Terms and Conditions

GENERAL TERMS AND CONDITIONS

1. SCOPE AND TERM

Scope

1.1 These terms and conditions govern Customer’s use of the Services. The Services are provided by ipSCAPE Pty Ltd ABN 80 115 398 448 (“ipSCAPE”).

1.2 In consideration for the Customer paying to ipSCAPE the relevant Charge, ipSCAPE will supply the Services to and selected by the Customer on the terms of this Agreement, including the Service Agreement and relevant Services Schedule.

Term

1.3 This Agreement will commence on the Commencement Date and will continue until the expiry of the Term, unless terminated earlier in accordance with this Agreement.

Renewal

1.4 This Agreement renews automatically after the Term for additional periods of 1 month unless either party provides the other party with at least 90 days’ notice prior to the expiry of the Term or 1 months’ notice during the automatic renewal period that it does not wish to renew this Agreement.

2. SERVICES

2.1 Any order made by Customer for the Services shall bind ipSCAPE only when ipSCAPE has accepted the order by sending a countersigned version of the Services Agreement to Customer.

2.2 ipSCAPE reserves the right to make any changes to the Services at any time. If the change has a material effect on the contents of the Service, ipSCAPE shall inform the Customer about the change well in advance before the effective date of the change and the Customer shall have the right to terminate the Agreement in accordance clause 7.2(a).

3. PREREQUISITES TO THE SUPPLY OF THE SERVICES

3.1 Before ipSCAPE supplies the Services, the Customer must:

(a) supply its own System that complies with Minimum Operating Specifications, including:

(i) arranging for an internet connection to be available to each person who will be using SaaS and Voice Services;

(ii) arranging for all necessary facilities and equipment to be supplied by third party suppliers, except to the extent such facilities and equipment are to be supplied under this Agreement;

(iii) establishing and configuring all network facilities and equipment, and installing and configuring all operating equipment and software, except to the extent such tasks are to be performed by ipSCAPE as part of the Implementation Services; and

(b) do such other things as ipSCAPE reasonably requires in order for it to supply the Services.

3.2 The Customer acknowledges that it is solely responsible for doing the things required by clause 3.1 and related costs, including the costs payable to third party suppliers of internet services or other facilities unless specifically set out in the Services Agreement

3.3 The Customer acknowledges that:

(a) ipSCAPE may update the Minimum Operating Specifications from time to time in order to keep the Services up to date with market standards and applicable security requirements; and

(b) use by the Customer of a System that is not compliant with the latest version of the Minimum Operating Specifications may expose the Customer to security vulnerabilities or compatibility or operability issues.

3.4 ipSCAPE will provide the Customer with reasonable notice prior to any change of its Minimum Operating Specifications.

3.5 The Customer acknowledges that if it does not meet any requirement specified in clause 3.1, or if during the Term any of those requirements cease to be met:

(a) ipSCAPE may be unable to supply some or all of the Services, or may need to delay the supply of some or all Services;

(b) ipSCAPE will have no liability to the Customer arising from any inability to supply any Services; and

3.6 The Customer acknowledges that in order for ipSCAPE to properly supply the Services, the Customer must provide ipSCAPE with access (including remote and on-site access) to the Customer’s premises and equipment as ipSCAPE reasonably requires from time to time. Subject to clause 3.7, ipSCAPE must comply with all reasonable security policies of the Customer that ipSCAPE is notified of when accessing the Customer’s premises and equipment, provided such policies are not inconsistent with this Agreement.

3.7 The Customer acknowledges that ipSCAPE will have no liability for any failure to supply Services to the extent such failure is caused or contributed to by ipSCAPE’s compliance with any policies referred to in clause 3.6.

4. SERVICE LEVEL TARGETS

4.1 Subject to clause 4.2, ipSCAPE will make reasonable efforts to attain any applicable Service Level Targets.

4.2 The Customer acknowledges that ipSCAPE will not have failed to reach a Service Level Target if ipSCAPE is delayed in meeting any timeframe or other requirement under this Agreement to the extent caused by:

(a) an act or omission of the Customer or any third party acting under the direction of the Customer (including Customer’s subcontractors); or

(b) any Scheduled Interruption or Emergency Interruption affecting the Services to which the relevant Service Level Target relates.

4.3 ipSCAPE will not breach this Agreement solely because it fails to achieve a Service Level Target.

4.4 Without limiting clause 4.2, the Customer acknowledges that ipSCAPE will have no responsibility or liability under the Agreement, including in under any Services Schedule or Service Agreement, to the Customer to the extent that the supply of any Services is prevented, disrupted or otherwise affected by any software or hardware installed or configured by the Customer or any other person prior to the commencement of the Services or at any time after the start of the Services without the express approval of ipSCAPE.

4.5 The Customer acknowledges that if, pursuant to any Services Schedule, any Service Credit is granted to the Customer by ipSCAPE in connection with any failure to achieve a Service Level Target, that Service Credit is the Customer’s sole and exclusive remedy in respect of the failure to achieve the Service Level Target in respect of which the Service Credit is granted, and the Customer will have no further right or claim against ipSCAPE or any third party supplier of the Service in connection with such failure.

5. PAYMENT

5.1 The Customer will pay the Charges to ipSCAPE in the manner set out in the Services Agreement.

5.2 If the Services Agreement does not set out the manner in which the Customer must pay a Charge, the Customer will pay the amount of any invoices issued from ipSCAPE (including any applicable GST) within seven (7) days from the date of invoice.

5.3 The Charges are exclusive of taxes, duties and charges imposed or levied in Australia or overseas. Without limiting the above, the Customer will be liable for any new taxes, duties or charges imposed subsequent to the Commencement Date in respect of the Services that are subject to this Agreement.

5.4 On each anniversary of the Commencement Date, the Charges will increase by 5% or in line with the most recent annual change in the All Groups CPI (Sydney) published by the Australian Bureau of Statistics (whichever is higher).

5.5 Interest will accrue on any late payments payable pursuant to this Agreement remaining unpaid at the due date for payment at a rate of the Reserve Bank of Australia 90 day bank bill rate plus 3% (or lesser amount if prohibited). Interest will accrue daily from the due date until paid in full.

