Version Date: 20 September 2023
Annexure A – Connectivity Services
1. Application
This Annexure A only applies where Connectivity Services are to be supplied by Kallipr under the Quote.
2. Additional Definitions
The following definitions apply to this Annexure A:
(a) Acceptable Use Policy means any acceptable use policy applicable to the Connectivity Services from time to time.
(b) Connectivity Data means:
(i) data owned or supplied by the Customer to which Kallipr is provided access to in connection with the Connectivity Services; or
(ii) data generated, compiled, arranged, or developed by either the Customer or Kallipr in connection with the Connectivity Services that relates to the Customer or its receipt of the Connectivity Services.
(c) Early Termination Charges means any charges, liabilities or costs imposed by a third party supplier on Kallipr for early termination of the Connectivity Services as advised by Kallipr from time to time.
(d) Service Levels means the service levels set out in the Quote to which Kallipr warrants that the Connectivity Services will perform (if any), as amended from time to time.
(e) Third Party Supplier Terms means the terms attached to these Terms as Annexure B.
(f) Usage Limit means any usage limit imposed by Kallipr or the third party supplier in connection with the Connectivity Services.
3. General
(a) Kallipr will provide the Connectivity Services in accordance with the terms of the Quote and the Third Party Supplier Terms. The Customer acknowledges that the Connectivity Services will be coordinated by Kallipr but will be provided directly by a third party supplier.
(b) Kallipr must provide the Connectivity Services:
(i) with reasonable care and skill;
(ii) using suitably qualified and experienced personnel;
(iii) to meet or exceed the Service Levels;
(iv) to comply with any Specifications; and
(v) to comply with all applicable laws and regulatory requirements.
(c) The Customer acknowledges and agrees that:
(i) it must pay the Price for the Connectivity Services regardless of its actual usage, or any deactivation, of the Connectivity Services;
(ii) the Price for the Connectivity Services will not be calculated on a pro-rata basis and the full Price must be paid by the Customer for the full month in which the Connectivity Services are activated regardless of the date the Connectivity Services are first activated during that month;
(iii) it must comply with the Third Party Supplier Terms;
(iv) the third party supplier may withdraw its consent to the Customer receiving the Connectivity Services at any time and Kallipr shall not be responsible for any such withdrawal;
(v) any unused usage allowance in connection with the Connectivity Services will expire each month; and
(vi) to the extent that the Customer usage of the Connectivity Services exceeds any Usage Limit, the Customer must pay Kallipr for such additional usage costs on demand.
(d) The Customer acknowledges that the Connectivity Services:
(i) will be coordinated by Kallipr but will be provided directly by a third party supplier;
(ii) do not include transition or disengagement services. To the extent that the Customer requests Kallipr to provide any transition services or disengagement services, these will be subject to agreement of the parties (including as to Price); and
(iii) are and remain at all times the property of the third party supplier and nothing in these Terms affects the third party supplier’s ownership of the Connectivity Services.
4. Customer’s obligations
The Customer must:
(a) comply with the Acceptable Use Policy in using the Connectivity Services;
(b) comply with all applicable laws, regulations and rules in using the Connectivity Services;
(c) ensure that any account details provided to or created by the Customer in connection with the Connectivity Services are kept secure from unauthorised access or use;
(d) provide all necessary information required by Kallipr or the third party supplier to allow them to complete the Connectivity Services in a timely fashion and as otherwise reasonably required by the third party supplier;
(e) carry out agreed preparations to the Customer’s equipment and take other steps reasonably requested by Kallipr to allow Kallipr or its third party supplier to perform the Connectivity Services;
(f) review information, make decisions and, on an ongoing basis, provide Kallipr with the information necessary for Kallipr or its third party supplier to perform the Connectivity Services;
(g) provide Kallipr with true and relevant information regarding the Customer and its business;
(h) agrees to comply with and accepts any Third Party Supplier Terms;
(i) acknowledges and agrees that:
(i) the third party supplier may require any data used in connection with the Connectivity Services to be disclosed outside of Australia for the purpose of providing such Connectivity Services and the Customer consents to such disclosure by the third party supplier;
(ii) while the third party supplier will provide the Connectivity Services consistent with prevailing industry standards in a manner that endeavours to minimise errors in and interruptions to the Connectivity Services, the Connectivity Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance or because of other causes beyond the third party supplier’s control; and
(iii) the Customer is responsible for maintaining back-up services to provide coverage during any interruption of the Connectivity Services;
(iv) the third party supplier may upon reasonable request, access and inspect the Customer’s records, data and other information to confirm the Customer’s compliance with the Third Party Supplier Terms; and
(v) the third party supplier may vary the Third Party Supplier Terms (as notified by Kallipr in writing from time to time) and Kallipr takes no responsibility for any such variations to the Third Party Supplier User Terms;
(j) not to do anything to damage the reputation of, or otherwise bring into disrepute, the third party supplier or the Connectivity Services;
(k) consent to the third party supplier contacting the Customer in the normal course of their business, including for purposes unrelated to the Connectivity Services;
(l) consent to use and disclosure of personal information by the third party supplier in connection with the Connectivity Services and otherwise in accordance with the third party supplier’s privacy policy, as amended from time to time; and
(m) indemnify Kallipr against all loss, damage, liability, reasonable costs or expenses (including legal costs and expenses) which is suffered or incurred as a result of or in connection with the Connectivity Services.
