These Special Terms and Conditions may be incorporated by reference in any application form executed by a prospective customer of Delacon Pty Limited ABN 42 074 596 553 (Delacon) (each such Delacon application form being a Relevant Form).

For the purposes of any agreement created by the execution and acceptance of a Relevant Form, capitalised terms used in these Special Terms and Conditions and not otherwise defined will have the meaning given to them in the Relevant Form.

Minimum monthly spend
[Paragraphs 1 to 4 (inclusive) below apply where a Minimum Monthly Spend is specified in Section 2 of the Relevant Form] 

  1. Customer agrees that the Services will be subject to the Minimum Monthly Spend (MMS) specified in Section 2 of the Relevant Form.
  2. The MMS will apply in the event that the total actual fees and charges accrued by the Customer for the Services in any billing month is below the MMS amount.  Subject to paragraph 4 below, for any billing month Delacon may calculate the difference between the MMS and the actual fees and charges accrued by the Customer for that billing month, and apply the difference as an additional charge on the invoice for the immediately following billing month.
  3. At the expiration of any Fixed Term, the MMS will continue to apply.
  4. If any Ramp-up Period is specified in Section 2 of the Relevant Form, then:

(a)     that Ramp-Up Period will begin on the date when Services are first provided to the Customer; and

(b)     the MMS will not apply to the Customer until the start of the first billing month to commence after the end of the Ramp-up Period (and will then continue to apply with respect to each subsequent billing month during the term of the Agreement).

Fixed term  (with MMS)
[Paragraphs 5 to 7 (inclusive) below apply where a Fixed Term AND Minimum Monthly Spend are specified in Section 2 of the Relevant Form] 

  1. Customer agrees that the Services will be subject to the fixed (minimum) term specified in Section 2 of the Relevant Form, commencing on the date when Services are first provided to the Customer (Fixed Term).
  2. If the Customer gives Delacon a notice of termination  under the Applicable Terms, or port-out request, with respect to all Services, and the date on which the notified termination (or requested port-out) goes into effect falls before the end of the Fixed Term, then the Customer will become immediately liable to pay a cancellation charge (General Cancellation Charge) equal to: the MMS amount multiplied by the number of months (including part months) between the date when the termination of the Services, or port-out, will go into effect and the final day of the Fixed Term.

For clarity, if the Customer gives a notice of termination or port-out request affecting only part, and not all, of the Services, all terms of the agreement constituted by the execution and acceptance of the Relevant Form will continue to apply in full to the Services not terminated or ported away (including but not limited to the terms concerning the MMS).

  1. Customer agrees that the General Cancellation Charge, as well as each of the 13 Cancellation Charge and Fixed Cancellation Charge (as defined below), is a reasonable estimate of Delacon’s likely financial loss, including where Service(s) are terminated prior to the end of the Fixed Term.

Fixed term (no MMS)
[Paragraphs 8 to 10 (inclusive) below apply where a Fixed Term is specified in Section 2 of the Relevant Form but NO Minimum Monthly Spend applies]

  1. Customer agrees that the Services will be subject to the fixed (minimum) term specified in Section 2 of the Relevant Form, commencing on the date on which Services are first provided to the Customer (Fixed Term).
  2. If the Customer gives a notice of termination under the Applicable Terms, or port-out request, with respect to any Service(s), and the date on which the notified termination (or requested port out)  goes into effect falls before the end of the Fixed Term, then the Customer will become immediately liable to pay a cancellation charge (General Cancellation Charge) equal to: the sum of the recurring monthly fees payable each month with respect to the Service(s) being terminated or ported out, multiplied by the number of months (including part months) between the date when termination of the Services, or port-out, will go into effect and the final day of the Fixed Term.
  3. Customer agrees that the General Cancellation Charge, as well as each of the 13 Cancellation Charge and Fixed Cancellation Charge (as defined below), is a reasonable estimate of Delacon’s likely financial loss, including where Service(s) are terminated prior to the end of the Fixed Term.

Provisions applying to the termination and porting out of numbers

  1. For clarity, for any terminated or ported Service(s), in addition to any Cancellation Charge(s) applying under these Special Terms and Conditions, Customer will be liable to pay all fees and charges payable under the Relevant Form and the Applicable Terms with respect to the period starting on the date of Customer’s notice of termination and ending on the date on which the termination or port-out goes into effect.
  2. An additional fee may be payable in connection with any porting out of numbers, as specified in Section 2 of the Relevant Form or otherwise in the Applicable Terms.