6. WARRANTIES

6.1 ipSCAPE undertakes, warrants and represents that:

(a) the Services will be performed in a professional and workmanlike manner; and

(b) it has the authority to enter into and fully perform its obligations under this Agreement.

6.2 The Customer warrants that:

(a) it will be competent to fulfil its obligations under this Agreement;

(b) it has the authority to enter into and fully perform its obligations under this Agreement; and

(c) the Customer has obtained and will maintain the necessary permissions and clearances in connection with the Services.

6.3 The Customer acknowledges that the Services which ipSCAPE provides may involve the use of telecommunications and computer systems outside of ipSCAPE’s direct control and that no warranty or assurance may be given of their continuous availability and ipSCAPE is not liable for any loss arising out of such failure, to the extent permitted by law.

6.4 Subject to clause 6.5, the Customer warrants that it has not relied on any representation made by ipSCAPE that has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by ipSCAPE.

6.5 The Customer acknowledges that to the extent ipSCAPE has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.

7. TERMINATION

Termination Rights

7.1 ipSCAPE may terminate this Agreement immediately by notice in writing if

(a) the Customer is in breach of any term of this Agreement and such breach is not remedied within thirty (30) days of it being notified by ipSCAPE;

(b) there is a change of control of Customer, for which purposes “control” means the ability to direct the affairs of Customer whether by virtue of contract, ownership of shares or otherwise howsoever;

(c) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

(d) the Customer, being a natural person, dies; or

(e) the Customer ceases or threatens to cease conducting its business in the normal manner.

7.2 The Customer may terminate this Agreement:

(a) On thirty (30) days’ notice in writing if there is a material change to the Services as described in clause 2.2; or

(b) immediately by notice in writing if:

(i) ipSCAPE is in breach of any term of this Agreement and such breach is not remedied within thirty (30) days of it being notified by the Customer;

(ii) ipSCAPE becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or

(iii) ipSCAPE ceases conducting its business in the normal manner.

7.3 If notice is given to the Customer pursuant to 7.1, ipSCAPE may, in addition to terminating the Agreement:

(a) retain any moneys paid;

(b) charge a reasonable sum for work performed in respect of which work no sum has been previously charged;

(d) pursue any additional or alternative remedies provided by law.

Customer Obligations

7.4 Upon termination of this Agreement, the Customer will provide all reasonable assistance that ipSCAPE considers necessary to enable the transfer of ipSCAPE’s property and all related data, documentation and records to ipSCAPE or a third party nominated by ipSCAPE, at no additional charge.

ipSCAPE Obligations

7.5 Upon termination of this Agreement, ipSCAPE will:

(a) on request provide the Customer with a copy of any raw Customer Data ipSCAPE may have, subject to payment of an Additional Charge; and

(b) otherwise permanently destroy any Customer Data ipSCAPE may have in connection with the Services, within 8 weeks of the date of termination.

8. AUDIT

8.1 The Customer will, upon reasonable notice and at ipSCAPE’s expense, permit ipSCAPE’s officers and employees access to the Sites, books, records, documents, Equipment, systems and other property relevant to the performance of this Agreement. Such access includes access for the purpose of liaison, reporting and inspection and for verification of compliance by the Customer with its obligations under this Agreement and its likely capacity to continue to comply with its obligations. Without limiting the above, such audits may include:

(a) security and administration practices and facilities; and

(b) any other material relevant to determining the past and future effectiveness and viability of this Agreement and the discharge by the Customer of its obligations under this Agreement.

9. CONFIDENTIALITY

9.1 A party will not, without the prior written approval of the other party, disclose the other party’s Confidential Information.

9.2 The parties must keep the Confidential Information secure and protect the Confidential Information from unauthorised use.

9.3 A party will not be in breach of this clause 9 to the extent it is legally compelled to disclose the other party’s Confidential Information and has used reasonable endeavours to give the other party the opportunity to oppose the release of such Confidential Information.

9.4 The Customer will, if requested by ipSCAPE, immediately:

(a) cease using ipSCAPE’s Confidential Information; or

(b) return to ipSCAPE, or destroy all original documents containing any ipSCAPE Confidential Information and any copies of those documents.

9.5 Notwithstanding any other provision of this clause, either party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its associates, related companies, solicitors, auditors, insurers or accountants, and will ensure that every person to whom that disclosure is made uses that information solely for the purposes of advising or reporting to ipSCAPE.

10. INTELLECTUAL PROPERTY INDEMNITY ipSCAPE Indemnity

10.1 Subject to clauses 10.2 and 10.3, ipSCAPE will indemnify the Customer against liability under any final judgment in proceedings brought by a third party against the Customer that determines that the Customer’s use of the Services or Equipment (the “Items”) constitutes an infringement of the third party’s Intellectual Property Rights (but excluding patents) in Australia.

Indemnity Exclusions

10.2 The Customer is not indemnified, and ipSCAPE’s liability under clause 10.1 is reduced, to the extent the Customer does not:

(a) notify ipSCAPE in writing as soon as practicable of any infringement, suspected infringement or alleged infringement;

(b) give ipSCAPE the option to conduct the defence of such a claim;

(d) permit ipSCAPE to modify, alter or substitute the infringing part of the Items at its own expense, or to render the Items non-infringing; or

(e) authorise ipSCAPE to procure for the Customer the authority to continue the use or possession of the Items.

10.3 The Customer is not indemnified, and ipSCAPE’s liability under clause 10.1 is reduced to the extent the infringement, suspected infringement or alleged infringement arises from:

(a) use of the Items in combination with other goods not specifically approved by ipSCAPE

(b) use of the Items in a manner or for a purpose not authorised by ipSCAPE

(d) any transaction entered into by the Customer relating to the Items without ipSCAPE’s prior consent in writing; or

(e) any act or omission of the Customer that is a breach of this Agreement.

Customer Indemnity

10.4 The Customer will indemnify ipSCAPE against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging infringement if the claim arises from an event specified in clause 10.3.

10.5 The Customer will indemnify ipSCAPE against, and ipSCAPE will not be liable to the Customer for, any loss, costs, expenses, demands or liability, whether direct or indirect, suffered by the Customer as a result of the Customer’s misuse of, unauthorised access or unauthorised modifications to the API.

10.6 Nothing in this Agreement will be construed to grant the Customer any right or interest in any ipSCAPE trade mark, service mark, trade name or similar designation.

