Terms And Conditions of Agreement

FYI Telco Pty Ltd ABN 20144669554 will supply you with telecommunications services ("Services") other than that defined under "Part 6.127 of the Telecommunications (Consumer Protection and Services Standards) ACT 1999 on the terms and conditions set out below. Words not defined in these terms and conditions have the same meaning as in the Telecommunications Act 1997.

1. OUR AGREEMENT WITH YOU

1.1 As a customer of FYI TELCO these terms and conditions form the basis of our agreement with you and you unreservedly warrant to be bound by these terms and conditions.
1.2 Our agreement with you also includes:
(a)to supply you with telecommunications services ("Services") by us in accordance with the terms contained herein.
(b)Your application or order form, which you complete and provide to us. We may accept and rely on facsimile copy or PDF copy or image copy of the application or order form as if it was an original. You will be bound by a facsimile or PDF copy or image copy of the application or order form as if it was an original.
1.3 Our agreement with you also includes our currently applicable price list or rates as agreed in writing. The price list may change with fourteen days notice as published at www.fyitelco.com.au/rates.html.
1.4 Your instructions to us are to be in writing by email. No verbal instructions to us will be enforcable by you or acted upon by us.

2. SERVICE DESCRIPTION

2.1 Services will be supplied to you through the carriers or networks ("Carriers") that we nominate from time to time. You agree that we -
(a) may change Carriers without reference to you at any time; and
(b) have your express authorisation to notify any relevant Carrier in respect of and to effect any such change.
2.2 We do not warrant that we will be able to supply Services and we are not liable for any failure to provide all or part of any of the Services, but, to the extent and to the standard that Carriers provide Services to us, those Services will be provided by us to you. When your connection is disrupted, we will do our best to reinstate our Services to you as soon as practicable.
2.3 We do not supply services other than those services published on our website.
2.4 When using the Services, you agree to -
(a) comply with all statutes, regulations, by-laws or licence conditions of any government body; and
(b) not breach any person's rights or otherwise cause us or a Carrier loss, liability or expense.
2.5 Our obligations to provide the Services ceases when we transfer your Services to another supplier and the other supplier takes over full billing of those services.

