can be corrected.
14.1 Disclaimer of Third Party Actions and Control. Customer acknowledges and agrees that Mitel does not and cannot control the flow of data between Mitel’s network and Third Party Networks. Such flow depends on the performance of Third Party Networks and the services provided or controlled by third parties. Action or inactions caused by these Third Party Networks can produce situations in which Mitel customers’ connections may be impaired or disrupted. Although Mitel will use commercially reasonable efforts to remedy and avoid such events, Mitel cannot issue any warranties over these Third Party Networks or any disruptions that may occur. THEREFORE, WITHOUT LIMITING THE GENERALITY OF CLAUSE 12 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW SHORETEL EXCLUDES ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE, NONPERFORMANCE OR INCORRECT PERFORMANCE OF THIRD PARTY NETWORKS.
15. Limitation of Liability IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. UNDER NO CIRCUMSTANCES WILL SHORETEL BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. TO THE EXTENT PERMITTED BY LAW, SHORETEL’S AGGREGATE LIABILITY WHETHER UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID AND/OR DUE BY THE CUSTOMER UNDER THIS AGREEMENT. SHORETEL’S LIABILITY WILL BE REDUCED TO THE EXTENT THE LOSS OR DAMAGE IS CAUSED BY CUSTOMER OR ANY CUSTOMER EMPLOYEE, CONTRACTOR OR AGENT.
16. Mitel’s Indemnification of Customer. Mitel shall indemnify and hold harmless the Customer against any loss, damage or costs incurred in connection with any claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party arising from damage to tangible personal property located at, or from injury to or the death of any person occurring at, Customer’s premises that result from any negligent or willful acts or omissions of Mitel (or of any agent, employee or contractor of Mitel) that occur in the course of the performance of any Service installation or maintenance work at the Customer’s premises.
16.1 Customer’s Indemnification of Mitel. The Customer agrees to indemnify and hold Mitel harmless against any loss, damage or costs incurred in connection with any Claims made or brought against Mitel by a third party arising from or relating to Customer’s or any user’s use (or attempted use) of the Services or Equipment, except to the extent the loss, damage or cost is caused by Mitel’s acts or omissions.
16.2 Mutual Provisions. Each party's indemnity obligations are subject to the following: (a) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (b) the indemnifier shall have sole control of the defence and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (c) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defence of such Claim.
17. Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement, due to any act beyond its reasonable control, including any act of war, act of God, earthquake, flood, embargo, riot, sabotage, terrorist attack, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance, service interruption by a telecommunications services provider, or connectivity delays with internet providers outside of Mitel’s reasonable control, provided that the delayed party (a) gives the other party prompt notice of such act and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
18. No Lease. Except as otherwise provided in this Agreement, this Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any interest whatsoever (leasehold or otherwise) in any premises, real or personal property, equipment or servers of Mitel or in any personal property or server space leased by Mitel (except for the Equipment rental), and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or codes.
19. Government Regulations. Customer will not use the Mitel network or the Services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside of Australia without first complying with all export control laws and regulations which may be imposed by the Australian Government and any country or organization of nations to whose jurisdiction Customer is subject.
20. Assignment. Customer must not assign or novate any of its rights or obligations under the Agreement without the prior written consent of Mitel, which will not be unreasonably withheld. The Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
21. Changes to these Terms. We may change these Terms (including the Mitel Service Level Agreement, Rules of Use, Equipment Policy and any other documentation that applies to the Service) at any time, excluding the fees set out in each Order Form. Changes will be posted on Mitel’s website, and will become effective and will be deemed accepted by Customer: (a) immediately for those Customers who purchase the Services after the updated version is published on Mitel’s website; or (b) for those Customers having pre-existing accounts, the updated version will be deemed effective with Customer’s continued use of the Service. If Mitel reasonably believes the change will adversely affect Customer, Mitel will give Customer reasonable notice of the change. If the change will materially adversely affect Customer, Customer may terminate the affected Service within forty two (42) days from the date of Mitel’s notice without the payment of any early termination charges (provided that Mitel can recover any outstanding Service Fees incurred up to the date of termination).
22. Notices. Notices regarding: (a) material changes to this Agreement; (b) internal or external changes materially impacting Mitel’s ability to do business; (c) breach; (d) termination; or (e) any other material information required to be in writing, must be in writing and in English, and sent to the addresses given above in the heading to this Agreement or to such other address as a Party may designate by notice to the other Party from time to time. A notice will be deemed to have been received: (a) if delivered personally, on delivery; (b) if sent by email or facsimile, by confirmed email or facsimile; or (c) if sent by prepaid, registered or certified mail within Australia, on the third business day after mailing within Australia (or on the seventh business day after mailing if sent from one country to another).
23. Governing Law. This Agreement is governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that place and the courts of appeal from them.
24. Disputes. In the event of any dispute or claim arising from or related to this Agreement, the parties, in good faith, will initially attempt to resolve the dispute between them, before starting mediation or court proceedings (except for urgent injunctive or declaratory relief). If the dispute is not resolved by the parties within fourteen (14) days, either party may refer the dispute for mediation administered by the Australian Commercial Disputes Centre in accordance with its Mediation Guidelines. Each party will bear its own costs in respect of the mediation. The cost of any mediator or expert (including fees and out-of-pocket expenses) will be shared equally between the parties.
25. Entire Agreement. These Terms and any Order Form(s) represent the complete agreement and understanding of the parties with respect to the subject matter of this Agreement, and supercedes, any other agreement, understanding or representations, written or oral, between the parties with respect to the subject matter of this Agreement. In the event of an inconsistency between these Terms and the Order Form(s), the terms of the Order Form shall apply to the extent of the inconsistency.
26. Severability. If any clause (or part thereof) in this Agreement is held by a court to be invalid or unenforceable, that clause (or part thereof) is to be regarded as having been deleted from this Agreement, and this Agreement otherwise remains in full force and effect.
27. Surviving Provisions. The parties agree that any clauses under this Agreement relating to limitations or exclusions of liability, disclaimers of warranties, indemnities, confidentiality, disputes and notices will survive expiry or termination of this Agreement, including any other clause which by its nature is intended to do so.