Telstra Business Services Agreement (Page 8 of 16) in pdf

Telstra Business Services Agreement

Agreement Terms

Page 6

ANY DIRECT OR INDIRECT LOSS, DAMAGE, COST OR EXPENSE (INCLUDING LOSS OF PROFITS, LOSS OF

ANTICIPATED SAVINGS, COST OF PURCHASING REPLACEMENT SERVICES, ECONOMIC LOSS OR ANY

SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGE), WHETHER OR NOT SUCH LOSSES WERE

FORESEEABLE, INCURRED BY CUSTOMER OR A THIRD PARTY IN CONNECTION WITH ANY OF THE

SERVICES OR ANY ACT OR OMISSION BY TELSTRA UNDER OR IN RELATION TO THIS AGREEMENT.

11.2.

TELSTRA MAKES NO WARRANTY, EITHER EXPRESS OR IMPLIED, CONCERNING TELSTRA’S FACILITIES

OR SERVICES, AND EXPRESSLY DISCLAIMS WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A

PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF

TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. TELSTRA DOES NOT AUTHORIZE

ANYONE TO MAKE A WARRANTY OF ANY KIND ON ITS BEHALF AND THE CUSTOMER SHOULD NOT RELY

ON ANY SUCH STATEMENT.

11.3.

Despite anything else in this Section 11, Telstra accepts liability:

(a)

for the Customer’s proven direct damages resulting from the bodily injury or death directly caused by any

negligence by Telstra directly in relation to the supply of the Services; or

(b)

for the Customer’s proven direct damages resulting from real or tangible property damage directly caused

by Telstra’s negligence in relation to the supply of the Services, but limits its liability to proven direct

damages not to exceed per claim, or in the aggregate for all claims arising during any twelve-month period,

to the aggregate amount of Monthly Recurring Charges paid by the Customer for the applicable Services

during such twelve-month period.

11.4.

In the event that Telstra fails to meet a Service Level set forth in a Service Schedule, the Customer acknowledges

that the Customer’s sole and exclusive remedy for such failure, if any, are set out in the Service Level, and under no

circumstance shall failure to meet such Service Level be deemed a breach of the Agreement by Telstra. Telstra

shall have no other liability for the performance or nonperformance of the Services.

11.5.

Telstra is not liable for any loss, damage, liability, cost or expense arising out of or relating in whole or in part to the

interoperability, access or interconnection of the Services with applications, equipment, services, content or networks

provided by the Customer or third parties; service levels, delays or interruptions (other than for Credits explicitly set

forth in a Service Schedule, subject to the terms and conditions contained therein) or lost or altered messages or

transmissions; or, unauthorized access to or theft, alteration, loss or destruction of the Customer, or its Users' or

third parties' applications, content, data, programs, information, network or systems.

11.6.

These limitations of liability shall survive failure of any exclusive remedies provided in this Agreement. For purposes

of all limitations of liability and Customer indemnification obligations set forth in this Agreement, “Telstra” means

Telstra, its Affiliates and suppliers, and its and their respective employees, directors, officers, agents,

representatives, subcontractors, interconnection service providers and suppliers.

12. Dispute Resolution

12.1.

The parties agree to try to resolve in good faith any disputes or claims arising out of or related to this Agreement.

Each party must follow the procedures in this Section 12 before starting arbitration or court proceedings (except as

provided for in Section 12.4).

12.2.

If a dispute or claim arises between the parties that cannot be resolved promptly between the Telstra contact person

and the Customer’s contact person (including a dispute regarding an invoice in accordance with Section 5.4), either

party may notify the other party of a formal dispute. The parties must each nominate a senior executive to meet

within 7 days of the giving of such notice (or another agreed period) to try and resolve the dispute.

12.3.

If the dispute remains unresolved after following the procedure in Section 12.2, either party may pursue any

available remedies.

Telstra-Customer Confidential

4.11.11

Telstra Business Services Agreement Page 8

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