3. CHARGES AND PAYMENT

3.1 You agree during the term of this agreement:
(a) to be charged for the Services we provide to you, regardless of whether it is you who uses them, at our current prices from time to time as published on our website at www.fyitelco.com.au/rates.html;
(b) that as our charges are exclusive of any taxes, government charges, INMS charges and bank charges and you agree that we are to pass on to you the full amount of any such taxes, government charges, INMS charges and bank charges payable in addition to our on our charges; and
(c)to pay accounts for all of those charges (including taxes and bank fees) by the due date specified in the account invoice ("Due Date") or upon demand to your nominated bank account or credit card account. You agree to maintain a direct debit authority with us at all times in order to continue receiving discounted rates. You agree that your service/s with us will be immediately cancelled and all fees and charges will become immediately payable if you withdraw the direct debit authority.
(d) Monthly services fees are charged monthly in advance and not on a pro-rata basis.
(e) Your account limit is one hundred dollars in any 30 day period. Upon your call charges exceeding the account limit, you give us the right to apply a progress payment of the current amount owed (including unbilled charges) and you authorise us to manually debit that amount from your nominated bank or credit card.
(f) You agree to access invoices through our Secure Online Accounts Portal and agree not to disclose your password to any other party. You agree to download and print out your invoice in the first week of each month.
(g) If you have more then one account, you agree we can mesh all accounts and transfer outstanding fees and charges from any of your accounts to any other of your accounts.
3.2 If you dispute in good faith an amount in the account invoice, you must notify us in writing within fourteen days setting out reasons for the dispute and the amount in dispute. Notwithstanding any dispute as to any amount of any charge, you must pay the whole amount of each account by the Due Date. You will be in breach of this agrement if you fail to pay the whole amount of each account by the Due Date.
3.3 If you do not pay the account by the Due Date or upon demand to your nominated bank account or credit card, then we may charge interest at the rate of 1.5% per month or part thereof on the outstanding amount of the invoice and suspend all or part of your Services pending payment of outstanding amounts on the account. Nothing in this clause affects our rights to terminate this agreement under clause 8.
3.4 If you do not pay the account invoice by the Due Date, we also reserve the right (at our discretion) to rescind the discount prices you pay for the Services and to set your rates to the currently published Standard Rates plan at www.fyitelco.com.au/rates.html from the first day of the current billing month regardless of any fixed price offer noted in clause 1.3.
3.5 If you direct us, or authorise another carrier to transfer any of the Services to another supplier or you cancel services, you will pay in full -
(a) all of our account invoices and unbilled charges up until the time we stop providing the Services and before we will release the number in question; and
(b) all other proper charges that we become aware of after the date of transfer that relate to the Services we provided to you.
3.6 Where a 1300/1800 monthly service fee is offered, it is conditional upon the service remaining active and payment of our charges made by the Due Date or upon demand to your nominated bank account or credit card with a minimum monthly spend of five dollars per service number. The StartUp Plan is not eligible for new customers, is available only for one 1300 or 1800 number service. Customers may upgrade or downgrade any plan except down to the StartUp plan and at any time in writing and without a cost to do so. Where an existing customer on the StartUp Plan adds additional 1300 and/or 1800 numbers, the customer agrees to upgrade to plan FYI-20 upon application of each additional 1300 and/or 1800 number. StartUp plan only available for 6 months then rolls ovewr to FYI-20. Unless otherwise agreed in writing, additional charges apply for routing, baring and other non-standard services with all plans. Where capped calls and capped rates are offered, we reserve the right to discontinue capped calls and capped rates at any time without notice. Where a cancelled service requires reconnection, a charge of one hundred dollars applies for each service number. Where a suspended telephone number service requires reconnection, a charge of twenty dollars applies for each service number.
3.7 Where payment by direct debit or by credit card is dishonoured by your financial institution, we have the right to charge a dishonour fee of twenty five dollars for the first dishonour and twenty five dollars thereafter. Upon notification of the first dishonour your service charges will be set in accordance with our Standard Rates and you agree to pay us a security bond in accordance with 5(e). Upon payment of a security bond, your rate will be set to the rate prior to your dishonour notice commencing the first day of the next billing month.
3.8 You agree and instruct that services shall not be cancelled by any means unless you first us the completed "Cancel Service/s Application Form". Further, where your invoices are dishonoured in two consecutive months or where your invoices are dishonoured three or more times, you agree and instruct FYI Telco to immediately cancel all services.
3.9 Call rates charged in one second increments with a one minute minimum call charge. The cost of each individual call is rounded up to the next cent.
3.10. Where a service provider (SP) becomes a customer of FYI Telco, that SP shall pay Standard Rates as published at www.fyitelco.com.au/rates.html.
3.11 If the customer fails to pay for any services rendered by FYI Telco the customer and/or business will be in default which may affect the credit rating for the next 5 years. FYI Telco may apply a debt collection fee of 25% of the debt or fifty dollars whichever is the highest and will be made payable by the customer for debt collection administration costs. The customer will be liable for any solicitor and/or professional debt collection agency fees.
3.12. Higher charges apply for OffNet customers.
3.13 Set-up time quoted is on a best effort basis. It is the customer's responsibility to monitor it's account and request a plan upgrade. Failure of FYI Telco to notify a customer to upgrade will not breach the customer's responsibility under these terms.
3.14 I acknowledge that some callers may mis-dial my service number(s) and I agree to pay the call charge (if any) for any and all mis-dialled calls to my services. I agree FYI Telco is not liable for residual calls received by a terminating number connected with my service due to a service previously activated and cancelled by another entity. I agree that where I choose to change a service number due to perceived residual calls due to a number used on a service of a previous entity I am liable for all cancellation fees (if applicable) and connect fees (if applicable) and I agree FYI Telco is not liable for any costs incurred by me including costs for promotional material that may contain the relevant service number(s).
3.15 You warrant to test all services prior to publishing the service number. Where a service has been suspended or cancelled and subsequently reactivated, you warrant to test all such services prior to publishing the service number. Any other requested changes must be tested by you within 24 hours of such request. Any request for a change in service must be made no more than one business day prior to such change.
3.16 You expressly agree not to publish Fax2email, Voice2email and Live Answer service indial landing numbers.
3.17 Five dollar fee applies on a 'user pays' system for each change to customer account details or services including but not limited to manual payment by direct deposit, cheque payment, answer point change, fax2email change, voice to email change, live answer change, file transfer etc.
3.18 Standard Rates for Inbound service answered internationally charged at a factor of ten above wholesale.
3.19 Fair Use Policy: To ensure 1300 and 1800 numbers are not seen to be "banked" by you, that is your 1300 and 1800 number is connected but not in regular use, you agree to make "Fair Use" of your inbound 1300 and/or 1800 service by tolling at least five dollars per month in call charges. You agree to pay a minimum spend of five dollars per month if your inbound service/s tolls less than five dollars per month in call charges.
3.20 Unused calls during any calendar month will not be credited to the following month. Unless otherwise agreed in writing, a one thousand dollar minimum spend shall apply to the Corporate plan.

