Jenlist Pty Ltd T/A Jenlist Distributors – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd – 2006
1. Definitions
1.1 “Agent” shall mean Jenlist Pty Ltd T/A Jenlist Distributors, its
successors and assigns or any person acting on behalf of
and with the authority of Jenlist Pty Ltd T/A Jenlist
Distributors.
1.2 “Customer” shall mean the Customer or any person acting on
behalf of and with the authority of the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who
agrees to be liable for the debts of the Customer on a
principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Agent to the
Customer (and where the context so permits shall include
any supply of Services as hereinafter defined) and are as
described on the invoices, quotation, work authorisation or
any other forms as provided by the Agent to the Customer
1.5 “Services” shall mean all services supplied by the Agent to
the Customer and includes any advice or recommendations
(and where the context so permits shall include any supply of
Goods as defined above).
1.6 “Price” shall mean the cost of the Goods as agreed between
the Agent and the Customer subject to clause 3 of this
contract.
2. Acceptance
2.1 Any instructions received by the Agent from the Customer for
the supply of Goods and/or the Customer’s acceptance of
Goods supplied by the Agent shall constitute acceptance of
the terms and conditions contained herein.
2.2 Where more than one Customer has entered into this
agreement, the Customers shall be jointly and severally
liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the
Customer the terms and conditions are irrevocable and can
only be amended with the written consent of the Agent.
2.4 The Customer undertakes to give the Agent at least fourteen
(14) days notice of any change in the Customer’s name,
address and/or any other change in the Customer’s details.
2.5 Where the Goods supplied are:
(a) Optus pre-paid Goods; or
(b) Virgin pre-paid Goods; or
(c) Boost pre-paid Goods;
then these Goods are also subject to the terms and
conditions of the respective supply company, as attached
(where applicable). Acceptance of the Agent’s terms and
conditions shall constitute acceptance of the Optus, Virgin or
Boost terms and conditions. If there are any inconsistencies
between the terms and conditions herein and the Optus,
Virgin or Boost terms and conditions then the terms and
conditions contained in this document shall prevail.
3. Price And Payment
3.1 At the Agent’s sole discretion the Price shall be either;
(a) as indicated on invoices provided by the Agent to the
Customer in respect of Goods supplied; or
(b) the Agent’s current Price, at the date of delivery of the
Goods, according to the Agent’s current Price list.
3.2 Time for payment for the Goods shall be of the essence and
will be stated on the invoice or any other forms. If no time is
stated then payment shall be due fourteen (14) days
following the date of the invoice.
3.3 At the Agent’s sole discretion;
(a) payment shall be due before delivery of the Goods, or
(b) payment for approved Customer’s shall be due on
thirty (30) days following the end of the month in which
a statement is posted to the Customer’s address or
address for notices.
3.4 Payment will be made by cash, or by cheque, or by bank
cheque, or by credit card (plus a surcharge of up to 1.5% of
the Price), or by direct credit, or by direct debit, or by any
other method as agreed to between the Customer and the
Agent.
3.5 GST and other taxes and duties that may be applicable shall
be added to the Price except when they are expressly
included in the Price.
4. Delivery Of Goods
4.1 Delivery of the Goods shall take place when the Customer
takes possession of the Goods at the Customer’s address (in
the event that the Goods are delivered by the Agent).
4.2 At the Agent’s sole discretion the costs of delivery are;
(a) included in the Price, or
(b) in addition to the Price, or
(c) for the Customer’s account.
4.3 The Customer shall make all arrangements necessary to
take delivery of the Goods whenever they are tendered for
delivery. In the event that the Customer is unable to take
delivery of the Goods as arranged then the Agent shall be
entitled to charge a reasonable fee for redelivery.
4.4 The failure of the Agent to deliver shall not entitle either party
to treat this contract as repudiated.
4.5 The Agent shall not be liable for any loss or damage
whatever due to failure by the Agent to deliver the Goods (or
any of them) promptly or at all.
5. Risk
5.1 If the Agent retains ownership of the Goods nonetheless, all
risk for the Goods passes to the Customer on delivery.
5.2 If any of the Goods are damaged or destroyed following
delivery but prior to ownership passing to the Customer, the
Agent is entitled to receive all insurance proceeds payable
for the Goods. The production of these terms and conditions
by the Agent is sufficient evidence of the Agent’s rights to
receive the insurance proceeds without the need for any
person dealing with the Agent to make further enquiries.