11. LIABILITY

Exclusions

11.1 To the extent permitted by law, in no event is ipSCAPE liable under or relating to this Agreement for any indirect, special, economic or consequential loss or damages or loss of revenue, profits, goodwill, bargain, opportunities, loss or corruption of data or loss of anticipated savings whether caused by negligence or otherwise and whether or not ipSCAPE was aware or should have been aware of the possibility of such loss or damage.

Limitation of Liability

11.2 Other than where clauses 11.8 or 11.9 apply and to the extent permitted by law, ipSCAPE’s maximum aggregate liability in contract, tort (including negligence or breach of statutory duty) or otherwise arising by reason of or in connection with this Agreement will be limited to the greater of $5,000 or 100% of the Charges paid to ipSCAPE in the twelve (12) months preceding the first event that gives rise to a liability.

Suspension

11.3 If at any time during the Term, in ipSCAPE’s reasonable opinion the Customer is in material breach of any term of this Agreement, ipSCAPE may, on forty eight (48) hours’ notice to the Customer (and notwithstanding any of ipSCAPE’s other rights) suspend the provision of all or any part of the Services, until such time as in the reasonable opinion of ipSCAPE the Customer’s breach has been remedied.

11.4 ipSCAPE is also entitled to suspend all or part of the Services if:

(a) for a Scheduled Interruption or an Emergency Interruption;

(b) there is a suspension of its third party suppliers’ services (acting reasonably);

(d) there is a Force Majeure event.

11.5 If ipSCAPE exercises its right under clause 11.4, it will use best endeavours to:

(a) provide the Customer with as much notice as is practical in the circumstances; and

(b) minimise the duration of the suspension.

Equitable Relief

11.6 The parties acknowledge that, in addition to other rights available under this Agreement, they may be entitled to equitable relief against the other if either party breaches any of its obligations under this Agreement. The parties further acknowledge that damages and payment of monetary compensation alone may not provide an adequate remedy.

Consumer Guarantees

11.7 Subject to clause 11.8 and 11.9, any condition or warranty which would otherwise be implied in this Agreement is excluded.

11.8 Where goods or the Services are the subject of Non-Excludable Guarantee and are not of a kind ordinarily acquired for personal, domestic or household use or consumption, to the extent permitted by law, the liability of ipSCAPE in respect of the goods or Services, if any, will be at ipSCAPE’s option and limited to:

(a) in the case of goods:

(i) the replacement of the goods or the supply of equivalent goods; or

(ii) the repair of the goods; or

(iii) the payment of the cost of having the goods repaired.

(b) in the case of services:

(i) supplying the services again; or

(ii) the payment of the cost of the services supplied again.

11.9 Where Non-Excludable Guarantees apply under the Australian Consumer Law, ipSCAPE’s goods come with guarantees that cannot be excluded by Australian Consumer Law. The Customer is entitled to:

(a) replacement or refund for a major failure, and compensation for any other reasonably foreseeable loss or damage; and

(b) have the good repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.

12. INTELLECTUAL PROPERTY RIGHTS

12.1 The Customer acknowledges that ipSCAPE and its suppliers own all the Intellectual Property Rights in the Software, the Services and any related collateral.

12.2 During the Term, the Customer consents to ipSCAPE using the Customer’s name and logo for the purpose of referring to the Customer as a customer of ipSCAPE on its website, marketing collateral, and reports.

13. CUSTOMER DATA AND PRIVACY

13.1 ipSCAPE agrees that Customer Data is the Customer’s Confidential Information.

13.2 ipSCAPE will on reasonable notice during business hours make any Customer Data and related data, document, or records maintained on behalf of the Customer, available for inspection by the Customer, subject to the payment of an Additional Charge.

13.3 The Customer acknowledges that the Customer Data may contain Personal Information.

13.4 The Customer agrees that it is solely responsible for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all Customer Data.

13.5 If any consents are required for ipSCAPE to access, record, use, and disclose Customer Data, or for ipSCAPE to provide the Services, the Customer must procure those consents for ipSCAPE. ipSCAPE’s obligations in relation to the Services are conditional on those consents being procured. The Customer will comply with ipSCAPE’s reasonable requests for confirmation that these consents have been procured. The Customer indemnifies ipSCAPE in relation to any breach by the Customer of this clause 13.5.

13.6 The Customer acknowledges that third party facilities including software programs may be necessary or appropriate for the Services. The Customer agrees that its right to make any use of such facilities is governed by the terms of the relevant third party licence/services agreement and not by this Agreement.

13.7 ipSCAPE may use Customer Data to:

(a) provide the Services in accordance with this Agreement; and

(b) develop, analyse and market its services, subject to such Customer Data being anonymised to the extent necessary for ipSCAPE to comply with its confidentiality obligations.

13.8 ipSCAPE will use best endeavours to give the Customer advance notice of any scheduled maintenance and outages which may interrupt the Customer’s access to Customer Data.

13.9 The Customer acknowledges that ipSCAPE will host its services on, and store and process Customer Data using a cloud service provider in Australia or another geographic location.

13.10 ipSCAPE will comply with all of its obligations relating to the protection of personal information and information about the Customer’s use of Services as required by law.

13.11 ipSCAPE may be required by law to collect, use or disclose information about the Customer or use of the Services by the Customer, including for the purposes of meetings its obligations in connection with:

(a) the IPND and emergency calls, as detailed in the relevant Services Schedule; and

(b) law enforcement, government and regulatory requirements.

13.12 The Customer acknowledges that ipSCAPE may have obligations at law to:

(a) facilitate interception of Voice Services by legally authorised persons; and

(b) retain certain data about the use of Voice Services, and disclose that data to legally authorised persons.

14. ACCEPTABLE USE POLICY

14.1 The Customer agrees that, in addition to the Agreement, the Customer must comply with, and procure that any other person using the Services complies with the Acceptable Use Policy.

14.2 The Customer acknowledges that the Acceptable Use Policy may be amended by ipSCAPE at any time without notice, and it is the Customer’s responsibility to ensure that it reviews the Acceptable Use Policy from time to time to ensure the Customer’s ongoing compliance with the Acceptable Use Policy.

15. NOTICES

15.1 Notices under this Agreement must be in writing and may be delivered by hand, by mail, by facsimile, or by email to the addresses specified on the Services Agreement.

