The clauses below set forth the terms and conditions ("Agreement") upon which Atom Tel Pty Ltd (ABN 85 608 255 947) ("COMPANY") located at Level 2, 150-152 Elizabeth Street, Sydney NSW 2000, Australia, shall provide and Customer shall purchase wholesale voice over Internet protocol ("VoIP") services ("Services"). Customer agrees as follows:
Rates and Codes: Rates are shown in terms of full minutes and calls are billed in one (1) second increments after the initial one (1) second call duration, with the exception of: (a) calls to Mexico (all breakouts) which are billed in sixty (60) second increments with a minimum call duration of sixty (60) seconds; and (b) calls to Gambia (all breakouts) which are billed in one (1) second increments with a minimum call duration of sixty (60) seconds. COMPANY reserves the right to increase or decrease its rates and/or change destination codes at any time upon email notice; any such decreases (other than by code deletion or addition) shall be effective immediately unless otherwise stated in the email notice. Any rate increases and/or changes to destination codes shall be effective no earlier than 00:00:00 Coordinated Universal Time ("UTC") on the "Effective Date," where the Effective Date means the date on which such email notice is sent PLUS seven (7) days. Notice of such changes shall be sent via email to the email address(es) provided by Customer. It is Customer's sole responsibility to maintain and update such email address(es). All in-effect rates and codes will be listed on the web portal. The time zone(s) used for identifying effective times and dates for changes contained in any written notice, all peak, off peak and economy traffic, and invoicing and other time sensitive matters shall be UTC time.
Currency: Customer will be billed and will make payments in U.S. Dollars ($), as such currency is selected at the time of account sign up.
Resale of Services: All Services are provided for resale to Customer's customers, end users or subscribers. Customer is responsible for billing and collection from its customers, end users and subscribers including all taxes and fees. Customer is responsible for obtaining and maintaining all licenses, approvals and other authorizations necessary for the resale of Services. Customer hereby agrees to execute such other documents (including but not limited to Universal Service Fund forms) as COMPANY may reasonably request from time to time.
Interconnection: The Parties shall connect their respective telecommunications switches via VoIP equipment which may be provided by a third party supplier ("Supplier"). Each Party shall be responsible for procuring its VoIP equipment from its chosen Supplier and for all contractual obligations with that Supplier. Each Party will notify the other of the date from which the notifying Party's connectivity will be available. It is the Customer’s sole responsibility to safeguard its passwords, equipment and interconnection. COMPANY will not be liable for any unauthorized traffic which originates or terminates over the interconnect.
Prefix Routing: Some Customers will be given access to COMPANY's "carrier prefix dialling feature", which will allow Customer to route each call to the desired carrier by entering a dialing prefix as defined by COMPANY. Failure to prefix a call properly will result in calls being billed at the "default" division rates, a setting Customer controls via the web portal.
Suspension of Services: All Services are offered on a commercially reasonable basis only and are not guaranteed. In addition, COMPANY reserves the right to immediately suspend all or any part of the Services if: (i) Customer engages in activities that, in COMPANY's sole discretion, may cause disruption or damage to COMPANY's network or facilities; (ii) COMPANY detects any suspected fraudulent use of the Services and/or Artificially Inflated Traffic (defined below), whether directly or indirectly; (iii) Customer's account is inactive (passes no billable calls) for ninety (90) consecutive days; (iv) COMPANY requests identifying or other documentation from Customer for legal, administrative or regulatory purposes and Customer fails to provide appropriate documentation (in COMPANY's sole discretion) within a reasonable time; (v) No Customer monies are deposited into Customer's account within thirty (30) days of account turn up; and/or (vi) Customer exceeds its Credit Limit (defined below).
