Telstra Business Services Agreement (Page 10 of 16) in pdf

Telstra Business Services Agreement

Agreement Terms

Page 8

preserve the intention of the parties as expressed in this Agreement to the extent possible, and in a manner that

preserves the equities of the bargain. In the event that notwithstanding such efforts, the parties are unable to reach

agreement within 60 days, then either party may cancel this Agreement upon 30 days’ notice to the other.

Waiver of rights

13.6.

A condition of this Agreement, or a right created by it, may only be waived by a writing executed by an authorized

representative of the party against whom the waiver is to be enforced.

13.7.

A waiver of a breach of this Agreement does not waive any other breach and the failure to exercise or any delay in

exercising a right or remedy provided by the Agreement or by law does not constitute a waiver of the right or

remedy.

Warranties

13.8.

The Customer and Telstra each warrants to the other that:

(a)

entering into and performing its obligations under the Agreement do not breach any of its contractual

obligations to any other person; and

(b)

it has not relied on any representations or warranties by the other party other than those in the Agreement.

Assignment

13.9.

Neither the Customer nor Telstra may assign its rights under this Agreement without the prior written consent of the

other, which will not unreasonably be withheld, except that either party may, without the other party’s consent,

assign this Agreement to a present or future Affiliate or successor, provided that such Affiliate or successor is not a

competitor of the other party and any such assignment by Customer shall be contingent upon Telstra determining

the assignee to be creditworthy and in compliance with any eligibility criteria for the Services.

Force majeure

13.10. Neither party is liable for not performing an obligation in whole or in part, or for not performing it on time (except an

obligation to pay money) or any loss or damage due to a Force Majeure Event.

13.11.

If a Force Majeure Event occurs, the affected party must: (a) give the other party notice of the event promptly and

an estimate of the non-performance and delay; (b) take all reasonable steps to overcome the effects of the event

(but this does not require the settlement of industrial disputes or other claims on unreasonable terms); and (c)

resume compliance as soon as practicable after the event no longer affects either party.

Agency

13.12.

The Customer may appoint a third party to act on its behalf in relation to the Agreement only if and for so long as

Telstra consents to it doing so. Telstra may impose conditions on the giving of its consent and may withdraw its

consent at any time. Telstra will not unreasonably withhold consent, impose conditions or withdraw consent.

13.13.

Telstra may provide some or all of the services the Customer has requested directly as a carrier, or by

subcontracting the services to other service providers or by procuring those services from one or more other

carriers on the Customer’s behalf as its agent. Where Telstra procures services as the Customer’s agent (the

“Third-Party Services”) the Customer agrees that it shall be separately liable to the carrier(s) from which those

Third-Party Services are procured (the “TP Carrier”) for any and all charges, including any Taxes, that are assessed

for those Third-Party Services and shall comply with the applicable terms and conditions imposed by such TP

Carrier; provided that in certain locations Telstra may be able to provide single end ordering, single end billing, and

single end fault reporting for such Third-Party Services under the terms and conditions of the attached FCMS

Schedule. Telstra may charge the Customer a management fee for providing such billing services and other

management services related to such Third Party-Services, which fees may be included in the charge that Telstra

bills the Customer for the Third Party Services. The Customer may be required to execute, or arrange for the

Telstra-Customer Confidential

4.11.11

Telstra Business Services Agreement Page 10

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