6. Title
6.1 It is the intention of the Agent and agreed by the Customer
that ownership of the Goods shall not pass until:
(a) the Customer has paid all amounts owing for the
particular Goods, and
(b) the Customer has met all other obligations due by the
Customer to the Agent in respect of all contracts
between the Agent and the Customer.
6.2 Receipt by the Agent of any form of payment other than cash
shall not be deemed to be payment until that form of
payment has been honoured, cleared or recognised and until
then the Agent’s ownership or rights in respect of the Goods
shall continue.
6.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate
and identifiable until the Agent shall have received
payment and all other obligations of the Customer are
met; and
(b) until such time as ownership of the Goods shall pass
from the Agent to the Customer the Agent may give
notice in writing to the Customer to return the Goods or
any of them to the Agent. Upon such notice the rights
of the Customer to obtain ownership or any other
interest in the Goods shall cease; and
(c) the Agent shall have the right of stopping the Goods in
transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to the Agent
then the Agent or the Agent’s agent may enter upon
and into land and premises owned, occupied or used
by the Customer, or any premises as the invitee of the
Customer, where the Goods are situated and take
possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until
such time as the Agent has received payment in full for
the Goods then the Customer shall hold any proceeds
from the sale or disposal of the Goods on trust for the
Agent; and
(f) the Customer shall not deal with the money of the
Agent in any way which may be adverse to the Agent;
and
(g) the Customer shall not charge the Goods in any way
nor grant nor otherwise give any interest in the Goods
while they remain the property of the Agent; and
(h) the Agent can issue proceedings to recover the Price
of the Goods sold notwithstanding that ownership of
the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to
the Customer, if the Goods are converted into other
products, the parties agree that the Agent will be the
owner of the end products.
7. Customer’s Disclaimer
7.1 The Customer hereby disclaims any right to rescind, or
cancel the contract or to sue for damages or to claim
restitution arising out of any misrepresentation made to the
Customer by the Agent and the Customer acknowledges that
the Goods are bought relying solely upon the Customer’s
skill and judgement.
8. Defects
8.1 The Customer shall inspect the Goods on delivery and shall
within seven (7) days notify the Agent of any alleged defect,
shortage in quantity, damage or failure to comply with the
description or quote. The Customer shall afford the Agent an
opportunity to inspect the Goods within a reasonable time
following delivery if the Customer believes the Goods are
defective in any way. If the Customer shall fail to comply
with these provisions the Goods shall be presumed to be free
from any defect or damage. For defective Goods, which the
Agent has agreed in writing that the Customer is entitled to
reject, the Agent’s liability is limited to replacing the Goods.
8.2 Goods will not be accepted for return other than in
accordance with 8.1 above and 9.1 below.
9. Sale Or Return Policy
9.1 A Sale Or Return policy applies only to “pre-paid” Goods
purchased from the Agent, where the Agent will accept the
return of the Goods for credit, provided that:
(a) the Agent has agreed in writing to accept the return of
the Goods; and
(b) the Goods are returned at the Customer’s cost within
nine (9) months of the delivery date; and
(c) the Goods must be returned with an authorised “Stock
Returns” form supplied by the Agent; and
(d) the Goods are returned in the condition in which they
were delivered and with all packaging material,
brochures and instruction material in as new condition
as is reasonably possible in the circumstances.
9.2 Canon, Amicroe, or any other non pre-paid Goods sold by
the Agent will not be accepted for return.
9.3 Goods specifically advertised or sold on a “firm sale” basis
will not be accepted for return.
10. Warranty
10.1 For Goods not manufactured by the Agent, the warranty shall
be the current warranty provided by the manufacturer of the
Goods. The Agent shall not be bound by nor be responsible
for any term, condition, representation or warranty other than
that which is given by the manufacturer of the Goods.
11. The Commonwealth Trade Practices Act 1974 and Fair
Trading Acts
11.1 Nothing in this agreement is intended to have the effect of
contracting out of any applicable provisions of the
Commonwealth Trade Practices Act 1974 or the Fair Trading
Acts in each of the States and Territories of Australia, except
to the extent permitted by those Acts where applicable.
12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when
payment becomes due daily until the date of payment at a
rate of 2.5% per calendar month and such interest shall
compound monthly at such a rate after as well as before any
judgement.
