Comvergence Pty Ltd  ACN 116 560 742, ABN 83 116 560 742

Level Two, 38 – 40 Garden Street, South Yarra, Victoria, 3141

Terms and Conditions (Standard Form of Agreement)

Current as at the 1st of January 2019

Definitions

“Business Hours” means the hours between 8:30am and 5:30pm Monday to Friday.
“Comvergence”, “Our”, “We” and “Us” means Comvergence Pty Ltd.
The “Customer”, “You”, “Their” and “Your” means the end user of our services.
“Customer Premises Equipment (CPE)” means any equipment owned by the Customer and located at the Customer’s premises.
“Early Termination Charge” means the remaining amount owing under the Agreement (which may be calculated by multiplying the total recurring monthly service fees by the number of months between the date of termination and the expiry of the Minimum Service Period).
“Equipment” means any equipment (including hardware or software) purchased by the Customer from Comvergence.
“Minimum Service Period” means the term of the contract order form completed by the Customer and accepted by Comvergence (or if no term is specified on the order form, then the Minimum Service Period will be deemed to be one calendar month from the date the Service(s) is activated).
“NTU” means the Network Termination Unit being located between the Customer’s equipment and the Comvergence’s network.
“Parties” means “Comvergence” and the “Customer”.
“Rate Card” means a list of services and prices associated with each service and any hardware, value added service, call charge and call out fee provided by Comvergence.
“Service” means the service(s) supplied by Comvergence to the end user.

1 General

By accepting the supply of services from Comvergence, you accept these terms and conditions. You acknowledge that the terms and conditions, including relevant charges, may be varied from time to time by Comvergence Pty Ltd giving you no less than 14 days written notice. Your continued use and acceptance of the supply of Services from Comvergence after receipt of such written notice advising of variations is deemed as acceptance of the variations to the terms and conditions.

 

2 The Service

Comvergence may use third party suppliers and contractors for the supply of services under this Agreement. Specific Terms and Conditions relating to the service(s) supplied by Comvergence will be found under the relevant Appendix headers in this Agreement.

3 Use of the Service

3.1 The Customer must provide any necessary items to make the connection to our services possible.

3.2 Purchases, Installation and configuration of Customer Premises Equipment (CPE) and or software used for connecting to the Comvergence services are the responsibility of the Customer.

3.3 Title in any Equipment purchased by the Customer from Comvergence will pass to the Customer upon full payment by the Customer to Comvergence of the purchase price of the Equipment. Risk in the Equipment will pass to the Customer immediately. Equipment purchased from Comvergence will be covered by an Equipment specific warranty. The connection, configuration and installation of any hardware and software purchased by the Customer from Comvergence will remain the sole responsibility of the Customer. Where possible Comvergence will assist in configuring and supporting the hardware/software supplied by Comvergence with your existing equipment and software.

3.4 You acknowledge and agree that Comvergence supplies the Service(s) for your use solely at the premises as kept on record. If you move premises, you must update the details with Comvergence to show the new premises as the premises for which the Service(s) will be used. If for any reason the Service(s) is not used at the premises as kept on record, Comvergence is not liable for any loss or damage suffered by the Customer if the Service(s) cannot be used.

3.5 You agree not to use, or allow another person to use, the Service:

  1. to infringe another person’s rights;
  2. in a manner that may expose Comvergence to liability;
  3. in any way that may damage any Equipment, or interfere with or interrupt the Service or any other telecommunications network, equipment, facilities or cabling controlled or utilised by Comvergence, or any other supplier of telecommunications services;
  4. in any way that may damage any property or injure or kill any person;
  5. to transmit, publish or communicate any defamatory, offensive, abusive, indecent or menacing material;
  6. to make any hoax calls, including calls to an emergency service;
  7. to violate or infringe any duty or obligation owed to any person under law; and
  8. to commit, or in relation to the commission of, an offence under any law of the Commonwealth or any of the States or Territories.

3.6 You must not supply any Service(s) for re-sale or commercial exploitation, unless otherwise agreed with Comvergence.

4  Maintenance

4.1 You agree that Comvergence may, from time to time, conduct maintenance on and to the network and infrastructure through which the Service(s) is provided. Comvergence will try to conduct such maintenance outside Business Hours, but you acknowledge that it may not always be possible for Comvergence to do so. Comvergence must provide notice of any scheduled maintenance in accordance with the applicable Service Schedule.

4.2  You agree that Comvergence will not be responsible for rectifying any fault in the Service(s) if that fault arises in or is caused by (1) a network or infrastructure of another supplier of telecommunications services; or (2) by a malfunction of or failure in your own equipment or any other infrastructure, equipment or facilities that are outside Comvergence’s reasonable control or responsibility (e.g.: for services not billed by Comvergence) where that malfunction or failure is not caused by Comvergence.

5 Charges & Billing

5.1 The Service is subject to Minimum Service Period. Unless otherwise agreed in writing or suspended or terminated in accordance with these terms and conditions, all Service(s) shall be automatically renewed on a month to month basis based at the end of the Minimum Service Period and will be billed monthly according to the period of the particular Service(s).

5.2 The Customer will remain responsible for all installation, configuration, service fees, usage, calls and excess charges incurred by the Customer using the Service(s). The invoices relating to installation and termination of a Service may be provided either at the time that the Service is installed or terminated or at a later date.