4. AMENDMENTS TO TERMS AND CONDITIONS

Without limiting clause 3.1, we may vary, alter, replace or revoke any of these terms and conditions and we may interpret your ongoing use of the Services as constituting your acceptance of the variation, alteration, replacement or revocation.

5. CREDIT CHECK

FYI Telco is not an organisation as defined under PART II, 6C of the Privacy Act. However, prior to our accepting your application, you have provided to us all information relevant to our assessment of your credit rating for COMMERCIAL CREDIT. We do not offer you CONSUMER CREDIT. You have consented to the following:
(a) our obtaining from a credit reporting agency a credit report containing personal information about you;
(b) our giving to and seeking from any credit provider named in a credit report or in your application, information in relation to your credit rating including without limitation any information about your credit worthiness, credit history or credit capacity that credit providers are allowed to give or receive from other credit providers under the Privacy Act 1988;
(c) our making independent enquiries of third parties concerning your financial standing and for this purpose you have authorised and permitted such third parties to supply such information regardless of any confidentiality or privilege which applies to the information sought; and
(d) our providing any information we obtain about you to the relevant Carrier.
(e) where your previous credit history indicates a credit risk or where any invoice has been dishonoured, we may require a security bond of good faith equal to fifty dollars or the total of the current month's invoice and the previous two month's invoices, which ever is the greatest. In the event of your account is close, this security bond of good faith will be deducted from your final invoice.
5.1 COMMERCIAL CREDIT AUTHORITY
1. Agreement that you are applying exclusively for COMMERCIAL CREDIT with FYI Telco and FYI Telco may seek consumer credit information (Section 18K(1)(b), Privacy Act 1988). If FYI Telco considers it relevant to assessing my/our application for commercial credit, I/we agree to FYI Telco obtaining from a credit reporting agency a credit report containing personal credit information about me/us in relation to commercial credit provided by FYI Telco.
2. Exchanging information with other credit providers (Section 18N(1)(b), Privacy Act 1988) I/we agree to FYI Telco obtaining personal information about me/us from other credit providers, whose names I/we may have provided for FYI Telco or that may be named in a credit report, for the purpose of assessing my/our application for commercial credit made to FYI Telco.
3. Agreement to a credit provider being given a consumer credit report to collect overdue payments on commercial credit (Section 18K 1(h) Privacy Act 1988) I/we agree that FYI Telco may obtain a consumer credit report about me/us from a credit reporting agency for the purpose of collecting overdue payments relating to commercial credit owed by me/us.
5.2 CONSUMER CREDIT AUTHORITY
You agree your application is NOT an application for CONSUMER CREDIT but we advise an important Notice To Applicant(s) For Credit (Section 18(E)(1) Privacy Act 1988)as part of your application for COMMERCIAL CREDIT. Notice of disclosure of your credit information to a credit reporting agency. (Privacy Act 1988). FYI Telco may give information about you to a credit reporting agency, for the following purposes:
(a) to obtain a consumer credit report about you, and/or
(b) to allow the credit reporting agency to create or maintain a credit information file containing information about you. The information is limited to:
(c) identity particulars - your name, sex, address (and the previous two addresses) date of birth, name of employer, and drivers licence number.
(d) your application for credit or commercial credit - the fact that you have applied for credit and the amount.
(e) the fact that FYI Telco is a current credit provider to you.
(f) loan repayments which are overdue by more than 60 days, and for which debt collection action has started.
(g) advice that your loan repayments are no longer overdue in respect of any default that has been listed.
(h) information that, in the opinion of FYI Telco you have committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with your credit obligations).
(i) dishonoured cheques - cheques drawn by you for $100 or more which have been dishonoured more than once.
