MAINTENANCE AGREEMENT TERMS AND CONDITIONS

NEXGEN AUSTRALIA agrees to provide and the Customer agrees to accept maintenance service provided by NEXGEN AUSTRALIA for the equipment (“the Equipment”) described in the “Equipment Schedule” annexed hereto.

1. DEFINITIONS AND INTERPRETATION
1.1 Definitions: In this Agreement unless otherwise indicated by the context or subject matter the following terms have the following meanings:
a. Commencement Date” means the date of execution of the Agreement by NEXGEN AUSTRALIA as inserted in the Schedule;
b. “Equipment” means the equipment described in the Equipment Schedule;
c. “Maintenance Period” means the working day period during which maintenance service will be provided being between 8.30am and 5.00pm Monday to Friday inclusive but excluding Public Holidays observed at the Site where the Equipment is installed.
d. “Response Time” means the period of time elapsing between when a fault is logged with NEXGEN AUSTRALIA’s Customer Service Centre and the commencement of remote diagnosis or contact by our technical support staff to perform over the phone diagnostics or arrange the dispatch of a field technician, at the discretion of NEXGEN AUSTRALIA;
e. “Site” means the location of the Equipment as specified in the Schedule;
f. “Term” means the Term of this Agreement as specified in the Schedule.
g. Major Failure – The hardware is completely inoperative; all handsets cannot place or receive calls. This does not relate to a line or internet fault(s). It also excludes power outages.
h. Minor Failure – All other issues are defined as Minor Failures.

1.2 Interpretation:
a. In this agreement except to the extent that the context otherwise requires:
b. Words importing the singular include the plural and vice versa and words importing a gender include other genders;
c. Where a word or phrase is given a particular meaning, other parts of speech or grammatical forms of that word or phrase have corresponding meanings;
d. Paragraph headings are for reference purposes only and shall not affect the interpretation of this Agreement.

2. TERM OF AGREEMENT
a. This Agreement comes into effect on the receipt of the signed and accepted Maintenance Agreement, or once the equipment listed in the equipment schedule is installed.
b. The minimum term of this Agreement is 12 months. The minimum 12 months will commence after any promotional free periods have expired.
c. At the expiration of the term this Agreement will, unless written notice of termination is given by one party to the other, continue subject to the terms and conditions contained herein for further successive terms of monthly intervals until terminated by either party giving to the other, 30 days prior written notice of its intention and desire to terminate the Agreement.

3. MAINTENANCE SERVICE
3.1 Subject to, and in consideration for, payment of the maintenance charge specified in Clause 5 hereof, NEXGEN AUSTRALIA shall, during the Maintenance Period, perform the maintenance service outlined in clause 3.2.
3.2 NEXGEN AUSTRALIA will provide maintenance service only for the equipment listed in the Equipment Schedule. NEXGEN AUSTRALIA’s minimum maintenance service pursuant to this Agreement is as follows:
3.3 NEXGEN AUSTRALIA shall supply parts, materials and service necessary to maintain the Equipment according to its specifications;
3.4 NEXGEN AUSTRALIA shall dispatch service personnel to the Site to perform any necessary repairs to allow the Service personnel to arrive at the site within the Response Time, unless NEXGEN AUSTRALIA is able to perform the repairs by remote access.

4. NEXGEN AUSTRALIA’s maintenance service does not include the following items:
a. Services connected with relocation of the Equipment, the addition or removal of accessories, attachments and other devices;
b. Repair of any equipment not specified in the Schedule;
c. Repair or replacement of any battery backup associated with the Equipment;
d. Repair of any malfunction or damage whatsoever caused, in NEXGEN AUSTRALIA’s opinion, by incorrect operation or installation of the Equipment or from the Customer’s (or its servants or agents) misuse of the Equipment or failure to observe and operate the Equipment in accordance with the Manufacturers published written instructions, or by the customer’s failure to perform its obligations pursuant to Clause 6 hereof.
e. Repair of any malfunction or damage whatsoever caused to the Equipment by war, fire, flood or any Act of God.
f. Repair of any part which has become worn due to other than fair wear and tear.
g. Taking responsibility for lines or network terminations on the Equipment, as this is your network provider’s responsibility.
h. Internal cabling is not included as part of the maintenance agreement.
i. Recording/Call Accounting/Desktop software packages as well as servers.
j. Maintenance of your internal data network including routers, Internet connections, switches and patch panels/ leads.
k. Any form of headset/lifter, Tone ringer, Loudspeaker, Amplifier.
l. Travel and expenses where on-site support is required at a Site located more than 50km from our point-of-presence, which are payable by you as extra charges.