15.2 Notice will be deemed given:

(a) in the case of hand delivery, upon written acknowledgement of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;

(b) in the case of posting, three (3) days after despatch;

(c) in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission;

(d) in the case of email, on the day of sending if a business day or otherwise on the next business day, provided that the sender does not receive a message from its internet service provider or the recipient’s mail server indicating that the email has not been successfully transmitted.

16. GENERAL

Force Majeure

16.1 Neither party will be liable for any delay to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

16.2 If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended.

16.3 If a delay or failure by a party to perform its obligations due to Force Majeure exceeds sixty (60) days, either party may immediately terminate the Agreement on providing notice in writing to the other party.

16.4 If this Agreement is terminated pursuant to clause 16.3, ipSCAPE will refund moneys previously paid by the Customer pursuant to this Agreement for Equipment or Services not provided by ipSCAPE to the Customer.

Conflict of interest

16.5 The Customer warrants that to the best of its knowledge no conflict of interest exists or is likely to arise in the performance of its obligations under this Agreement.

16.6 The Customer will not, during the course of this Agreement, engage in any activity likely to compromise the ability of ipSCAPE to perform its obligations under this Agreement fairly and independently. The Customer will immediately disclose to ipSCAPE any activity which constitutes or may constitute a conflict of interest.

Entire agreement

16.7 This Agreement constitutes the entire agreement between the parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

Precedence

16.8 If there is any inconsistency between the Services Agreement and this Agreement, the Services Agreement prevails to the extent of the inconsistency.

Assignment

16.9 The benefit of this Agreement will not be assigned by the Customer without ipSCAPE’s written consent, not to be unreasonably withheld or delayed but subject to such conditions as ipSCAPE chooses to impose.

Waiver

16.10 No right under this Agreement will be deemed to be waived except by notice in writing signed by each party.

Variation

16.11 The provisions of this Agreement will not be varied, except by agreement in writing signed by the parties.

Disputes

16.12 If a dispute arises out of or relates to this Agreement the parties must meet to resolve the dispute by negotiation.

16.13 If the dispute is not resolved within thirty (30) days of first notification by one party to the other of the particulars of the dispute the parties must endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (“ACDC”) before having recourse to litigation.

16.14 The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation that are operating at the time the matter is referred to ACDC.

Co-operation

16.15 The Customer will sign all documents and do all things necessary or desirable to give effect to their obligations under this Agreement and will procure its officers, employees and agents to declare, make or sign all documents and do all things necessary or desirable to give full effect to their obligations under this Agreement.

16.16 In addition to and notwithstanding any other obligation under this Agreement, the Customer will, as soon as practicable, consult with ipSCAPE on any matter arising which may materially affect the performance by the Customer of its obligations under this Agreement.

16.17 Except to the extent stated to the contrary in this Agreement, any consent, approval, condition or thing required to be done pursuant to this Agreement will not be capriciously or unreasonably delayed, withheld, given or carried out by either party.

16.18 The Customer must promptly comply with any directions given by ipSCAPE that are reasonably required to enable ipSCAPE to efficiently provide the Services and to comply with its obligations under any agreement with a wholesale service provider.

16.19 The Customer acknowledges that the efficient delivery of the Services by ipSCAPE will be dependent on the Customer promptly performing its obligations under this Agreement.

Survival of agreement

16.20 Subject to any clause to the contrary, this Agreement will enure to the benefit of and be binding upon the parties and their successors, trustees, permitted assigns or receivers but will not enure to the benefit of any other persons.

16.21 Clauses 5, 6, 7.4, 9, 11, 17 and any other term which by its nature should survive the termination of this Agreement will remain in full force and effect following the expiration or termination of the Agreement for any reason.

Severability

16.22 If any clause of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement will remain otherwise in full force apart from such provision which will be deemed deleted to the extent of that invalidity, unenforceability or illegality.

Governing law

16.23 This Agreement will be governed by and construed according to the law of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of New South Wales, Australia.

17. DEFINITIONS

17.1 In this Agreement, unless the contrary intention appears:

Acceptable Use Policy	means the acceptable use policy published on ipSCAPE’s website as amended
Additional Charge	means a charge in accordance with ipSCAPE’s standard rates in effect from time to time.
Agreement	means these general terms and conditions and the Services Agreement.
API	means any and all API end points made available by ipSCAPE to Customers from time to time
Australian Consumer Law	means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Charges	means, collectively, the: (a) SaaS Charge; (b) Voice Services Charge; (c) Implementation Charge; (d) Support Services Charge; (e) Equipment Charge; and (f) Recording Charge.
Commencement Date	means the date set out on the Services Agreement.
Confidential Information	means all information or data of either party whether disclosed orally, in writing, in machine readable form or otherwise which relates to the business affairs, products, developments, trade secrets, know-how and personnel of either party (whether or not designated as “confidential information” by the disclosing party) together with all information derived from the foregoing or any other information clearly designated by the disclosing party as “confidential information”, but does not include Confidential Information: (a) that has or later comes into the public domain other than through an act or omission of the receiving party ; or (b) which was already known to the receiving party at the time of disclosure other than by an unauthorised disclosure by a third party.
Customer	means the customer set out on the Services Agreement.
Customer Data	means any data deposited, entered or added to the ipSCAPE Software including data supplied by a third party, and data derived from the Customer Data through the ipSCAPE Software (including metadata analysis and data generated via the addition of supplementary information).
Emergency Interruption	means a disruption or suspension of any Services immediately necessary to maintain the integrity, security, safety or quality of any part of the Services for the Customer or any other customer of ipSCAPE.
Force Majeure	means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances include: (a) acts of God, lightning strikes, earthquakes, floors, storms, explosions, fires and any natural disaster; (b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution, and other emergency situations in which life or property are threatened; and (c) strikes, and outages of suppliers of carriage services to ipSCAPE.
Implement	means to perform the Implementation Services.
Implementation Dates	means the dates (if any) set out on the Services Agreement for the Implementation of the SaaS, Voice Services, and Equipment.
Implementation Services	means the implementation services set out on the Services Agreement.
Implementation Services Charge	means the charges paid or payable for the Implementation Service set out on the Services Agreement.
Intellectual Property Rights	means copyright, patent, trade mark, design right, topography right, database right, right of confidence, patent semiconductor or circuit layout rights, broadcast right and all other similar rights anywhere in the world whether or not registered and including applications for registration of any of them.
ipSCAPE Software	means the ipSCAPE software set out on the Services Agreement.
Minimum Operating Specifications	means the end user minimum operating environment specification supplied by ipSCAPE from time to time.