Payment: COMPANY shall, in its sole and absolute discretion, establish and modify payment terms and a credit limit for Customer. Such information shall be listed on the web portal. Customer shall make payment to COMPANY via Western Union Quickpay transfer or wire transfer of U.S. Dollars or Euros (as applicable) in accordance with the "Credit Limit," "Payment Terms" and "Invoice Due Date" fields set forth on the web portal. All wire transfer or Western Union fees shall be borne by Customer, such that COMPANY receives the full amount of the amount billed. Any payment shall be deemed valid only when it reaches COMPANY's account as cleared funds. If payment is not made in full by the due date, COMPANY shall have the right to suspend or terminate the delivery of all or any part of the Services provided hereunder without notice or demand until such time as payment, including applicable interest, is paid in full. Any payments not received by COMPANY by the due date will bear interest at a rate of one and one-half percent (1½ %) per month or the maximum rate permitted by law, whichever is less, from the due date until paid in full. Any payments received that are less than the total amount due will be applied first to interest and collection fees, then to the oldest invoice(s) outstanding.
Credit Limit: “Credit Limit” is defined as all unpaid amounts invoiced to Customer plus non-invoiced usage. Service shall be suspended without notice when the Credit Limit is reached or exceeded unless (a) an interim payment is made prior to the due date; or (b) a credit limit increase has been applied for by Customer and granted by COMPANY at its sole discretion prior to the due date. To ensure that the Credit Limit is not exceeded over a weekend or holiday, Customer shall make all interim payments so that cleared funds are in COMPANY'S account by the immediately preceding Thursday before 5pm New York time.
COMPANY may, in its sole discretion, require Customer to provide a cash deposit. The amount of the cash deposit shall be determined by COMPANY and shall be due seventy-two (72) hours prior to activation of Services. If Customer is already purchasing Services from COMPANY at the time of the deposit request, the deposit shall be due within twenty-four (24) hours of COMPANY’s request. COMPANY may offset against the cash deposit any amounts due under this Agreement by Customer that are not paid when due. Upon the expiration or termination of this Agreement for any reason, COMPANY will have the right to offset against the deposit any amounts owed to it by Customer, including any and all accrued interest or fees. Upon the reasonable request of COMPANY, Customer shall promptly increase the amount of the deposit, within twenty-four (24) hours written notice by COMPANY. If Customer fails to comply with any term or condition contained in this paragraph, COMPANY shall have the right to suspend the delivery of all or any part of the Services provided hereunder or terminate this Agreement without notice or demand.
Prepayment: Customer shall prepay COMPANY for all Services via PayPal or credit card payment in U.S. Dollars. All PayPal or credit card user fees (including foreign currency or international transaction fees) shall be borne by Customer, such that COMPANY receives the full amount of the amount billed. In the event the prepayment amount reaches $0, Services shall be automatically suspended. In such event, COMPANY may (but is not obligated to) reinstitute Services to Customer once the prepayment has been replenished. Any suspension or termination shall not relieve Customer of its obligation to pay any amounts due hereunder. A prepayment replenishment shall be deemed valid only when such replenishment is in COMPANY's account as cleared funds. If Customer's account is inactive for a period of ninety (90) consecutive days, then COMPANY reserves the right to expire Customer's account and all Customer funds will become the property of COMPANY. Notification of expiration will be made prior to and on the day of the suspension of Services.
Taxes and Fees: All Services under this Agreement are provided exclusive of any applicable federal, state, local, or foreign taxes, duties, or charges imposed by any governmental authority, or as otherwise provided pursuant to this Agreement. Such taxes, duties, or charges shall be paid directly by Customer. All amounts payable by Customer under this Agreement shall be made without deduction or counterclaim and, except to the extent required by any law or regulation, shall be made free and clear of any deduction or withholding on account of any tax, duty or other charges of whatever nature imposed by any taxing or governmental agency or authority. If Customer is required by any law or regulation to make any such deduction or withholding, Customer shall, together with the relevant payment, pay such additional amount as will ensure that COMPANY actually receives and is entitled to retain, free and clear of any such deduction or withholding, the full amount which it would have received if no such deduction or withholding had been required. COMPANY may impose any governmental or regulatory fees on a retroactive basis. Further, all Australian-addressed Customers shall be required to pay for GST, in which case these amounts will be included when payment is collected.