12.2 If the Customer defaults in payment of any invoice when due,
the Customer shall indemnify the Agent from and against all
costs and disbursements incurred by the Agent in pursuing
the debt including legal costs on a solicitor and own client
basis and the Agent’s collection agency costs.
12.3 Without prejudice to any other remedies the Agent may have,
if at any time the Customer is in breach of any obligation
(including those relating to payment), the Agent may
suspend or terminate the supply of Goods to the Customer
and any of its other obligations under the terms and
conditions. The Agent will not be liable to the Customer for
any loss or damage the Customer suffers because the Agent
exercised its rights under this clause.
12.4 If any account remains overdue after thirty (30) days then an
amount of the greater of $20.00 or 10.00% of the amount
overdue (up to a maximum of $200) shall be levied for
administration fees which sum shall become immediately due
and payable.
12.5 Without prejudice to the Agent’s other remedies at law the
Agent shall be entitled to cancel all or any part of any order
of the Customer which remains unperformed and all amounts
owing to the Agent shall, whether or not due for payment,
become immediately payable in the event that:
(a) any money payable to the Agent becomes overdue, or
in the Agent’s opinion the Customer will be unable to
meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting
with its creditors or proposes or enters into an
arrangement with creditors, or makes an assignment
for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or
otherwise) or similar person is appointed in respect of
the Customer or any asset of the Customer.
13. Security And Charge
13.1 Despite anything to the contrary contained herein or any
other rights which the Agent may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is
the owner of land, realty or any other asset capable of
being charged, both the Customer and/or the
Guarantor agree to mortgage and/or charge all of their
joint and/or several interest in the said land, realty or
any other asset to the Agent or the Agent’s nominee to
secure all amounts and other monetary obligations
payable under the terms and conditions. The
Customer and/or the Guarantor acknowledge and
agree that the Agent (or the Agent’s nominee) shall be
entitled to lodge where appropriate a caveat, which
caveat shall be released once all payments and other
monetary obligations payable hereunder have been
met.
(b) should the Agent elect to proceed in any manner in
accordance with this clause and/or its sub-clauses, the
Customer and/or Guarantor shall indemnify the Agent
from and against all the Agent’s costs and
disbursements including legal costs on a solicitor and
own client basis.
(c) the Customer and/or the Guarantor (if any) agree to
irrevocably nominate constitute and appoint the Agent
or the Agent’s nominee as the Customer’s and/or
Guarantor’s true and lawful attorney to perform all
necessary acts to give effect to the provisions of this
clause 13.1.
14. Cancellation
14.1 The Agent may cancel these terms and conditions or cancel
delivery of Goods at any time before the Goods are delivered
by giving written notice. On giving such notice the Agent shall
repay to the Customer any sums paid in respect of the Price.
The Agent shall not be liable for any loss or damage
whatever arising from such cancellation.
14.2 In the event that the Customer cancels delivery of Goods the
Customer shall be liable for any loss incurred by the Agent
(including, but not limited to, any loss of profits) up to the
time of cancellation.
15. Privacy Act 1988
15.1 The Customer and/or the Guarantor/s agree for the Agent to
obtain from a credit reporting agency a credit report
containing personal credit information about the Customer
and Guarantor/s in relation to credit provided by the Agent.
15.2 The Customer and/or the Guarantor/s agree that the Agent
may exchange information about the Customer and the
Guarantor/s with those credit providers either named as
trade referees by the Customer or named in a consumer
credit report issued by a credit reporting agency for the
following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the
Customer; and/or
(c) to exchange information with other credit providers as
to the status of this credit account, where the Customer
is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or
Guarantor/s.
15.3 The Customer consents to the Agent being given a
consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
15.4 The Customer agrees that personal credit information
provided may be used and retained by the Agent for the
following purposes and for other purposes as shall be agreed
between the Customer and Agent or required by law from
time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by the Agent, its agents or
distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s
credit, payment and/or status in relation to provision of
Goods; and/or
(d) processing of any payment instructions, direct debit
facilities and/or credit facilities requested by Customer;
and/or
(e) enabling the daily operation of Customer’s account
and/or the collection of amounts outstanding in the
Customer’s account in relation to the Goods.
15.5 The Agent may give information about the Customer to a
credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer;
and/or
(b) allow the credit reporting agency to create or maintain
a credit information file containing information about
the Customer.
16. General
16.1 If any provision of these terms and conditions shall be
invalid, void, illegal or unenforceable the validity, existence,
legality and enforceability of the remaining provisions shall
not be affected, prejudiced or impaired.