(j) that credit provided to you by FYI Telco has been paid or otherwise discharged.
Period to which this understanding applies: This information may be given before, during or after the provision of credit to you. Statement By Applicant(s) For Credit:
Please read carefully before signing the application form. Where there is more than one applicant, each applicant must sign.
5.2.1. Giving information to a Credit Reporting Agency (Section 18E(8)(c) Privacy Act 1988) FYI Telco has informed me that it may give certain personal information about me to a credit reporting agency.
5.2.2. Access to Commercial Credit Information (Section 18L(4) Privacy Act 1988) I/we agree that FYI Telco may obtain information about me/us from a business which provides information about the commercial credit worthiness of persons for the purpose of assessing my/our application for consumer credit.
5.2.3. Access to Consumer Credit Information (Section 18K(1)(b), Privacy Act 1988) I/we agree that FYI Telco may obtain a consumer credit report containing information about me from a credit reporting agency for the purpose of assessing my/our application for commercial credit.
5.2.4. Exchange of Credit Worthiness Information (Section 18N, Privacy Act 1988) I/we agree that FYI Telco may exchange information with those credit providers named in this application or named in a consumer credit report issued by a credit reporting agency for the following purposes;
(a) to assess an application by me/us for credit
(b) to notify other credit providers of a default by me/us
(c) to exchange information with other credit providers as to the status of this loan where I am in default with other credit providers
(d) to assess my/our credit worthiness.
I /we understand that the information exchanged can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.
5.3 Agreement to a credit provider being given a consumer credit report by a credit reporting agency to assess a guarantor (Section 18K 1(c) Privacy Act 1988)
I/we agree the FYI Telco may obtain from a credit reporting agency a consumer credit report containing information about me/us for the purpose of assessing whether to accept me/us as a guarantor for credit applied for by, or provided to, the borrower(s) FYI Telco. I/we agree that this agreement commences from the date of this agreement and continues until the credit covered by the borrower(s) application ceases.
5.4 Agreement to a credit provider disclosing a report including a consumer credit report to potential or existing guarantor (Section 18K (1) Privacy Act 1988)
I/we agree that FYI Telco may give to a person who is currently a guarantor, or whom I/we indicated is considering becoming a guarantor, a credit report containing information about me/us for the purpose of FYI Telco deciding whether to act as a guarantor, or to keep existing guarantor informed about the guarantee. I/we understand that the information disclosed can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to disclose under the Privacy Act, and includes a credit report.

6. TRANSFER OF SERVICES

6.1 When you transfer any services ("Transferred Services") from a Carrier, a telecommunications service provider or equipment supplier who supplies telecommunications services or equipment to you at the time of signing this agreement ("Current Supplier") to us, you authorise us to sign on your behalf and in your name any forms required by the Current Supplier to transfer the Transferred Services as we direct. Where such a transfer takes place and we refer to you previous Carrier's monthly invoice, it refers to the most recent whole monthly invoice.
6.2 You agree to immediately pay to the Current Supplier any amounts owing for the Transferred Services up to the date of the transfer.
6.3 When you transfer any current services ("Current Supplier") from us to a Carrier, a telecommunications service provider or equipment supplier who supplies telecommunications services or equipment ("Transferred Services") we have at our discretion to charge a release fee of fifty dollars for such transfer if your account is overdue and remains unpaid at the time of the transfer. Call rates for the billing month of your transfer notice and billing months following shall be rated at Premium Rates.
6.4 When you transfer an ACMA smartnumnber, you agree give us at least 60 days notice prior to the expiration of the smartnumber with ACMA.