5. FEES:
5.1 In consideration for the maintenance service provided hereunder the Customer shall pay to NEXGEN AUSTRALIA the maintenance fee specified in the Schedule and as varied from time to time, in advance, on an annual/monthly basis as specified in the Schedule.
5.2 The customer agrees to pay NEXGEN AUSTRALIA the additional fees as specified in the Schedule and as varied from time to time, for any maintenance service provided by NEXGEN AUSTRALIA at the customer’s request outside the Maintenance Period.
5.3 On the Commencement Date the customer will be invoiced with the annual OR monthly fee – Monthly fees will be charged to your NEXGEN AUSTRALIA phone account.
5.4 All fees payable to NEXGEN AUSTRALIA by the Customer pursuant to this Agreement shall be paid within 14 days of the date of NEXGEN AUSTRALIA’s invoice. If the Customer defaults in payment by the due date, NEXGEN AUSTRALIA shall, in addition to any other right NEXGEN AUSTRALIA may have at law or in equity, have the right to suspend its obligations to provide maintenance service pursuant to this Agreement. NEXGEN AUSTRALIA will also be entitled to charge late payment fees up to $35 Plus GST.
5.5 The Customer acknowledges that NEXGEN AUSTRALIA shall be entitled to vary the fees for maintenance service by giving the Customer 30 days prior written notice of the proposed increase, which then the increase will apply from the next due date for payment of the annual or monthly charge.
5.6 NEXGEN AUSTRALIA will charge, and the Customer agrees to pay, travel and living expenses for maintenance service carried out on Equipment installed at a Site more than 50 kilometers from the nearest State Capital GPO or the nearest NEXGEN AUSTRALIA Customer Service Centre, in accordance with an accepted quote.
5.7 Any other costs, charges or fees payable to NEXGEN AUSTRALIA by the Consumer pursuant to this Agreement shall be invoiced by NEXGEN AUSTRALIA to the Customer and the Customer shall pay within 14 days of the date of the invoice.
5.8 The obligations of the Customer pursuant to this Clause 5 which arise prior to the date of termination shall remain in full force and effect after the termination of this Agreement and shall not be deemed to have been waived, merged or extinguished upon such termination.

6. CUSTOMER’S RESPONSIBILITIES
During the Agreement the Customer shall:
a. Allow NEXGEN AUSTRALIA, its servants and agents, full, free and safe access to the Equipment and all relevant documentation to permit NEXGEN AUSTRALIA to fulfil its obligations pursuant to this Agreement.
b. Immediately notify NEXGEN AUSTRALIA of any malfunction of the Equipment.
c. Operate the Equipment in the manner for which it is designed and maintain, to the best of its ability, the appropriate operational conditions as specified by the Manufacturer for the Equipment.
d. Provide adequate onsite facilities and assistance to enable NEXGEN AUSTRALIA to fulfil its obligations pursuant to this Agreement.
e. Not without prior written consent of NEXGEN AUSTRALIA allow any adjustments, modifications, alterations, repairs or servicing to the Equipment to be carried out by persons other than authorized NEXGEN AUSTRALIA personnel.
f. Not, without the prior written consent of NEXGEN AUSTRALIA, move, alter, modify, add to, detach from or attach to the Equipment any other items. The Customer acknowledges that if NEXGEN AUSTRALIA’s consent is given pursuant to this sub-clause, NEXGEN AUSTRALIA is entitled to revise the maintenance fee as a prerequisite of giving its consent.