16.2 These terms and conditions and any contract to which they
apply shall be governed by the laws of New South Wales and
are subject to the jurisdiction of the courts of New South
Wales.
16.3 The Agent shall be under no liability whatever to the
Customer for any indirect loss and/or expense (including loss
of profit) suffered by the Customer arising out of a breach by
the Agent of these terms and conditions.
16.4 In the event of any breach of this contract by the Agent the
remedies of the Customer shall be limited to damages.
Under no circumstances shall the liability of the Agent
exceed the Price of the Goods.
16.5 The Customer shall not be entitled to set off against or
deduct from the Price any sums owed or claimed to be owed
to the Customer by the Agent.
16.6 The Agent may license or sub-contract all or any part of its
rights and obligations without the Customer’s consent.
16.7 The Agent reserves the right to review these terms and
conditions at any time. If, following any such review, there is
to be any change to these terms and conditions, then that
change will take effect from the date on which the Agent
notifies the Customer of such change.
16.8 Neither party shall be liable for any default due to any act of
God, war, terrorism, strike, lock out, industrial action, fire,
flood, drought, storm or other event beyond the reasonable
control of either party.
16.9 The failure by the Agent to enforce any provision of these
terms and conditions shall not be treated as a waiver of that
provision, nor shall it affect the Agent’s right to subsequently
enforce that provision.
Terms and Conditions (For supply of Optus and Boost PrePaid Mobile by Jenlist Pty Ltd)
To be read in conjunction with the Terms & Conditions of Trade as set out by Jenlist Pty Ltd T/A Jenlist Distributors
Introduction
1.1 Background: Jenlist Pty Ltd (ABN 003 619 789) (Jenlist) has been appointed by
PrePaid Services Pty Limited (ABN 83 094 689 219) (PrePaid Services) as an Agent
for Optus Mobile Pty Limited (ABN 65 054 365 696) and Optus Internet Pty Limited
(ABN 14 083 164 532) (together Optus) to facilitate the sale and promotion of certain
pre-paid telecommunications products and services. On behalf of Optus and PrePaid
Services, Jenlist appoints the Retailer as a Sub- agent of Optus to carry out the
promotion and sales of Products for Optus on the terms of this Agreement.
1.2 Acceptance: By placing the first order with Jenlist for Products, the Retailer will be
deemed to have accepted the appointment as Optus’ agent and agree to comply with
the terms of this Agreement and any direction by PrePaid Services and / or PrePaid
Services approved communication from Jenlist. These terms and conditions are
directly enforceable against the Retailer by PrePaid Services (for the benefit of Optus).
1.3 Term of Agreement: This Agreement commences on the date it is signed by both
parties (or the date on which the Retailer is deemed to have accepted these terms under
clause 1.2) and continues for the term specified in the Details unless it is terminated
earlier in accordance with its terms.
1.4 Definitions:
Products means a product of the following type : Prepaid Mobile Start Up
Kits (Containing a SIM card and pre-paid airtime), Prepaid Mobile
Handset Packages (Mobile handset packages bundled with Prepaid
Mobile start Up kits), Prepaid Mobile Recharge Vouchers (vouchers
containing further pre-paid mobile airtime), Prepaid Internet
Products, Prepaid Services Calling Card Products.
Locations Retail locations as approved by Jenlist and PrePaid services
Margin means the commission payable to the retailer expressed as a
percentage of the sale price, as notified by Jenlist from time to time
Sale Price means the price for a Product as specified by Optus
2. Appointment and Role
2.1 Appointment: Jenlist as an agent of PrePaid Services and Optus appoints the Retailer as
a Sub- agent of Optus, on the terms of this Agreement, for the purpose of selling
Products to customers at approved Locations
2.2 Role: All sales of Products are directly between Optus and the customer. The Retailer
must not purport to enter into any contractual relationship with a customer for the sale
of Products or alter any of the terms and conditions on which Optus supplies the
Products to customers.
2.3 Sub-Agency: The Retailer must not appoint any agents of Optus or supply Products to
any person for the purposes of re-supply.
3. Exclusivity
If the agreement states that exclusivity applies, the Retailer must not:
(a) purchase from a competitor of Optus for the purpose of resupply; or
(b) distribute, promote or provide agency services the same as or similar
to the agency services provided under this Agreement for a competitor
of Optus in relation to,
any pre-paid mobile telecommunications products or services, pre-paid internet service
or prepaid calling card products or services.