Non-Excludable Guarantees	means the Consumer Guarantees as defined in the Australian Consumer Law.
Optional Additional Services	means the optional additional services listed in section 7 of the Services Agreement.
Personal Information	has the meaning given to the expression in the Privacy Act 1988 (Cth).
Recording Charge	means the charge for recording set out on in section 5. ‘Usage Charges’ of the Services Agreement.
SaaS	means access to the ipSCAPE Software, API or Third Party Software.
SaaS Charge	means the SaaS charge set out on the Services Agreement.
Scheduled Interruption	means a disruption or suspension of any Services in respect of which ipSCAPE has given notice to the Customer, including for maintenance or improvement to any Services.
Services	means, the services listed in the Services Schedule to this Agreement, and includes but is not limited to: (a) SaaS; (b) Voice Services; (c) Support Services; (d) Equipment; (e) Implementation Services; (f) Change Request ;and (g) Optional Additional Services.
Service Agreement	means the service agreement, entered into between ipSCAPE and the Customer to which these terms and conditions relate as amended from time to time.
Service Credit	means a credit amount, expressed in dollars, which may be issued by ipSCAPE from time to time in accordance with a Services Schedule of the Services Agreement, which the Customer may set off against Charges it would be otherwise obliged to pay to ipSCAPE under this Agreement.
Service Level Targets	means targets (if any) for Supplier in respect of the way in which Supplier will supply certain Services, that are specified in a Services Schedule and Services Agreement.
Sites	means the address set out on the Services Agreement for delivery of the Services and Equipment and the location from which the Customer will make all or substantially all use of the Voice Services.
Software	means the ipSCAPE Software and Third Party Software set out on the Services Agreement.
Support Services	means the support services set out on the Support Services Guide.
Support Services Charge	means the charges paid or payable for the Support Services set out in section 8 ‘Support Options’ of the Services Agreement.
System	means the operating environment, equipment, and telecommunications, internet, networks, systems and other facilities used or required by the Customer for accessing and making use of the Services, other than those to be provided by ipSCAPE under this Agreement.
Term	means the term set out on the Service Agreement.
Third Party Software	means the third party software set out on the Services Agreement.
Third Party Software Terms	means the applicable terms and conditions for any third party software attached as an Annexure to this Agreement.
Voice Services	means the voice services set out on the Services Agreement.
Voice Services Charge	means voice services charge set out on the Services Agreement.

17.2 In this Agreement, unless the contrary intention appears:

(a) headings are for convenient reference only and have no effect in limiting or extending the language of the provisions to which they refer;

(b) a cross reference to a clause number is a reference to its sub-clauses;

(d) words importing a gender include any other gender;

(e) a reference to a person includes a partnership and a body, whether corporate or otherwise;

(f) a reference to a clause is a reference to a clause or sub-clause of this Agreement;

(g) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

(h) “including” and “includes” are illustrative, and neither of them will limit the sense of the words preceding them and each will be deemed to incorporate the expression “without limitation”; and

(i) monetary references are references to Australian currency.

17.3 No provision of this Agreement will be interpreted as attempting to exclude or limit, or having the effect of excluding or limiting, the operation of subsection 47B(3) or section 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth). Any provision which is inconsistent with any such subsection or section will be read down or otherwise deemed to be varied to the extent necessary to preserve the operation of such subsection, section or sections.

SERVICES SCHEDULE – SAAS

1. DEFINITIONS AND INTERPRETATION

1.1 This Services Schedule forms part of the General Terms and Conditions between the Parties and includes the Service Agreement.

1.2 Words in this Services Schedule which are not defined herein have the meaning given to them in the General Terms and Conditions.

2. SOFTWARE AS A SERVICE

2.1 ipSCAPE will provide the SaaS to the Customer in accordance with section 2 ‘Software Licence Rates AU’ and section 3 ‘Connectivity’ of the Services Agreement and otherwise in accordance with this schedule.

2.2 ipSCAPE will provide the products and capabilities listed in:

(a) the relevant software package described under ‘Monthly Software Recurring Summary’ in the table in section 2 of the Services Agreement; and

(b) the relevant connectivity package under ‘Agent Connectivity Options’ in the table in section 3 of the Services Agreement,

in each case as nominated by the Customer from time to time.

2.3 The Customer acknowledges and agrees that:

(a) ipSCAPE may make changes to the Software and API, at its discretion from time to time in order to keep the Software and API up to date with market needs and applicable security requirements; and

(b) continued use of an outdated version of the Software or API may expose the Customer to security vulnerabilities or compatibility issues.

2.4 ipSCAPE will provide the Customer with no less than 6 months’ notice prior to any change to the Software or API that may alter the Customers experience and/or require the Customer to change its API interface or the Minimum Operating Specifications.

Third Party Software

2.5 ipSCAPE may offer to the Customer Third Party Software made available as part of the SaaS. If the Customer uses Third Party Software, it must agree to the Third Party Software Terms which will form part of this Agreement.

2.6 Third parties may make changes to the Third Party Software from time to time which affect the functionality or usability of the Third Party Software. The Customer acknowledges that these changes are outside the control of ipSCAPE, no warranty or assurance may be given of the Third Party Software’s functionality or usability, and ipSCAPE is not liable for any loss arising out of such change, however Customer will be given the opportunity to cancel such Third Party Services at no charge in the event they are not satisfied with the change.

Customer Obligations

2.7 The Customer acknowledges that the SaaS must not be resupplied, lent or transferred to any other person without the express written consent of ipSCAPE.

2.8 The Customer will be solely responsible for the use, supervision, management and control of the SaaS occurring under its SaaS user accounts.

2.9 The Customer agrees to comply with any reasonable procedures (including communications and security) relating to the SaaS as ipSCAPE notifies the Customer.

2.10 The Customer will ensure that the SaaS is only used for the purpose intended and protected from misuse or unauthorised use.