5.3 Comvergence will invoice you on a monthly basis unless otherwise agreed in writing by both Parties. Invoices must be paid within 14 days from the date of issue. Payment must be made in full by credit card, direct debit, BPAY or EFT.

5.4 With respect to installations and activation of Services, Comvergence will invoice the Customer at the time of installation or activation of each Service (regardless of whether the Service is requested individually or as part of a multiple order).

5.5 Comvergence may charge a late payment fee on any overdue amounts. In addition, Comvergence may impose an administrative fee to cover its reasonable expenses and costs (including legal fees) incurred whilst enforcing any failure or delay in your payment.

5.6 Comvergence may charge a monthly processing fee if you choose to pay by a method other than an automatic monthly payment method (being direct debit or credit card).

5.7 An Invoice may include charges for previous billing periods due to delays in receiving billing information from our suppliers.

5.8 Payments made by the Customer will be applied in the first instance to any outstanding balances and will thereafter be applied to any current balances (shown on the most recent invoice).

5.9 Comvergence may, in its discretion, notify you that the acceptance of your Order Form and ongoing use of the Service(s) supplied is conditional upon you paying a deposit (the amount of which will be specified) in advance. The deposit is payable before any Service(s) will be delivered from Comvergence. In our discretion, Comvergence may also request a credit check before processing your Order Form.

5.10 Comvergence may from time to time provide an updated Rate Card for the Service(s) to you, which will take effect 14 days after the date Comvergence issues the updated Rate Card. Your continued use of the Service(s) after receipt of the updated Rate Card is deemed acceptance of the new rates contained therein.

5.11 Comvergence may charge for work done regarding faults for Service(s). When no fault is found, a “No Fault Found Fee” is chargeable at the following rate when applicable:

Description Charge (Ex GST) (No Fault Found Fee)
No Fault Found with No Call Out Minimum $100 per hour
No Fault Found with Call Out Charges  – during business hours Minimum $150 for first hour then $100 per hour thereafter*
No Fault Found with Call Out Charges – after hours Minimum $300 for first hour then $200 per hour thereafter*

*Where onsite support is required, Comvergence may organise or request an on-site technician visit to conduct testing and/or to resolve a fault. Comvergence technicians/employees do not provide on-site services to Customers and may appoint third party contractors for which a call out fee will apply. On-site services apply to metropolitan areas for Melbourne, Sydney, Perth, Brisbane and Adelaide. Should the technician be required to travel a distance greater than 20km from any metropolitan area, additional travel fees may apply and the service will be provided at the discretion of the third-party contractor.

For any issues that arise, we will endeavour to resolve it as efficiently as possible. In order to do this we may require additional information from you. If the requested information is not provided by the Customer upon request or the Customer refuses to provide such additional information at any point during the process of resolving an issue, Comvergence will mark the issue as being resolved and an additional ‘No Fault Found Fees” may be applicable.

5.12 Where a service is requested by the Customer but is not included in Comvergence’s standard offering or paid exclusions, the decision to complete the request will be at the discretion of Comvergence. Pricing will be provided on request for these out of scope services, which will need to be approved by both parties before implementation.

6 GST

6.1 Except where this Agreement states otherwise, an amount payable by a party for a taxable supply made by another party under this document is expressed as a GST exclusive amount.

6.2 If this document requires a party to pay an amount in respect of an expense or liability (a “Reimbursable Expense”) incurred by another party (“Payee”) to a third party, the Reimbursable Expense must be net of any input tax credit to which the Payee is entitled in respect of the Reimbursable Expense.

6.3 If a party makes a taxable supply under this document, then the party liable to pay for the taxable supply must also pay to the supplier the GST payable in respect of the taxable supply at the time payment for the taxable supply is due.

6.4 A party is not obliged under this clause to pay the GST on a taxable supply to it until given a valid tax invoice for the supply.

6.5 In this clause 6, GST means a goods and services tax incurred under the A New Tax System (Goods and Services Tax) Act 1999.

7 Privacy

Personal information that Comvergence collects from you is collected for the primary purposes of enabling Comvergence to supply Service(s) to you and for the administration of your account with Comvergence; including creditworthiness assessment, billing and debt collection, in accordance with the Privacy Act 1988 (Cth) and the Telecommunications Act 1997 (Cth) any amendments. Comvergence may utilize your personal information for the purposes of marketing its services to you in the future. You agree that Comvergence may release your personal information and other information provided to us by you to:

  1. another carriage service provider if that release is required to enable Comvergence to supply the Service(s) to you; and
  2. a credit reference agency in connection with Comvergence obtaining from or supplying to that agency information about your creditworthiness; and
  3. you authorise Comvergence to use any information provided by you for Comvergence’s own marketing purposes together with your intellectual property and company logos for such purpose.

8 Period of Agreement

This Agreement shall commence on the date your Order Form is accepted by Comvergence and shall continue until terminated in accordance with these terms and conditions. The Minimum Service Period shall commence on the date the Service is activated. If during the Minimum Service Period this Agreement is terminated by you or is terminated by Comvergence in accordance with clauses 9.1 or 9.2, the Customer will be liable to pay to Comvergence the Early Termination Charge.