Automatic renewal of term

[Paragraphs 13 and 14 below apply where a Fixed Term AND a Renewal Period are specified in Section 2 of the Relevant Form]

  1. Subject to paragraph 14 below, at the end of the Fixed Term, the term of all Services will automatically renew (without the need for any further action by either party) for successive periods equal to the Renewal Period, if any (each such period, a New Term), on and subject to the Applicable Terms. Upon a renewal of term under this paragraph, the New Term will become the “Fixed Term” for all purposes under the Applicable Terms.
  2. If either party notifies the other in writing, at least fourteen (14) days before the end of the Fixed Term, that it wishes to terminate one or more Service(s) at the end of the Fixed Term (Termination Notice), then the Service(s) specified in such notice will not be automatically renewed under paragraph 13 above.  For clarity, if neither party issues any Termination Notice at least fourteen (14) days before the end of the Fixed Term, then the Fixed Term will automatically renew for all Services as set out in paragraph 13 above.

Continuation of term where no Renewal Period is specified

[Paragraph 15 below applies where a Fixed Term is specified in Section 2 of the Relevant Form but NO Renewal Period is specified]

  1. Where no Renewal Period is specified in Section 2 of the Relevant Form then upon the end of the Fixed Term, if no Termination Notice has been given under paragraph 14,  the term of all Services will automatically continue (without the need for any further action by either party), on and subject to the Applicable Terms, up until termination of the Services or the Agreement by the Customer or Delacon in accordance with the Applicable Terms.

Billing and invoicing – pre-paid 

[Paragraphs 16 and 17 apply where Customer elects, in Section 2 of the Relevant Form, to be billed on a pre-paid basis]

  1. As a pre-paid Delacon customer, Delacon’s billing department will set up a PAYG account for Customer. When Customer’s account reaches a low balance, Delacon will automatically top up the account with Customer’s preferred top up amount as specified in Section 2 of the Relevant Form. Delacon recommends a top up amount sufficient to cover the monthly cost of Customer’s call tracking numbers and Customer’s estimated monthly call usage charges.
  2. NOTE:  Depending on the top-up method Customer selects, there may be clearance period before funds are credited to Customer’s account. For further information please contact support@delaconcorp.com.

Billing and invoicing – post-paid 

[Paragraphs 18 to 26 (inclusive) apply where Delacon is requested, and agrees, to bill Customer on a post-paid basis]

  1. The Customer acknowledges it will pay all fees and charges in each invoice issued by Delacon. At the end of each billing month Delacon will issue an invoice to the Customer for the monthly fees and call charges for the immediately preceding billing month (a Monthly Invoice). The Customer must pay the Monthly Invoice within 14 days of receipt.
  2. Provided Delacon has approved any credit application that it may require from the Customer, in any billing month, Delacon will allow the Customer to accrue monthly fees and call charges up to a maximum amount of the Spend Limit specified in Section 2 of the Relevant Form. It is the Customer’s responsibility to ensure that it does not exceed its Spend Limit within any billing month. When a Customer becomes aware that they are approaching their Spend Limit, the Customer must contact Delacon and pay all or a portion of their outstanding charges.
  3. If during any billing month, the Customer’s monthly fees and call charges exceed 80% of the Spend Limit, Delacon will issue to the Customer an interim invoice for an amount that, when paid, will reduce the Customer’s outstanding charges to an amount less than 40% of the Spend Limit (Interim Invoice). In the event that the Customer fails to pay the Interim Invoice within two (2) business days of the date of issue (and thereby reduce its outstanding charges to an amount that is less than 40% of its Spend Limit), this will constitute a material breach of this Agreement and Delacon reserves the right to suspend any or all of the Services upon 24 hours’ written notice to the Customer. Nothing in this paragraph shall remove the Customer’s obligation to pay a Monthly Invoice in accordance with the Applicable Terms.
  4. Delacon may review the Spend Limit from time to time. Delacon may reduce the Spend Limit without prior written notice, but will not reduce the Spend Limit below the outstanding balance on the Customer’s account at the time of the reduction, without prior consultation with the Customer.
  5. As a condition of Delacon providing the Services, Delacon may conduct a credit check and/or require the Customer to lodge a form of security from which Delacon may deduct the outstanding charges and other amounts payable by the Customer, in the event that the Customer fails to pay such amounts by the due date of payment or if this Agreement is terminated. The security will be at least equal to the Customer’s estimated monthly liability to Delacon. Delacon may review the sufficiency of the security from time to time and may increase the amount required by notice in writing to the Customer. The security may be in one of the following forms:
  6. cash deposit; or
  • a bank guarantee in a form acceptable to Delacon.
  1. Customer will ensure that the original amount of any security is restored within five (5) days of any deduction by Delacon pursuant to these terms.
  2. In the event of any default in payment to Delacon the Customer will pay Delacon its costs of and incidental to the recovery of such sums as may be due including all mercantile and like fees and legal fees and charges on a solicitor/own client full indemnity basis and any filing fees, stamp duty, taxes or any other fees payable, assessed or incurred in relation to such recovery process.