2.11 The Customer must not:

(a) remove or modify ipSCAPE or third party markings or any rights notice;

(b) make the SaaS available to any third party other than its employees and contractors;

(d) interfere with or disrupt the integrity or performance of the SaaS;

(e) distribute or transmit any part of the SaaS by any means;

(f) use the SaaS to generate and transmit unsolicited electronic messages;

(g) use the SaaS to contravene any person’s rights (including Intellectual Property Rights); or

(h) use the SaaS to contravene any laws.

2.12 If the SaaS is provided to the Customer on a per user basis (for example, on a named or password enabled basis), the Customer must ensure that the access rights of any individual user are not shared or used by more than one individual. The Customer may reassign the right of an individual user to the SaaS to another individual in which case the first user must no longer have any right to the SaaS.

SERVICES SCHEDULE – VOICE SERVICES

1. DEFINITIONS AND INTERPRETATION

1.1 This Services Schedule forms part of the General Terms and Conditions between the Parties, and includes the Service Agreement.

1.2 Words in this Services Schedule which are not otherwise defined herein have the meaning given to them in the General Terms and Conditions.

2. VOICE SERVICES

2.1 ipSCAPE will supply the Voice Services to the Customer as they are described in:

(a) the relevant software package described under ‘Monthly Software Recurring Summary’ in the table in section 2 of the Services Agreement;

(b) the relevant connectivity package under ‘Agent Connectivity Options’ in the table in section 3 of the Services Agreement; and

(c) the relevant item described under ‘Termination Number & Channels’ in the table in section 6 of the Services Agreement,

in each case as nominated by the Customer from time to time.

Use of Voice Services

2.2 The Customer:

(a) must not take any steps to alter, damage, or interfere with the Voice Services;

(b) must comply with any directions, requirements or policies of government agencies and applicable laws in connection with the Voice Services, including those relating to privacy, the recording of telephone calls, and unsolicited communications;

(d) must promptly notify ipSCAPE in writing if there is any change to the location of where the Voice Services are being provided;

(e) acknowledges that ipSCAPE has no control over the use of the Voice Services by the Customer;

(f) indemnifies ipSCAPE in respect of any inappropriate or illegal use of the Voice Services by the Customer;

(g) acknowledges that ipSCAPE may be required by law to provide information about the Customer in connection with the Voice Services to governmental agencies, industry bodies, or other third parties. This may include providing information about telephone numbers, the beneficial user of the Voice Services, the name and address of the Customer, and the location of where the Voice Services are being provided for the purpose of a public database known as the Integrated Public Number Database (“IPND”). Information in the IPND may be used for a range of purposes, including emergency services and law enforcement. The Customer acknowledges that IPND information may also be used to list the Customer in the public telephone directory, unless the Customer requests that any of its numbers be a private number;

(h) acknowledges that telephone numbers are issued and may only be used in accordance with the Telecommunications Numbering Plan, a regulatory instrument maintained by the Australian Communications and Media Authority. The Customer acknowledges that ipSCAPE may be required by law to vary, withdraw, suspend or reassign any telephone number related to the Voice Services, and ipSCAPE will have no liability to the Customer arising from such telephone number changes;

(i) acknowledges that it has no right, title, or interest in any telephone number that is assigned to the Customer, with the exception of Toll Free and shared services as well as customer owned services which are ported to ipSCAPE;

(j) must not resell the Voice Services without the consent of ipSCAPE which will not be unreasonably withheld.

Voice Recording and Bundling

2.3 ipSCAPE will, if requested, record communications made or received using the Voice Services in accordance with the recording specifications detailed in section 5. ‘Usage Charges’ of the Services Agreement (“Recording Specifications”)

2.4 Subject to the Recording Specifications and the payment of any Recording Charge, ipSCAPE will provide the Customer with a digital file of a telephone recording as soon as reasonably practicable after receiving a written request from the Customer.

2.5 The Customer:

(a) consents to ipSCAPE recording all communications made or received using the Voice Services;

(b) must ensure that each user of the Voice Services, including its employees and contractors, consents to the recording of all communications made by the user; and

(c) must ensure that each person the Customer communicates with through the Voice Services consents to the recording of all communications made by that person.

2.6 The Customer indemnifies ipSCAPE in respect of any breach of paragraph 2.5. Prerequisites to the supply of the Voice Services

2.7 The Customer acknowledges that the Voice Services:

(a) are a sophisticated business-oriented service designed solely for business use, and are not suitable for home or very small business purposes;

(b) include the supply to the Customer of more than 5 eligible telephone services (as that term is defined in the Telecommunications (Consumer Service Guarantee) Standard 2011); and

(c) are not subject to the performance standards specified in the Telecommunications (Consumer Service Guarantee) Standard 2011 (as amended).

Customer acknowledgements

2.8 The Customer acknowledges that:

(a) the Services are not and will not be free from faults, errors or interruptions;

(b) the Services rely on third party public infrastructure, including internet and public switched telephone network infrastructure, over which ipSCAPE and its suppliers may have limited or no control;

(c) ipSCAPE and its suppliers cannot guarantee that the Voice Services can or will connect to any other voice communication service or network, wherever located;

(d) the Services may be unavailable from time to time, subject to the applicable Service Level Targets;

(f) ipSCAPE has no obligation or liability to the Customer or any other person for any loss or damage arising from any failure, disruption or unavailability of any Voice Services.

(e) certain costs associated with the use of Voice Services, including international call rates and third party network access charges, are not within the control of ipSCAPE, and charges for such use may vary at any time without notice;

2.9 The Customer acknowledges that some or all of the Voice Services may be:

(a) reliant on services supplied to ipSCAPE by its suppliers; or

(b) may be entirely provided by suppliers, and resold to the Customer by ipSCAPE,

and ipSCAPE may change suppliers at any time without notice to the Customer.

2.10 If the Customer advises ipSCAPE of any problem affecting the Voice Services, or ipSCAPE otherwise becomes aware of any such problem, and that problem is caused by any circumstance beyond the control of ipSCAPE (including a problem with any network or system operated by any of ipSCAPE’s suppliers), ipSCAPE will make reasonable commercial efforts to notify any person who ipSCAPE considers is reasonably likely to be able to resolve the problem (including one of ipSCAPE’s suppliers), and the Customer acknowledges that ipSCAPE will have no further obligations in connection with such problem, and ipSCAPE will have no liability to the Customer arising from such problem.