Disputed Charges: If Customer, in good faith, disputes the amount of any charge included in a bill, Customer must notify COMPANY in writing of the disputed charge within thirty (30) days of billing and provide documentation reasonably required to resolve the dispute. Failure to contest a charge within thirty (30) days of the date of billing will create an irrefutable presumption of the correctness of the charge and Customer shall have waived its right to dispute those charges. In addition, for prepaying Customers, if payment is made via credit card or PayPal, any credits or refund made to Customer's account must have COMPANY'S written authorization.
Termination: COMPANY reserves the right to terminate the Services, or any portion thereof, upon a breach of this Agreement by Customer. Upon termination, COMPANY will be entitled to immediately cease providing Services. Notwithstanding termination, the provisions that, by their nature survive termination, will continue to apply.
Force Majeure: Neither Party shall be responsible nor liable for any obligations (except for Customer’s obligation to make payment when due) arising out of, in connection with or relating to any matter occasioned by or due to fire, flood, water, the elements, acts of God, war and threat of imminent war, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond such Party's reasonable control.
Limitation of Liability: In no event shall COMPANY be liable for any indirect, incidental, consequential, exemplary, punitive, reliance or special damages, or for any loss of revenue, profits, use, data, goodwill or business opportunities of any kind or nature whatsoever, arising in any manner from the Services. Regardless of whether any claim is based in contract, tort, or other legal theory, COMPANY's liability under or in connection with the Services shall be limited to five thousand ($5,000) dollars if Customer's selected currency is US dollars, or five thousand euros (€5,000) if Customer's selected currency is euros. COMPANY shall not be liable for any damages, whether direct or indirect, caused by services or equipment that is not furnished or managed solely by COMPANY. The Parties acknowledge that the limitations on liability set out in this clause have been negotiated between the Parties and are regarded by the Parties as being reasonable in all circumstances.
No Warranty: Except as specifically set forth herein, COMPANY makes no warranty to Customer or any other person or entity, whether express or implied or statutory, as to the description, quality, merchantability, non-infringement, completeness or fitness for a particular use of any of the Services, all such warranties hereby being expressly excluded and disclaimed.
Fraudulent Calls and Artificially Inflated Traffic: Customer shall not dispute any charges or withhold payment on the basis that Fraudulent Calls or Artificially Inflated Traffic comprised a portion of the traffic volume. Customer shall be responsible for all charges associated with any Fraudulent Calls and Artificially Inflated Traffic. It is Customer's sole responsibility to take immediate action to block any Fraudulent Calls and Artificially Inflated Traffic. For purposes of this Agreement, "Fraudulent Calls" shall include, but not be limited to, deliberate exploitation of systemic errors in COMPANY's routing system. For purposes of this Agreement, "Artificially Inflated Traffic" means any activity which: (i) has the effect, intended effect or likely effect of preventing COMPANY's billing system from capturing any necessary billing information (in relation to the conveyance of a call); (ii) causes incorrect billing by COMPANY's billing system, or of an associated party; (iii) any situation where any person or entity is misled into making, receiving or prolonging calls; or(iv) is determined by COMPANY, in its sole and absolute discretion, to be bad faith usage of the Services. In the event Fraudulent Calls and/or Artificially Inflated Traffic causes COMPANY to be charged more by its terminating partners than the rate(s) quoted by COMPANY to Customer, then in addition to COMPANY's right to seek all remedies available to it at law or in equity, COMPANY reserves the right to re-rate all such traffic at the higher termination rate for the destination(s) in question and Customer agrees to pay all such re-rated charges.
Indemnity: Customer shall indemnify and hold harmless COMPANY and all of its officers, agents, directors, shareholders, subcontractors, subsidiaries, employees and affiliates from and against any claim, cost, damage, demand, liability, loss, penalty, proceeding and reasonable attorney's fees imposed upon COMPANY by reason of any claims or damages arising out of or related to: (i) Customer's own customers, end users or subscribers use of the Services; (ii) any fraudulent use of the Services, including but not limited to Fraudulent Calls and Artificially Inflated Traffic; (iii) any other act or omission by the Customer, including without limitation breach of any material obligation herein; and (iv) Customer's or any of its affiliates violation of the Anti-Bribery clause below. Customer will not settle any claims, demands, suits, proceedings or actions without COMPANY's prior written consent, which consent shall not be unreasonably withheld or delayed.