9 Service Suspension and Termination

9.1 Comvergence may terminate this Agreement by providing the Customer with not less than 30 days written notice. The Customer may terminate this Agreement at any time by giving Comvergence at least 30 days written notice. If termination is made by either Comvergence or the Customer during the Minimum Service Period, the Customer will be liable for the Early Termination Charges (unless termination is made by Comvergence for reasons other than those listed in clause 9.2).

9.2 Comvergence may by written notice immediately suspend supply of the Service(s) to you and/or terminate this Agreement if:

  1. You fail to pay by the due date any charges payable for the Service(s) and fail to rectify that default within 7 days of receiving from Comvergence a written notice requiring you to do so.
  2. You are declared bankrupt.
  3. You pass away.
  4. A receiver, liquidator, provisional liquidator or administrator is appointed or an encumbrancer takes possession of your assets and that appointment continues for a period of 5 Business Days, or if you enter into any arrangement with any of your creditors or any class of such creditors or if you cease to carry on business.
  5. Comvergence has reasonable evidence that you have breached clause 3.5 of this Agreement.

9.3 Early Withdrawal of Order Form Prior to Activation

If the Customer’s Order Form is withdrawn before activation of the Customer’s Service(s), the Customer will be charged at the prescribed fee depending on the work already completed by different carriers and the degree of the installation that has already been covered (costs could vary between $2.500 to $10,000 plus GST based on the amount of work carried out before activation occurs).

9.4 Relocation

If a Customer chooses to relocate an existing fibre service during the Minimum Service Period, relocation costs may vary from $2,500 to $10,000 plus GST per Service. Comvergence does not provide any guarantee that a Service may be relocated to a new site during a Minimum Service Period. In the event that Comvergence determines that relocation to a new site is not possible, the Customer will be liable for the Early Termination Charges. In the event that Comvergence determines that relocation to a new site is possible, the Customer will be liable to pay the set up cost and may be required to extend the Agreement for a new term.

10 Liability

10.1 Comvergence does not warrant that the Service(s) will be uninterrupted or fault free.

10.2 The Customer agrees to release Comvergence from any indirect or consequential loss, costs, or damage (including, but not limited to, loss of profits, loss of revenue, and expectation loss) arising out of this Agreement, including, but not limited to, Comvergence’s supply of (or failure to supply) the Service(s), whether arising as a result of any act, omission or negligence of Comvergence, its third party contractors or otherwise.

10.3 To the maximum extent permitted by law, Comvergence limits its liability to you for any liability which may arise out of or in relation to this Agreement, (whether based in contract, negligence, or statute) to an amount in aggregate for all claims which is the amounts paid by the Customer for the Service(s) under this Agreement.

10.4 You agree to indemnify us against any loss or damage Comvergence may suffer as a result of your use or attempted use or any use of the Service(s).

11 General

11.1 Headings are for ease of reference only and not as an aid to interpretation.

11.2 The Customer may not transfer its rights or liabilities under this Agreement without Comvergence’s written consent (which consent shall not be unreasonably withheld). The Customer must notify Comvergence of any change in ownership. The Customer will be liable for all costs of transfer (if any).

11.3 The Customer acknowledges that where Comvergence requires the consent of the Customer to undertake certain actions, then provided Comvergence acts in good faith, Comvergence may rely upon the authority of any employee of the Customer who warrants that he or she is authorised to provide that consent on behalf of the Customer.

11.4 Comvergence may set off or apply any credit balance in any of your accounts with any amounts owed by Comvergence to you.

11.5 Failure by either party to exercise or enforce any right conferred by this Agreement will not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of the right or of any other right on any later occasion.

11.6 If part or all of any clause of this Agreement is illegal, invalid or unenforceable it will be read down to the extent necessary to ensure that it is not illegal, invalid or unenforceable or if this is not possible, the affected clause or part will be severed from this Agreement, the remaining provisions of this Agreement will continue to have full force and effect and the parties will attempt to replace that severed part with a legally acceptable alternative clause that meets the parties’ original intention in relation to the subject matter severed.

11.7 The Customer agrees to comply at all times with Comvergence’s Fair Use policy which can be found at www.comvergence.com.au and may be varied from time to time. If a Customer fails to comply with Comvergence’s Fair Use policy, and has received 30 days’ notice in which to rectify the breach but fails to do so, Comvergence reserves the right to change or suspend the Service provided to the Customer.

11.8 The Agreement constitutes the entire agreement between the parties as to its subject matter and supersedes any prior understanding or agreement between the parties (including any Memorandum of Understanding) and any prior condition, warranty, indemnity or representation imposed, given or made by Comvergence.

11.9 The Agreement is governed by the laws applicable in the State of Victoria and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that State.