2.11 The Customer acknowledges that if ipSCAPE investigates any problem with the Voice Services notified to it by the Customer, and ipSCAPE determines that the cause of the problem was an error, misconfiguration or failure of any equipment or system owned or operated by the Customer, or if the problem is caused by any negligence, act or omission of the Customer, the Customer must pay ipSCAPE’s reasonable costs arising from performing the investigation.

Emergency Calling

2.12 When a person calls the Australian national emergency number “000” using the Voice Services, ipSCAPE will route that call to the emergency call service associated with the Customer’s Site.

2.13 The Customer acknowledges that if a user of the Voice Services utilises any facility for making Voice Service calls from a location other than the Site, the emergency call service may be unable to determine such location (or may assume the user’s location to be the Site), and the user must inform the emergency call service of their actual location at the time of making the call.

2.14 The Customer acknowledges that the Voice Services may be unable to connect to the emergency call service in the event of a power failure, or failure of any network or computer equipment (including the Customer’s equipment) upon which the Voice Services are reliant.

Equipment

2.15 Unless configuration services are being supplied as part of Implementation Services, ipSCAPE will provide the Customer with generic equipment configuration details which are required to connect any device to the Voice Services, and it is the Customer’s responsibility to use this information to configure its equipment to the Voice Services.

2.16 Customer acknowledges that any failure to properly configure its equipment may disrupt or prevent it from accessing Voice Services, or may delay access to Voice Services, but in any event the Customer remains liable to pay the Voice Services Charge during any such period of unavailability, disruption or delay.

2.17 Except to the extent that ipSCAPE supplies the relevant Equipment or Implementation Services to the Customer, the Customer agrees that ipSCAPE has no responsibility to the Customer or any other person arising from any problem or defect with, or mis-configuration of, its equipment, or any incompatibility of its equipment with the Voice Service.

SERVICES SCHEDULE – SUPPORT SERVICES

1. DEFINITIONS AND INTERPRETATION

1.1 This Services Schedule forms part of the General Terms and Conditions between the Parties, and includes the Service Agreement.

1.2 Words in this Services Schedule which are not defined in this paragraph 1 have the meaning given to them in the General Terms and Conditions.

1.3 In this Services Schedule, unless the contrary intention appears:

New Release	means software which has been supplied primarily to provide an extension, alteration, improvement or additional functionality to the Software;
Support Services Guide	means the support services guide published on the ipSCAPE website as amended; and
Update	means a computer program which has been produced primarily to overcome defects in the Software.

2. SUPPORT SERVICES

2.1 ipSCAPE will provide the Support Services to the Customer in accordance with this paragraph 2.

SaaS Support

2.2 ipSCAPE will provide the Support Services at such frequency and duration as set out in the Services Agreement and, if that is silent, then as is reasonably necessary to ensure that errors in the SaaS identified by the Customer or which otherwise comes to the attention of ipSCAPE are rectified.

2.3 If the Support Services include the provision of Updates and New Releases, the Customer must install the Update or New Release on notification from ipSCAPE.

Exclusions

2.4 Unless specifically included in the Support Services, ipSCAPE is not required to provide services involving:

(a) reinstallation, moving or removing of the System, devices or attachments;

(b) furnishing or maintenance of accessories, attachments, supplies, consumables or items associated with the System;

(c) correction of errors or defects caused by operation of the SaaS in a manner other than that expressly or by implication authorised by ipSCAPE;

(d) rectification of errors caused by misuse or incorrect use of the SaaS by the Customer; or

(e) repair of damage arising from the Customer’s failure to comply with any provision of this Agreement.

SERVICES SCHEDULE – EQUIPMENT

1. DEFINITIONS AND INTERPRETATION

1.1 This Services Schedule forms part of the General Terms and Conditions between the Parties, and includes the Service Agreement.

1.2 Words in this Services Schedule which are not defined in this paragraph 1 have the meaning given to them in the General Terms and Conditions.

1.3 In this Services Schedule, unless the contrary intention appears:

Equipment	means the equipment set out on the Services Agreement.
Equipment Charge	means the charges paid or payable for the provision and delivery of the Equipment set out on the Services Agreement.
Operating Manuals	means the Equipment manufacturer’s documentation, relevant to instruction in the use of the Equipment.

2. EQUIPMENT

2.1 ipSCAPE will supply the Equipment to the Customer in accordance with this paragraph 2.

Delivery

2.2 ipSCAPE will use reasonable endeavours to deliver the Equipment to the Customer on the Implementation Dates at the Sites during ipSCAPE’s normal business hours.

Operating Manuals

2.3 ipSCAPE will provide the Customer with copies of each of the Operating Manuals as are supplied by the Equipment manufacturers.

Title

2.4 Subject to any other express provision of this Agreement, title in the Equipment will pass to the Customer upon full payment of the Equipment Charges.

Risk

2.5 Risk of loss or damage to the Equipment passes to the Customer upon delivery of the Equipment to the Sites. Customer must keep all evidence of any alleged damage (such as damaged packaging) prior to delivery. ipSCAPE’s liability for goods alleged to be damaged in transit is, subject to applicable laws, reduced to the extent the Customer is unable to reasonably prove the damage was caused prior to delivery.

Warranties

2.6 ipSCAPE assigns its rights to any Equipment manufacturer warranties to the Customer on the Customer taking title to the Equipment. Before making a claim against ipSCAPE in relation to Equipment, the Customer must make a claim against the Equipment manufacturer and exercise and exhaust its rights under the Equipment manufacturer warranties.

SERVICES SCHEDULE – IMPLEMENTATION SERVICES

1. DEFINITIONS AND INTERPRETATION

1.1 This Services Schedule forms part of the General Terms and Conditions between the Parties, and includes the Service Agreement.

1.2 Words in this Services Schedule which are not defined in this paragraph 1 have the meaning given to them in the General Terms and Conditions.

1.3 In this Services Schedule, unless the contrary intention appears:

Acceptance Criteria

means that the SaaS, Voice Services, and Equipment perform substantially in accordance with the business proposal prepared for the Customer by ipSCAPE.