7. LIMIT ON LIABILITY

7.1 We do not exclude or limit -
(a) the application of any provision of any statute (including the Trade Practices Act 1974, the Privacy Act 1988 or the Telecommunications Act 1997) where to do so would contravene that statute or cause any part of this clause 7 to be void; or
(b) direct losses and damages which arise only as a result of our gross negligence (which means where we commit an act or allow an omission to occur in reckless disregard of the consequences of the act or omission).
7.2 Except where clause 7.1 applies, we exclude all statutory liability, tortious liability (including but not limited to liability in negligence), conditions and warranties implied by custom, the general law or statute, liability for all direct, economic, consequential or indirect losses, expenses, damages and costs incurred by you, arising out of or relating to the Services, any failure to supply or delay in supplying the Services or out of or relating to this agreement.
7.3 Including, but not limited to, liability for gross negligence and except to the extent of clause 7.1(a), we are not responsible or liable for any indirect consequential or economic damages, including, without limitation, loss of income or profit or loss of actual potential business opportunities.
7.4 Our liability to you for any breach of any implied provision of this agreement (other than an implied warranty of title) is limited, at our option, to refunding the price of the goods or Services in respect of which the breach occurred, or to providing, replacing or repairing those goods or providing those Services again.
7.5 We are not liable to you for any delay in the connection or failure in the operation of the Services.
7.6 You acknowledge that any liability of any Carrier to you in relation to the Services is governed by the terms and conditions on which that Carrier from time to time supplies that service to its own retail customers.

8. TERM OF AGREEMENT

8.1 This agreement will commence on the date of its signing by us or the date you are notified with your customer account number and password or the date otherwise notified which ever is the earliest.
8.2 You may cancel this agreement at any time with one calendar month's written notice on our approved form to us .
8.3 Unless otherwise noted in a written binding contract and subject to earlier termination, this agreement will automatically terminate at the end of 3 month's period. Upon termination at the end of the 3 month period, your continued use of our services will therfore automatically renew our agreement on the current terms, fees and charges as published at www.fyitelco.com.au/rates.html. If not less than one calendar month prior to the expiry date of any such period, either party gives the other a notice of non-renewal of this agreement, the agreement shall expire at the end of the then current 3 month period. If we give notice of termination, you agree to pay all fees and charges under clause 3.
8.4 We may immediately terminate this agreement without notice at any time if, without our prior written consent: you fail to pay an invoice by the due date or breach any term or condition of this agreement; a receiver or receiver and manager is appointed over any of your property or assets; a liquidator or provisional liquidator is appointed to you; you become bankrupt; you enter into any arrangements with your creditors; you assign or otherwise deal with your rights under this agreement; you cease to carry on business; there is a material change in your direct or indirect ownership or control, or you slander or defame us. Other than defasult by you, we may give you seven days notice to terminate this agreement.
8.4 We may immediately terminate this agreement without notice at any time if you engage in abusive behaviour toward any FYI Telco management or employee as determined by FYI Telco.
8.5 We may also immediately terminate this agreement at any time without notice if the Carriers cease to provide necessary services to us.
8.6 If we terminate this agreement in accordance with this clause and a Carrier arranges to supply you services other than through us, you acknowledge that -
(a) the Carrier may not be able to make those arrangements immediately; and
(b) once the Carrier has made arrangements, the services acquired by you from the Carrier will be acquired on the Carrier's then current tariffs and terms and conditions and the Carrier will bill you accordingly.