Appendix A – VoIP/SIP Services

12.0 Service Definition
 

  1. Comvergence SIP allows you to make and receives calls over the Internet using a standard data service. The SIP service may be configured to work with a PBX, IP Handset, VoIP Gateway, ATA or soft phone.
  2. Cloud PBX is a service where the call platform and PBX features are hosted on the Comvergence network. End users typically connect via a Comvergence private voice service or over a standard internet service in order to receive and make phone calls.
  3. Recording Service – Call recording of any incoming or outgoing VoIP phone call may be recorded and stored for 30 days. Call recording may also be archived as an additional service.
  4. Conference facility – A facility where a geographic number is provided to a Customer to allow the Customer to conduct a private conference where up to 10 external users can dial into the dedicated phone number.
  5. Handset Rental – IP Handsets are provided as part of the Cloud PBX service and are maintained for the duration of the Agreement.
  6. Fax to Email – A fax service that allows you to receive faxes by email to a standard Australian phone number. The fax is received to your nominated email address as a PDF document.
  7. Email to Fax – An email with a standard word or PDF attachment may be emailed to a standard Australian phone number and delivered as a standard fax to the appropriate machine.
  8. Multiline – a bundled Comvergence VoIP service that includes a private data circuit and a SIP service combined to provide a security VoIP line with Quality of Service.
  9. Voice circuit – A private dedicated service that connects to the Comvergence network and is solely used for the supply of VoIP services.
  10. VoIP handsets can be provided on a monthly rental arrangement and are the property of Comvergence for the duration of your Agreement. Alternatively, they can also be purchased from Comvergence. They can be used for making and receiving calls. Each handset comes with one direct indial number and extension number.

12.1 Numbering

Issue of Numbers (Geographical Based Numbers)

  1. Comvergence may issue a Number to the Service and vary that Number in accordance with any national regulatory policy on numbering made pursuant to the Telecommunications Act.
  2. The selection, issuing and use of Numbers is governed by the Authority’s numbering plan and directions relating to numbering, and you agree that you must accept and comply with the requirements of the Authority or any other body from time to time that administers or oversees the allocation of Numbers.
  3. Comvergence may be required by law to withdraw, suspend or reassign a Number assigned to you, and Comvergence will not be liable to you for any loss or damage incurred or sustained by you if Comvergence is required to do so.

12.2 Local number portability (“LNP”)

You acknowledge that:

  1. Comvergence may not be able to provide local number portability for existing number(s), which you use for telecommunication services obtained from other carriers or carriage service providers. Comvergence provides no guarantee that we can port your telephone number(s) from your current service provider. Your current service provider may reject this port request if the information you provide is incorrect or does not match the data held by them. In this case you authorise Comvergence to correct the information and resubmit the request to port your telephone number or dispute the rejection by your current service provider. A porting request may also be rejected for other reasons as stated in the LNP Industry Code.
  2. Some numbers allocated by Comvergence may not be able to be ported out from Comvergence. Comvergence is not obliged to procure for and/or provide to you any particular number allocated or assigned to you by another carrier or carriage service provider. Comvergence will not be liable to you for any loss or damage incurred or sustained by you if such number is not, or is no longer, available or if there has been any outage caused by LNP.
  3. You must not deactivate your service with the other service provider, until after the number is ported to Comvergence.
  4. You can only withdraw your request for Number portability before the electronic cut-over request is received. You will be responsible for any costs involved with relation to the emergency porting back of a number to the existing service the number(s) belonged to.
  5. Comvergence does not warrant that the telephone number(s) will be ported within any specified timeframe. Porting Hours of operation are 9am to 5pm AEST/AEDST Monday to Friday, excluding national public holidays. Cut-over can only be initiated at least 3 business days after the porting notification advice is sent by Comvergence to your current service provider. If a port request is rejected and needs to be resubmitted, cut-over cannot take place for at least another 3 business days after the request is resubmitted.
  6. Only your telephone number(s) will be transferred to Comvergence. This may result in the loss of any value-added services that are associated with the service provided by your existing service provider (e.g. Voicemail and PSTN line).
  7. If you wish to port your telephone number(s) from Comvergence to another service provider, then you must contact the other service provider.
  8. Comvergence reserves the right to charge a fee for porting your telephone number(s) to or from Comvergence.
  9. Local Number Portability does not guarantee that you can keep your telephone number(s) if you move to a different geographic location or Standard Zone Unit as defined within the Telecommunications Act 1997 (Cth).
  10. By porting telephone number(s) to Comvergence, the service associated with that telephone number is disconnected from the existing service provider’s network and may result in finalisation of the account for that service.
  11. By porting the telephone number(s) to Comvergence, any DSL/Spectrum Sharing service associated with the telephone number(s) will be disconnected and may result in finalisation of the DSL Spectrum Sharing account for that service.
  12. You may have outstanding contractual obligations and costs owed to your current service provider, which may include early termination fees and porting fees. Comvergence is not liable for any such costs.


12.3 Numbering and Call Charges

You acknowledge that:

  1. A local call charge will only apply to other calls made to the area where your geographic number is located or the adjacent call zone.
  2. People who call you from outside the SZA (Standard Zone Area) of your Number may be charged a timed call from their telecommunications carrier. The Standard Zone Area is the geographic location of your number and where callers from the same zone area can call you for a local call charge.
  3. When you move outside the geographic area or the SZA (Standard Zone Area) of where your Number is located, Comvergence may be required to change your Number to the area where your service is now located.

12.4 Caller line identification

You acknowledge that when:

  1. a call is made using a Service, the CLI may automatically be sent to the telecommunications equipment of the person receiving the call; and
  2. a call is received using a Service, the CLI of the calling party may be displayed or recorded by the equipment, unless CLI is barred by the person making the call. You must comply, and use reasonable endeavours to ensure that any third parties using the Service(s) comply with applicable privacy and other guidelines as well as industry codes of practice on the use and capture of CLI.
  3. Internal Cloud PBX Extensions without a Direct Indial Number will have the directory number CLI of their Cloud PBX sent to the Network, except from within the Cloud PBX (e.g. Between Extensions).
  4. Services without a geographic number (Outbound/Call Termination Services Only) will not have their CLI sent outside the Comvergence Network regardless of it being blocked or allowed.