Waiver and entire agreement 

  1. (a)     No waiver of a right or remedy under the Applicable Terms is effective unless it is in writing and signed by the party granting it. It is only effective in the specific instance and for the specific purpose for which it is granted.

(b)     A single or partial exercise of a right or remedy under the Applicable Terms does not prevent a further exercise of that or of any other right or remedy.

(c)      Failure to exercise or delay in exercising a right or remedy under the Applicable Terms does not operate as a waiver or prevent further exercise of that or of any other right or remedy.

  1. The terms set out in and incorporated into the Relevant Form supersede any previous agreements, understandings, negotiations, representations and warranties regarding the Services, and embody the entire agreement between Delacon and the Customer concerning the Services.

Special terms and conditions regarding six-digit 13 numbers 

[Paragraph 27 applies where the Services include six-digit 13 numbers] 

  1. If the Customer issues any notice of termination under the Applicable Terms, or port-out request, with respect to any 13 number, then:

(i)      if the date on which the notified termination (or requested port out) goes into effect falls before the end of the then-applicable Fixed Term, the Customer will become immediately liable to pay a cancellation charge (13 Cancellation Charge) equal to: the sum total of all recurring monthly fees that would have been chargeable by Delacon for the 13 number being terminated or ported away, during the period from the date when termination or porting away of the 13 number will go into effect until the final day of the Fixed Term; and

(ii)      in addition to any 13 Cancellation Charge that may apply, the Customer will become immediately liable to pay a fixed cancellation charge of $3500 in respect of the 13 number being terminated or ported away (Fixed Cancellation Charge).

For  clarity:

– The 13 Cancellation Charge and Fixed Cancellation Charge are payable:

(A)     in addition to any applicable General Cancellation Charge; and

(B)     with respect to each 13 number that is terminated or ported away from Delacon.

– The Fixed Cancellation Charge is payable regardless of whether or not any General Cancellation Charge or 13 Cancellation Charge is payable (that is to say, regardless of whether or not the relevant termination or port out goes into effect before the end of the then-applicable Fixed Term).

Data Security Information – charges

  1. On Customer’s request, Delacon will provide Delacon’s standard information security report concerning its operations and the Services free of charge.
  2. On Customer’s request and following payment of the Report Fee, Delacon will complete an information security questionnaire provided to it by Customer or assist Customer to complete a bespoke information security report.
  3. The Report Fee is $6,000.
  4. If the Customer approves Delacon’s responses to the information security questionnaire for which a Report Fee has been paid, and Delacon  accepts the Customer’s application and commences providing Services to the Customer, Customer will be refunded half of the Report Fee, by way of a credit to the Customer’s account with Delacon.

Data Studio Reporting – charges

  1. Following  Customer’s written request, and subject to paragraph 33 below, Delacon will provide Customer with reporting from the Data Studio suite of tools (Data Studio Reporting).
  2. If during the billing month ending immediately prior to the month in which the Customer makes the request for Data Studio Reporting:
  1. the Customer paid and Delacon received $1,000 or more for the Services (excluding GST), then Data Studio Reporting will be provided by Delacon to the Customer for no charge, and will commence no later than thirty (30) days after the date of the Customer’s request; or
  2. the Customer paid and Delacon received less than $1,000 for the Services (excluding GST), then following payment by the Customer of a data reporting set up fee of $1,000, Delacon will provide the Data Studio Reporting to the Customer, commencing no later than thirty (30) days after the date on which the payment was received by Delacon.

Fees paid to Delacon under this paragraph 33 are non-refundable.

International rates

  1. For any call terminating in a country which is different to the country where the call originated, the applicable per minute usage fee (call charge) will be the sum of the following:
  1. the per minute fee applying in the destination country (excluding any GST); PLUS
  2. an additional fee of $0.89 per minute (INCLUDING GST).

 

15 February 2022