Acceptance Period

means 2 business days from the date the Implementation Services have been completed.

Post Implementation Environment

means the Customer’s operating systems and environment following the completion of the Implementation Services .

2. IMPLEMENTATION SERVICES

Implementation Services

2.1 ipSCAPE will perform the Implementation Services for the Customer in accordance with section 4. ‘Implementation’ of the Services Agreement and otherwise in accordance with this paragraph 2.

2.2 ipSCAPE will Implement the SaaS, Voice Services, and Equipment at the Sites on the Implementation Dates. Unless stated otherwise, the Implementation Service will be effected during ipSCAPE’s normal business hours.

2.3 The Customer will provide ipSCAPE with such assistance (including the provision of information, personnel and facilities) as ipSCAPE reasonably considers necessary to ensure satisfactory Implementation of the SaaS, Voice Services, and Equipment. If the Implementation Services include product and service training, the Customer must ensure that the Customer representatives nominated for the training are suitably qualified.

2.4 If the Customer fails to provide assistance reasonably requested by ipSCAPE in paragraph 2.2 in a prompt manner or ipSCAPE delays Implementation due to inadequate preparation of the Sites or access to the Sites, the Customer acknowledges:

(a) ipSCAPE will have no liability to the Customer to the extent ipSCAPE is unable to supply any Services due to such failure or delay; and

(b) Customer must, in addition to the Charges, pay all reasonable costs and expenses incurred by ipSCAPE as a result.

Acceptance

2.5 ipSCAPE will advise the Customer when the Implementation Services have been completed.

2.6 The Customer must test the Post Implementation Environment in accordance with the Acceptance Criteria within the Acceptance Period. ipSCAPE must provide all reasonable assistance to enable the Customer to conduct the tests.

2.7 The Customer is responsible for the preparation of all necessary acceptance test data specified in or relevant to the Acceptance Criteria. ipSCAPE is entitled to observe and where reasonable participate in the acceptance tests.

2.8 The Customer must provide written notice to ipSCAPE within the Acceptance Period that:

(a) it accepts the Post Implementation Environment;

(b) the Post Implementation Environment does not meet the Acceptance Criteria due to a failure in the SaaS, Voice Services, or Equipment, and provide all relevant details to ipSCAPE to rectify; or

(c) it accepts the Post Implementation Environment on the basis that ipSCAPE rectify any material failures in the SaaS, Voice Services, or Equipment within a further 10 business days, and provide all relevant details to ipSCAPE to rectify.

2.9 The Customer is deemed to have accepted the Post Implementation Environment if:

(a) it does not provide written notice in accordance with paragraph 2.8; or

(b) the Post Implementation Environment is used in the live environment.

2.10 If the Post Implementation Environment is rejected under paragraph 2.8(b), ipSCAPE must use best endeavours to rectify the specified defect in the SaaS, Voice Services, or Equipment within a reasonable amount of time and notify the Customer when it can repeat acceptance testing.

2.11 If after repeating acceptance testing twice under paragraph 2.10, the Post Implementation Environment is rejected by the Customer due to a failure in the SaaS, Voice Services, or Equipment, ipSCAPE may terminate this Agreement.

2.12 On acceptance of the Post Implementation Environment, the Customer will within 2 days of request provide ipSCAPE with written acknowledgement of acceptance of the Post Implementation Environment.

Training and professional services

2.13 ipSCAPE can provide ad hoc training in the use of the SaaS, Voice Services, and Equipment and other professional services, if requested by the Customer, subject to payment of an Additional Charge.

SERVICES SCHEDULE – CHANGE REQUEST

1. DEFINITIONS AND INTERPRETATION

1.1 This Services Schedule forms part of the General Terms and Conditions between the Parties, and includes the Service Agreement.

1.2 Words in this Services Schedule which are not otherwise defined herein have the meaning given to them in the General Terms and Conditions.

2. CHANGE REQUEST

2.1 The Customer may at any time request:

(a) that ipSCAPE provide additional services within the scope of services offered generally by ipSCAPE (including increasing the number of users to whom the SaaS is provided), to the Customer;

(b) the removal of some or all relevant Services (subject to any minimum Term indicated in the Services Agreement or otherwise); or

(c) an upgrade to a higher grade Service and/or any other change to the Services within the scope of services offered generally by ipSCAPE, by giving ipSCAPE 30 days’ notice of a change request (“Change Request”) and setting out the details of the change required.

2.2 In respect of a request relating to paragraph 2.1(a) or 2.1(c), any change to the scope of the Services must be agreed in writing. ipSCAPE will use best endeavours to offer such a change. The change to the Services will be effected in accordance with an agreed timetable with the Customer. The rates for providing any additional or higher grade Services will be agreed with the Customer or otherwise set at the time and materials rate set out on ipSCAPE’s website as amended.

2.3 In respect of a request relating to paragraph 2.1(b), ipSCAPE will implement the change in accordance with a timetable to be agreed with the Customer:

(a) at no charge to the Customer if there is no applicable minimum Term set out in the Services Agreement; or

(b) if there is a minimum Term set out in the Services Agreement, the Customer must pay ipSCAPE the remaining recurring Services fees until the end of the minimum term.

2.4 If a Change Request is a request to relocate a Site, a one off relocation fee (the amount of which will be quoted by ipSCAPE prior to relocation, and may include an amount equal to the unrecoverable costs and expenses that would be incurred by ipSCAPE in relation to the relocation of the original Site) will be charged for each Site that can be successfully relocated. For clarity, ipSCAPE will determine if a Site can be relocated at its absolute discretion but will use all commercial reasonable efforts to do so.

2.5 Where a Site cannot be relocated in accordance with paragraph 2.4 and the Customer wishes to terminate all or part of the Services received at the Site, the Customer:

(a) must pay ipSCAPE all of the unrecoverable costs, expenses, and commitments that ipSCAPE has incurred in reliance of and in expectation of the relevant Services being provided for the full duration of the Term; and

(b) may acquire alternative Services from ipSCAPE. The Customer acknowledges that there may be a change in the Services Charge for the replacement Services.

2.6 The removal of a particular Service pursuant to this paragraph will not affect any other Services purchased by the Customer and this Agreement will continue to apply to those continuing Services.

ANNEXURE – THIRD PARTY SOFTWARE TERMS