12.5 Integrated Public Number Database

You acknowledge that Comvergence is obliged by law to supply specific customer information with respect to any person who is allocated a Number under clause 11.1 for the purposes of the Integrated Public Number Database. The information held in this database may only be provided for an approved purpose to approved organizations (such as directory information organisations) or for the assistance of emergency service or law enforcement organizations. If you require your customer information that appears on that database to be altered, you must request such alteration in writing.

12.6 Service availability, quality

The parties acknowledge that it is technically impracticable for Comvergence to guarantee that the Service will be available in each area, that capacity will be available at all times to make and receive calls, or that the Service will be free from faults or errors. Comvergence undertakes to provide the Service using all the reasonable care and skill.

12.7 Reliance on other networks

You acknowledge that the Service may rely upon the operation of Supplier Networks operated by other carriers and services provided by other carriage service providers (such as the customer’s internet service). You further acknowledge that Comvergence is unable to guarantee the operation of and the use of the service through Supplier Networks or other carriers and carriage service provider’s services. Comvergence will not be responsible or liable for any failure of Service(s) caused by another network or service beyond the control of Comvergence.

12.8 Fault reporting

  1. Comvergence will provide a fault reporting service between the hours of 8:30 a.m. and 5.30 p.m. AEST, on Business Days.
  2. Where a fault is reported (irrespective of whether you reported it), you agree to provide all necessary assistance to enable the location and repair of any fault which arises in the Comvergence Network or the Supplier Network with which the Comvergence Network is interconnected.
  3. Where Comvergence determines that there is a fault within the Comvergence Network, it is responsible for correcting that fault. Comvergence is not responsible for:
  1. any fault which is within a Supplier Network of an interconnected Supplier, although Comvergence will notify that Supplier of the fault and request that it be corrected promptly; or
  2. any fault which is caused by your equipment, your internet service provider (if not Comvergence) or the Premises, but will, where possible, advise you of that fault and its probable cause and location.

12.9 Maintenance

  1. Without limiting any clause in this Agreement, you agree that Comvergence may from time to time, conduct maintenance on and of the network and infrastructure through which the Service is provided. Comvergence will try to conduct such maintenance outside Business Hours, but you acknowledge that it may not always be possible for Comvergence to do so.
  2. You agree that Comvergence will not be responsible for rectifying any fault in the Service if that fault arises in or is caused by a network or infrastructure of another supplier of telecommunications services, your own equipment or any other infrastructure, equipment or facilities that are outside Comvergence’s reasonable control or responsibility.

12.10 Replacement Handset Fees

Handsets rented by the Customer from Comvergence need to be returned undamaged and in good working condition within 30 days after the cancellation or termination date of Service(s). Handsets are required to be returned in appropriate packaging. Handsets that are damaged or not returned will incur a Handset replacement fee’ (as set out below).

Replacement Handset Fees:

Description Once Off Charge, per handset (Ex GST)
Yealink W60 Wireless Handset $170.00
Yealink T42 HD IP Handset $170.00
Yealink T46 HD Colour IP Handset $250.00
Yealink T48 HD IP Handset $330.00

12.10.1 After the initial 36 month contract term

If you wish to renew your contract for an additional 36 month term, Comvergence will replace all handsets with the appropriate updated handsets. At the end of the 36 month contract, there will be no changes to monthly service fees and the contract will continue on a month to month basis. Alternatively, if you wish to provide notice after the minimum term of 36 months then a  30 day written cancellation notice is required, after which you must return all handsets. See section 8.1 for further information.

12.10.2 Additional Extensions

For additional extensions that do not require a handset, the cost per extension will be applied to the duration of the contract and will be charged from the date of activation.

12.10.3 Additional Handsets

  1. If any additional handsets are required during the first 18 months of any Agreement term then new handsets can be provided. This will be added to the standard monthly fee for the remaining length of the contract and will be charged from the date of installation per handset.
  2. If the initial contract period exceeds 18 months, up to five additional handsets can be added without requiring a new 36 month contract. In this instance a standard monthly fee per handset will apply. However, if you require six or more handsets, a new 36 month contract must be applied for with respect to these handsets, which will commence from the date of installation per handset.

 12.10.4 Handset Replacement

If during the contract term, a handset is found to be faulty and is out of the warranty period, it will be replaced with a new or refurbished handset of the equivalent model at Comvergence’s discretion. If the faulty handset is found to have been damaged intentionally or though customer negligence, a replacement fee will be charged. Please see clause 12.10 ‘Replacement Handset Fees’ for the applicable charges.

12.11 Acknowledgement

12.11.1 No warranties or guarantees

You confirm that Comvergence does not warrant, and has not represented, that the Service(s) is or will be free of errors, defects or interruptions, or that it will be available at all times. You acknowledge that you will use the Service(s) for the purpose of making voice calls. Comvergence does not guarantee the service for the transmission of data (such as internet connections), fax, EFTPOS, HiCAPS, back to base alarms and other monitoring systems using phone lines. Comvergence Cloud PBX plans are not available for telemarketing, call centre function or similar uses. You acknowledge that you may not be able to use the Service(s) if electricity or an active online Internet connection is not supplied to the equipment used and is unable to subsequently connect to the service.