7. TERMINATION
7.1 The customer may terminate this agreement with 30 days written notice. Termination fees will apply if the agreement is still within its minimum term. Termination fees are calculated as remaining months of the contract multiplied by the minimum monthly charge. E.g If there is 5 months remaining on the current agreement and the monthly charge is $80, then a termination fee of $80 x 5 = $400 Plus GST will be charged.
7.2 NEXGEN AUSTRALIA may terminate this Agreement at any time upon giving the Customer 30 days written notice.

8. CUSTOMERS WARRANTY
8.1 The Customer warrants that as at the Commencement Date the Equipment described in the Schedule is in good working condition and fully operational.

9. NEXGEN AUSTRALIAS WARRANTY
9.1 NEXGEN AUSTRALIA warrants that it will perform its obligations pursuant to this Agreement in a proper and workmanlike manner to a standard acceptable within the telecommunications industry.

10. LIABILITY OF NEXGEN AUSTRALIA
10.1 NEXGEN AUSTRALIA shall not be liable to the Customer for any loss, damage or expense suffered by the Customer or any failure or delay which is occasioned by any cause beyond NEXGEN AUSTRALIA’s reasonable control. Such causes include but not limited to a; wars, fires, floods, strikes, lock outs, delays in transport, breakdowns in machinery, restrictions or prohibitions by any Government or semi-Government authorities or embargos.
10.2 NEXGEN AUSTRALIA shall be liable for, and shall indemnify the Customer against any legal liability, loss, claim or proceeding in respect of direct physical injury or direct physical damage to persons or property to the extent that such injury or damage is due to the negligence of NEXGEN AUSTRALIA, its servants or agents
10.3 Except as expressly provided to the contrary in this Agreement, all terms, conditions, warranties, undertakings, inducement or representations whether express, implied, statutory or otherwise relating in any way to this Agreement are excluded. Without limiting the generality of the preceding sentence, NEXGEN AUSTRALIA shall not be under any liability to the Customer in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred, or which may arise directly or indirectly, in respect of the failure or omission on the part of NEXGEN AUSTRALIA to comply with its obligations under this Agreement.
10.4 Where any Act of Parliament implies in this Agreement any term, condition or warranty and such Act avoids or prohibits provisions in an agreement excluding or modifying the application of, or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this Agreement. However, the liability of NEXGEN AUSTRALIA for any breach of such term, condition or warranty shall be limited, at the option of NEXGEN AUSTRALIA to any one or more of the following: If the breach relates to goods supplied: a) The replacement of the goods; or b) The supply of equivalent goods; or c) Payment of the cost of replacing such goods; or d) Payment of the cost of acquiring equivalent goods; or e) The repair of the goods; or f) Payment of the cost of having the goods repaired. If the breach relates to services supplied: a) The supplying of such services again; or b) The payment of the cost of having such services supplied again.

11. ASSIGNMENT
11.1 The Customer shall not assign, transfer or otherwise dispose of its rights or obligations under this Agreement to any other person, firm or company other than with the prior written consent of NEXGEN AUSTRALIA.

12. WAIVER
12.1 Any failure by NEXGEN AUSTRALIA to require strict performance by the Customer or any waiver by NEXGEN AUSTRALIA of any provision herein shall not be construed as a consent or waiver of any other breach of the same or of any other provision.

13. SEVERABILITY
13.1 If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, but is capable of being read down, it shall be read down to the extent necessary to render it binding and enforceable. If it is not capable of being so read down then such word or words or if required, the whole provision shall thereupon be severed and the remainder of this Agreement shall otherwise remain in full force and effect.

14. ENTIRE AGREEMENT
14.1 This Agreement and the Schedule incorporated herein constitutes the whole of the Agreement and understanding between NEXGEN AUSTRALIA and the Customer. Any additions or modifications hereto shall be made in writing and shall only be effective if signed by the duly authorized signatories of the parties.

15. GOVERNING LAW
15.1 This Agreement is to be governed by, and construed in accordance with the laws of the State of NSW, QLD, VIC, WA, SA and NT.

16. Maintenance Coverage time frames:
Standard Business Maintenance 8:30am to 5:00pm, Monday to Friday excl. Public Holidays
Response time:
Major Failure: 2-4 business hours.
Minor Failure: 8-16 Business hours