5. Prohibitions on use
The Customer must not use the Connectivity Services:
(a) in any manner that exceeds the Usage Limit or that infringes the Intellectual Property Rights or any other rights of any third party;
(b) for resale, resupply or sharing to or with any third party;
(c) for timesharing or service bureau purposes or otherwise for the benefit of a third party; or
(d) in any manner that is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libellous or similarly offensive.
6. Connectivity Data
(a) As between the parties, title to, and all Intellectual Property Rights associated with, the Connectivity Data vests in the Customer upon creation, and Kallipr absolutely and unconditionally assigns to the Customer, all Intellectual Property Rights associated with the Connectivity Data that vests in Kallipr immediately upon creation, free of all encumbrances and third party rights.
(b) The Customer:
(i) grants to Kallipr a royalty-free, non-exclusive, non-transferable licence for the Term to use the Connectivity Data only to the extent required to perform its obligations under a Quote. This licence may be sublicensed by Kallipr for the purpose set out in the foregoing to the third party supplier, but otherwise does include the right to grant a further sub-licence to any other party, except with the prior written consent of the Customer which must not be unreasonably withheld; and
(ii) agrees and acknowledges that Kallipr and the third party supplier:
(A) are not responsible for the back-up of any Connectivity Data in connection with the Connectivity Services; and
(B) will not be liable to the Customer for any loss, destruction or other damage caused by the Customer failing to back-up the Connectivity Data.
7. Suspension
(a) Provided that Kallipr gives the Customer reasonable prior written notice (and subject always to clause 7(b) of this Annexure A), the Customer acknowledges that access to the Connectivity Services may be suspended by Kallipr if the Customer materially breaches this Annexure A.
(b) Kallipr will not be required to give prior notice under clause 7(a) of this Annexure A (but will be required to give notice immediately to the Customer on suspension) where Kallipr, acting reasonably, forms the view that any delay in suspending the Connectivity Services may result in Kallipr suffering material damage or liability.
8. Termination
(a) In addition to clause 11.4, Kallipr may suspend or terminate the Customer’s receipt of the Connectivity Services if Kallipr’s third party supplier suspends or terminates the Connectivity Services for any reason.
(b) In addition to clause 11.5, if the Connectivity Services are terminated prior to the end of the Term for any reason, the Customer must pay any Early Termination Charges to Kallipr on demand.
9. Indemnity
(a) The Customer indemnifies, and agrees to keep indemnified, Kallipr from and against any claims by a third party (including without limitation the third party supplier) arising from or in connection with the Connectivity Services.
(b) This clause 9 of this Annexure A survives termination or expiration of these Terms.
10. Exclusions
In addition to clause 14.1(e):
(a) Kallipr makes no representations and provides no warranties:
(i) about the provision of the Connectivity Services beyond its obligation to coordinate the Connectivity Services set out in clause 3 of this Annexure A;
(ii) that the Connectivity Services will be uninterrupted, error free, free of all defects, secure, timely, meet the Customer’s requirements or be fit for any particular purpose or function;
(iii) that the Connectivity Services will not contain viruses or other malicious software, code or scripts;
(iv) that the Connectivity Services will be available at all times; or
(v) that any documentation provided in connection with the Connectivity Services is complete, accurate or sufficient to explain the Connectivity Services;
(b) Kallipr shall not be liable to the Customer to the extent that any Connectivity Services are terminated or modified, or any additional fees or amounts are payable, as a result of a breach by the Customer of the Third Party Supplier Terms; and
(c) to the extent that any liability arising under these Terms in relation to the Service Levels, the parties agree that any service credits set out in the relevant Quote (if any) will be the Customer’s sole and exclusive remedy as against Kallipr for such liability.