12.11.2 Access to Emergency Services and Priority Services

Without limiting the Service(s) description, you acknowledge that the Service(s) relies on a supply of electricity and a current and active Internet service that is able to connect to the Comvergence Network. The service may not enable you to connect to emergency services if that supply of electricity fails, there is a fault with your Internet service that connects you to our service or your Internet connection is not active. Therefore the Service(s) is not a full replacement or substitute for a standard telephone service and a secondary phone service should be available should you need to call Emergency Services. The Service should not be used, as a first choice, to make an emergency call. Comvergence is under no liability if you are unable to access emergency services from the service at any time.

You are required to ensure that our records as to the location of the Service(s) are up-to-date as calls to emergency services rely on this information and unless indicated the service should not be used as a portable phone solution. You may need to give your Information to the operator (including full address and telephone number details) each time you make a call to emergency services.

Appendix B – Data Services

13.1 Service Definitions

  1. 4G Service is a wireless service that uses 4G mobile base stations for connectivity. It is used as a temporary and/or backup internet or VoIP solution.
  2. ADSL2+ is a consumer grade broadband internet over standard copper phone line. The further you are from the exchange, the less bandwidth and the lower connection speed applies.
  3. EFM (Ethernet over First Mile) is a more reliable version of ADSL as it uses multiple copper pairs.
  4. EoC (Ethernet over Copper or E-Line) is a business grade internet solution using copper phone lines. It is similar to EFM except that it is a business grade product with a SLA.
  5. Ethernet Services – Data service provided from the NTU to customer’s internal network over ethernet Cat5 or Cat6 cable.
  6. Fibre is High Fibre-Optic speed internet ranging from 10Mbps to 10Gbps using light technology to transmit data.
  7. NBN (National Broadband Network) is a government driven initiative to roll out high speed internet and will replace ADSL. It uses a mixture of fibre and the existing copper wire network. Fibre is usually installed up to the curb then connected via copper cabling into the premises.
  8. Wireless or Wi-Fi is where the Internet is accessed from wireless access points which are connected to an internet switch or router via ethernet cable. Wi-Fi allows access to a network from a mobile device such as a handheld phone or laptop.
  9. Data Usage Allowance is the amount of data (measured in gigabytes) that is allocated for use in any monthly period. This is normally controlled by having additional tariffs if the allowance is exceeded or by reducing data speed.
  10. Managed Buildings is where Comvergence supplies a dedicated Fibre or similar service to the MDF location and customers connect to this service via a DSLAM or network switch controlled by Comvergence. Data speeds range from 10Mbit to 1Gbit depending on service availability per site.
  11. PSTN Telephone service means the public switched telephone network (typically using analogue copper lines).

13.2  Comvergence Internet

Any IP Addresses assigned to you by Comvergence remain the sole property of Comvergence, and may be changed or revoked by Comvergence at any time at our discretion and are not transferable.

13.3 Data Charges

13.3.1 The quantity of Data Transferred by a Service is measured as the total number of bytes passing from the Internet through to your service. All data quantities are measured in megabytes or gigabytes (1 Mbyte = 1,000,000 Bytes, and 1 Gbyte = 1,000,000,000 Bytes).

13.3.2 Data is only metered for traffic coming from the Internet to your Internet Service (Downloads).  We reserve the right to charge for uploads if they are calculated to be greater than downloads. Excess usage over your monthly data allowance is charged at the rate of 10c per gigabyte (GB).

 13.4 Managed building NTU

Managed building NTUs are the property of Comvergence and must be returned by the customer after providing notice of termination or a $400.00 fee will be incurred by the Customer.

13.5 NTUs for data services

NTUs that have been provided for the data services by the carrier remain the sole property of the carrier. They must be returned to Comvergence who will return it to the carrier at the termination of the Service(s). If it is not returned to Comvergence, a $500.00 fee will be incurred by the Customer.

Appendix C – Hosted Managed Firewall Service

14.0 Service Definitions

  1. Firewalls

The Managed Firewall is a security device that is used to offer multiple protection for the appropriate internet service. The managed firewall can be configured either as a dedicated or shared firewall.

Hosted Managed Firewall is designed to help protect your network from unauthorized access or malicious attacks and threats. There are a number of options when selecting a firewall which can be commissioned in our virtual environment or may be deployed as a single or dual physical hardware device.

Dedicated Firewalls are firewalls that are dedicated for the sole purposes of one entity and has no shared resources within its setup on a software and hardware level (excludes Storage Access Network resources if setup virtually).

Dedicated Firewall Appliances include high availability across two separate appliances and are delivered over a redundant network design.

Shared Firewalls (appliance or virtual) may be configured for multiple clients where resources are shared either on a physical level or within the virtual environment where shared resources are available. You acknowledge that virtual and shared appliance options are shared by other Comvergence clients in separate administrative virtual domains.