9. INFORMATION

9.1 Without limiting clause 5.1, you agree to provide us with any information we request in connection with our providing the Services to you under this agreement.
9.2 You authorise and consent to the following:
(a) our conducting a physical audit of the Services and any equipment supplied in respect of the Services should we consider it necessary;
(b) our exchanging with Carriers all information about you and the Services provided to you in our possession or control including, but not limited to, your name, billing address, street address, relevant telephone numbers, any information obtained by us for the purpose of your application and this agreement;
(c) the Carrier exchanging with us any information in the Carrier's possession or under its control in relation to the Services including, without limitation, all your records and, in particular, exchange line details, account information, call charge records and call event records; and
(d) ours and the Carrier's use of the information referred to in paragraphs (b) and (c) of this clause.

10. CONFIDENTIALITY

You will keep confidential all information supplied by us or the Carriers and we will keep confidential all information supplied by you, except as provided by clauses 5 and 9.

11. ASSIGNMENT

Your rights under this agreement are personal. You must not assign or attempt to assign any right or obligation under this agreement without our written consent. We may assign all or any of our rights and obligations under this agreement at any time by notifying you in writing.

12. WARRANTY OF AUTHORITY

Any persons signing this agreement on your behalf warrant that they have full power and authority to bind you in respect of this agreement.

13. OUR EQUIPMENT

13.1 Risk in any equipment (if any) provided by us or any third party to you for purchase or hire ("Equipment") passes to you upon delivery. You will accept any Equipment on the basis of these Terms and Conditions and any additional terms and conditions notified at the time of delivery.
13.2 Title to any Equipment provided for purchase does not pass to you until all amounts owing to us under this agreement and the cost of such Equipment have been paid in full. Until title passes to you, the Equipment will be held by you as bailee for us.
13.3 If Equipment is installed at premises occupied by you, you must not interfere with the Equipment or its installation.
13.4 You irrevocably grant to us, our agents and servants, leave and licence without the necessity of giving any notice to enter at any time on and into premises occupied by you using reasonable force if necessary to inspect, search for and re-take possession of any Equipment in respect to which payment is overdue. You shall indemnify us and hold us harmless against any loss or damage suffered by any person or company arising from such possession.
13.5 On the termination of this agreement for any reason, you will immediately return all Equipment owned by us or make it available for our collection.

14. OTHER EQUIPMENT

14.1 Where you have PABX or other network equipment, you must ensure that it is programmed as we specify.
14.2 Where you have equipment on premises you occupy which is used by another supplier to provide you with services, we will disconnect that equipment when you transfer the services to us and we connect our Equipment (if any). You must immediately notify that supplier that you have transferred your services to us and arrange for them to remove their equipment from the premises.

15. "FORCE MAJEURE"

15.1 Force Majeure means any circumstance beyond the control of FYI Telco whereby FYI Telco is unable to perform an obligation under this agreement with you either at all or at any time or from time to time including:
(a) Service network failure caused by, but not limited to, any third party action that results in the Carriers or service network ceasing to continuously function;
(b) Any act of God or act of nature;
(c) Any interruption, suspension or cancellation of any or all telecommunications or Carrier's services;
(d) Any act, omission or negligence by a third party or service provider which affects the provision of any service;
(e) Any requirement, restriction, delay, consent, licensing, approval or any other matter of a Federal, State or Local governmental authority or any regulation, law, restriction, action or otherwise of any Federal, State or Local governmental agency.

16. MISCELLANEOUS

16.1 This agreement to read in conjunction with Terms of Use
16.2 Any notice, demand, consent or other communication required to be given to either party must be delivered to the email address of the other as last notified or failing that, personally or sent by prepaid mail or by facsimile to the address of the other as last notified.
16.3 Clauses 2.5, 3.5, 5, 7, 10, 12, 13.4, 13.5, 14 and 15 shall survive the expiration or termination of this agreement.
16.4 This agreement shall be governed by and construed in accordance with the laws of Queensland and the parties hereby submit to the non-exclusive jurisdiction of the courts of the State of Queensland.
16.5 This agreement contains yours and our entire understanding to the exclusion of any and all prior or collateral agreement or understanding relating to the Services, whether oral or written.
16.6 If any part of this agreement is found to be invalid or of no force or effect, this agreement shall be construed as though such part had not been inserted and the remainder of this agreement shall retain its full force and effect.
16.7 All prices quoted EX GST for new and existing customers. Last updated 01/04/10