Governing Law/Dispute Resolution: This Agreement and the relationship between the Parties hereto will be governed by the laws of Australia. All disputes arising out of or related to this Agreement that cannot be resolved between the Parties shall be adjudicated in a court of competent jurisdiction.
USA Termination: On a daily basis at least seventy percent (70%) of Customer's minutes sent to COMPANY for termination in the United States must terminate in combined RBOC locations, wireless, and GTE, as defined by the LERG (collectively "RBOC Locations"). COMPANY shall have the right to apply a $0.05 per minute surcharge to the number of minutes by which Customer's minutes terminating in United States locations other than RBOC Locations exceeds thirty (30%) percent. Customer shall not send to COMPANY any traffic for termination in Alaska or Hawaii or send premium services/900 or directory assistance unless specific rates for these locations are provided by COMPANY. Further, COMPANY may charge a $0.05 per minute surcharge on all intrastate traffic. Any call that cannot be determined to be interstate or intrastate may be charged as intrastate.
Short Duration Calls: If 10% or more of Customer's completed calls sent to COMPANY for termination (in any calendar day) constitute calls under twelve (12) seconds in length ("Short Duration Calls"), then COMPANY may charge each Short Duration Call during such day (including those Short Duration Calls under the 10% threshold) an additional $0.02 surcharge per call. Further, calculated on a daily basis, if average call duration for calls sent to COMPANY for termination falls below 1 minute, then COMPANY may append, at a later date and time, a surcharge of an additional $0.02 per minute (as applicable) on the aggregate minutes of all such daily traffic sent.
Miscellaneous: The Parties hereby acknowledge that during the course of the Parties relationship, either Party may acquire information regarding the other or its business activities, in oral or written form, of a confidential and proprietary nature (hereinafter "Confidential Information"). Each Party shall hold the Confidential Information in strict confidence and shall not reveal the Confidential Information, or any portion thereof to any third party, except pursuant to any judicial or governmental request, requirement subpoena or order. This confidentiality obligation shall survive expiration or termination of this Agreement for a period of one (1) year. Each Party agrees that, without the other Party's written consent, it will not use the name, trademarks, trade names, service marks or logos of the other Party or of any of its affiliated companies in any advertising, publicity, press releases or sales presentations. It is expressly understood that the Parties hereto are acting hereunder as independent contractors. The failure of either Party to give notice of default or to enforce compliance with any of the terms or conditions of this Agreement, the waiver of any term or condition of this Agreement, or the granting of an extension of time for performance, will not constitute a permanent waiver of any term or condition of this Agreement. No amendment by Customer of the provisions set forth herein shall be binding unless made in writing and signed by a duly authorized representative of COMPANY. COMPANY may assign this Agreement or any rights hereunder upon notice to Customer. Customer may not assign this Agreement or any rights hereunder without the prior written consent of COMPANY. In the event it is determined that any part or provision of this Agreement is invalid or unenforceable, such determination shall not affect the validity or enforceability of any other part or provision of this Agreement. Nothing in this Agreement will prevent COMPANY or Customer from entering into similar arrangements with, or otherwise providing Services to, any other person or entity. This Agreement sets forth the entire agreement and understanding of the Parties hereto related to the subject matter hereof.
Notices: Except as set forth herein, all notices and communications from COMPANY to Customer under this Agreement will be given via email to the email address(es) provided by Customer on the web portal. All formal notices and communications from Customer to COMPANY under this Agreement will be given in writing to COMPANY's address listed above, Attention: Atom Tel Legal Department.
Account Activation: Prepaid Customers understand and agree that a full activation (not a test account) of Customer's account is subject to COMPANY's receipt of Customer's initial prepayment and COMPANY's performance of certain background checks on Customer. Post-paid Customers understand and agree that a full activation (not a test account) of Customer's account is subject to full credit approval by COMPANY's finance department and COMPANY's performance of certain background checks on Customer. COMPANY reserves the right to suspend and/or terminate Services at any time in the event COMPANY determines, in its sole discretion, that it cannot verify Customer's background information.