  1. Unified Threat Management (UTM) features can be provided as additional services on the appliance firewall solution. They include antivirus, web filtering and intrusion prevention system. A variety of UTM features can be purchased.
  2. Application Control provides the ability to control which applications are allowed into your network. It is available for the physical shared and Dedicated Firewall (physical) options only.
  3. Fortianalyzer Reporting is included with the Dedicated Firewall Appliances and optional for the Shared Firewalls appliance. It provides historical reporting functions on firewall data traffic and report templates that can be scheduled or run on demand. Included in the service are standard reports only and 10Gbit of log data for storage. Additional data storage may be purchased from Comvergence.
  4. Additional Firewall Features include 2 Factor Authentication using Fortitoken with the maximum being 12 for Shared Firewall (virtual), 25 for Shared Firewall (physical) and 100 for Dedicated Firewall (physical). SSL VPN remote access is $10 for each user setup. The maximum number of concurrent SSL VPN connections are 12 for Shared Firewall (virtual), 25 for Shared Firewall (physical) and 100 for Dedicated Firewall (physical).


14.1 Fault reporting

  1. Comvergence will provide a fault reporting service between the hours of 8.30 a.m. and 5.30 p.m. AEST, on Business Days.
  2. Where a fault is reported (irrespective of whether you reported it), you agree to provide all necessary assistance to enable the location and repair of any fault which arises in the Comvergence Network or the Supplier Network with which the Comvergence Network is interconnected.
  3. Where Comvergence determines that there is a fault within the Comvergence Network, it is responsible for correcting that fault. Comvergence is not responsible for:
  1. any fault which is within a Supplier Network of an interconnected Supplier, although Comvergence will notify that Supplier of the fault and request that it be corrected promptly; or
  2. any fault which is caused by your equipment, your internet service provider (if not Comvergence) or the Premises, but will, where possible, advise you of that fault and its probable cause and location.

14.2 Maintenance

  1. For the duration of the service contract, we will at our discretion update the firewall with any changes (including firmware and software) which the manufacturer of our firewall recommends. Comvergence will try to conduct such maintenance outside Business Hours, but you acknowledge that it may not always be possible for Comvergence to do so.
  2. You agree that Comvergence will not be responsible for rectifying any fault in the Service(s) if that fault arises in or is caused by a network or infrastructure of another supplier of telecommunications services, your own equipment or any other infrastructure, equipment or facilities that are outside Comvergence’s reasonable control or responsibility.

14.3 Support Scope
All Managed Firewall Services are comprised to support the following standard features.

  1. Policies for source and destination traffic (packet filtering);
  2. Port forwards;
  3. Traffic Shaping; and
  4. Network Address Translation (NAT).

Support for the following Firewall Services is in scope if purchased as an additional feature or included in your firewall solution.

  1. Application Level Control (Physical shared or dedicated only);
  2. LDAP/Active directory integration;
  3. SSL VPN for Remote access at a setup of $10 per request;
  4. FortiToken for 2 Factor Authentication on Android or Apple mobile devices;
  5. IP Sec VPN Tunnel;
  6. UTM Web Filtering (Physical dedicated only);
  7. UTM Intrusion Prevention System (Physical dedicated only);
  8. UTM Antivirus (Physical dedicated only); and
  9. Standard Reporting with 10GB log storage (Physical shared or dedicated only).

Any other services are excluded or out-of-scope unless agreed to by Comvergence (at its sole discretion) and may incur additional charges.

14.4 Acknowledgement

  1. You may acknowledge that Comvergence cannot accept responsibility for a security breach or the impact of a security breach even where it is caused or contributed to by a failure of the Firewall Service.
  2. Unless otherwise terminated or suspended in accordance with the Agreement, the Hosted Managed Firewall Service shall be provided for a Minimum Service Period of 36 months from the date of activation.
  3. Comvergence will not be liable for a failure of software or customer equipment to function properly because of this Firewall Service.
  4. Comvergence will not be liable for any additional security and anti-virus services which is not part of the Comvergence firewall.
  5. Comvergence will not be liable for a failure (or the presence of errors) of firmware and software updates which Comvergence use, as we rely on the manufacturer of our firewall to provide all updates.

Appendix D – Co-Location Services

15.0 Service Definitions

  1. Co-location (colo) is a data center facility in which space and electricity can be rented and/or hosted for servers and other computing hardware. Comvergence uses NextDC as their data centre provider and any other data centre facility is outside the scope of this Agreement.
  2. Cross Connect is the physical connection which connects two separate data cabinets in the same data centre facility. These are built with single mode optical fibre (SMOF) and Cat 6 Ethernet cables.

15.1 Physical Security
To physically access your equipment at NextDC, a nominated employee will be required to conduct background checks and formal induction training. This is for compliance with the data centre facility’s security, safety and other general procedures.  Persons that have not received induction training can visit the data centre facility under escort supervision from a formally inducted employee only, provided pre-booking arrangements have been made in accordance with the data centre facility’s general procedures.

15.2 Access to data centre cabinet

Access to the data centre cabinet is provided for your equipment only and any interaction of equipment other than your own is strictly prohibited and may result in termination of your contract under Clause 9.

15.3 Allocation Space
Comvergence can offer dedicated space such as Full Rack Cabinet or Shared cabinet spaces from 1 Rack Unit (RU) upwards.

  1. A minimum of a single 100Mbps dedicated ethernet port will be provided by Comvergence whilst the allocated bandwidth will be in line with your contract.
  2. A shared cabinet requires that you do not utilise more than your allocated physical RUs in your data centre cabinet. Comvergence may give you notice to rectify any allocation breach within 7 days and/or charge you for the additional RUs utilised from the date that the breach is known to have occurred.
  3. If you have opted for a Full Rack cabinet, it is your responsibility to provide your own network switch for IP connectivity.

15.4 Adhering to NEXTDC rules and regulations
You must comply will all of the data centre facility’s applicable policies, procedures and requirements. A copy of the Master Services Agreement for Next DC will be supplied or can be provided on request.

15.5 Consumer Price Index.  (Colo only)
The yearly Increase will be a 3% increase per year or CPI (whichever is greater) based on the contract start date.

15.6 Cross Connect Fees
A once off installation fee for cross connects applies, as does a monthly recurring service fee. Comvergence will commence its billing of the cross connect as of the installation date.

15.7 Power Allocation
You must ensure that power utilisation does not exceed your power allocation limit in KW provided by Comvergence. If the power utilisation exceeds your allowed limit, Comvergence may give you notice requiring you to rectify the breach within 48 hours or to upgrade your power allocation limit if applicable.

If your power utilisation is exceeded on more than two occasions in any 60 day period, Comvergence may, in its sole discretion, either

  1. increase your power allocation and your monthly recurring service fee applicable to with the power allocation will increase, or
  2. if the breach is incapable of being remedied, Comvergence reserves the right under clause 7 to terminate your contract.

15.8 Co-located Equipment
For the avoidance of doubt, you are responsible for your own hardware and software which resides in the data centre facility. Comvergence accepts no responsibility and will not be liable for any damage or data loss whatsoever.

15.9 IP Connectivity
Comvergence will supply the appropriate IP connectivity as specified in your contract (ranging from 100Mbps to 10Gbps) to the cabinet where your equipment resides.

Appendix E – Value Added Services

16.0 Service Definitions

  1. Domain Name Services are available from Comvergence. We provide for the registration, renewal and maintenance of Domain Names.

Appendix F – 13/1300/1800 Services

17.0 Service Definition

The Comvergence 13/1300/1800 Service enables business customers to have a nation-wide number for inbound calls. 13/1300 numbers are not a free phone service but rather provide a flat rate charge for the caller; while you are charged per minute for the calls.

1800 numbers provide free calls from a local landline but not from a mobile service.

17.1  You acknowledge and agree that:

  1. You must specify on the Order Form if the Service is to be used regularly as a High Calling Service.
  2. If the Customer’s Service causes any harm to Comvergence’s network due to a High Calling Service that was not specified on the Order Form, then Comvergence reserves the right to disconnect the Customer without notice until such harm is no longer a threat to Comvergence’s network.
  3. You have no right, title or interest in any number provided as part of the Service. However, where Comvergence ceases to be your service provider, Comvergence agrees to transfer your Service to another provider.

Appendix G –PSTN Rebill Services

 18.0 Service Definition

Public Switched Telephone Network (PSTN) Services are provided by Telstra and are Packaged and Rebilled to your Comvergence Account. PSTN is a standard analogue connection and supports voice, facsimile, EFTPOS or broadband Internet.

18.1 Rebill Services PSTN

  1. Connection of New service:
    We will connect the Service during our normal business hours (8.00am to 5.00pm (local time)), excluding weekends and public holidays. The Comvergence Telstra Rebill service must be provisioned through Comvergence and Telstra’s standard installation. Charges may apply where appropriate.
    Telstra is responsible for the supply of Telstra services to you. The provision of Telstra services to you is governed by terms and conditions imposed by Telstra under a Standard Form of Agreement (“Telstra SFOA”) in relation to the relevant Telstra service. Comvergence is not a party to that Telstra SFOA and is not responsible or liable for any failure by Telstra to provide any Telstra service to you.
  2. Amendments to Rebill Services
    If requested, we will make amendments to the Service during our normal business hours (8.00am to 5.00pm (local time)), excluding weekends and public holidays. These amendments to the Service will incur additional Charges, which we will advise you of when you request an amendment.
  3. Service Availability
    The availability of a Telstra service is governed by the SFOA in relation to that service. Comvergence is not a party to that Telstra SFOA and is not responsible or liable for any failure by Telstra to make that service available to you or to provide maintenance in respect of that service. Comvergence will invoice you for Telstra services used by you, as notified to Comvergence by Telstra.
  4. Changes, Additions, Moves and Fault Reporting
    All Changes, Additions, Moves and Fault Reporting for Rebilled services are handled by Comvergence.
  5. Billing
    Unless the rate of the Rebilled service is specified in the Rate Card, Comvergence will Rebill the Telstra Charge as defined in the Telstra SFOA. All Billing Disputes for Rebilled services provided by Comvergence must be directed to Comvergence. You will be charged for all calls from the specified service numbers (whether such calls were made with your authority or not) based on the rates specified on the Rate Card or in the Telstra SFOA. Comvergence may from time to time provide to you updated Rate Card, which will take effect 14 days after the date Comvergence issues the updated Rate Card. Your continued use indicates acceptance of the updated Rate Card. Any changes to charges that are passed on from Telstra will be available in the Telstra SFOA or by contacting Comvergence.
  6. Authority and Transfer of Services
    Upon agreeing to Transfer your service to Comvergence, you authorise Comvergence to sign on your behalf any agreement for the transfer of these services from your current provider. You will remain liable for any charges from your existing provider until the service is transferred to Comvergence. It can take up to 10 Business Days to transfer your service to Comvergence.