4. Retailer's Obligations
4.1 Conditions of Supply: The Retailer must:
(a) use its best efforts to promote the sale of the Products to customers at
the Locations including by ensuring that (at all times and at each
Location) the Products are displayed prominently and in adequate
stock;
(b) use the point of sale material provided by Jenlist from time to time;
(c) not use any advertising or promotional material in connection with the
sale of the Products, other than the material provided or approved by
Jenlist
(d) not transfer Products between Locations, unless otherwise agreed by
Jenlist;
(e) supply Products only for use in connection with the Optus Digital
Mobile Network in Australia and/or OptusNet Dial-Up Internet
Service as relevant; and
(f) ensure Products sold to customers:
(i) are in the same packaging and condition as they are
delivered by Jenlist;
(ii) have an expiry date more than 2 months away; and
(iii) are not separated or unbundled components of
Products delivered by Jenlist to the Retailer.
4.2 General Obligations: The Retailer:
(a) must not make any representations or give any warranties in relation to
the Products other than those given by Jenlist from time to time;
(b) must perform its obligations under this Agreement in accordance with:
(i) any directions issued byJenlist, PrePaid Services or
Optus from time to time;
(ii) any Optus , PrePaid Services or Jenlist operational
procedures that the Retailer has been notified of;
(c) If requested by Jenlist provide to Jenlist within 3 days of the end of
every calendar month a statement showing any information reasonably
required by Jenlist, including the number and type of Products which
have been acquired by customers during that calendar month, and the
Sales Price paid by those customers for each Product
4.3 Compliance with Legal and Statutory Obligations: The Retailer:
(a) must comply with all applicable laws, regulations, standards and codes
of conduct;
(b) must not represent or pass-off that it is Optus or PrePaid Services, or is
authorised to act on behalf of Optus or PrePaid Services or perform
any activities in relation to the Products except as set out in this
Agreement; and
(c) must work together with Jenlist to prevent fraud in connection with the
Products and notify Jenlist immediately on becoming aware of any
such fraud.
4.4 Pre-paid identity checks: Without limiting the Retailer's obligations under clause 5.3,
the Retailer must:
(a) obtain copies of identification required by the ACMA's
Telecommunications (Service Provider - Identity Checks for Pre-paid
Public Mobile Telecommunications Services) Determination 2000
including the identification specified in the Attachment to this
Agreement; and
(b) supply copies of that identification along with a completed Prepaid
Registration form to Optus on a weekly basis (or at such other times as
may be agreed between the parties from time to time) and in
accordance with Optus procedures as notified by Jenlist.
(c) Copies of identification and completed Prepaid Registration forms are
to be returned to :
Campaign Management Team at
Reply Paid 1111,
PO Box 42,
North Melbourne, VIC 3051
5. Displays and Point of Sale Material
5.1 Point of sale and advertising material: If Jenlist provides the Retailer with displays,
fittings and point of sale material for the products, all such materials:
(a) remain the property of PrePaid Services or Optus (as the case may be);
(b) must be used for the purposes of display and promotion of Products;
and
(c) must be prominently displayed in accordance with the directions of
Jenlist from time to time.Sale Price and Price Protection.
5.2 Approval: The Retailer must ensure that any point of sale and advertising material
used at a Location for the Products that has not been supplied by PrePaid Services is
approved in writing by PrePaid Services.
6. Sale Price
6.1 Commission: The Retailer:
(a) may retain by way of commission an amount equal to the Margin of
the Sale Price of Products sold by the Retailer to customers at the
Locations; and
(b) must remit to Jenlist an up-front deposit for the Products delivered to
the Retailer under this Agreement calculated in accordance with the
formula in clause 6.2.
6.2 Remittance Formula: For all Products delivered to the Retailer, the Retailer must remit
to Jenlist an amount (Remittance) calculated in accordance with the following formula,
as adjusted in accordance with this clause
Remittance =
Sale Price - (Sale Price x Margin).
6.3 Sale Price and Price Protection:
(a) The Retailer acknowledges and agrees that the sales of the Products
are directly between Optus and the customer and, accordingly, Optus
(as notified to the Retailer by Jenlist) is free to set the Sale Price of the
Products at any time as it sees fit.
(b) If Optus:
(i) reduces the Sale Price, the Retailer may make a price
protection claim in accordance with the Return and
Price Protection Policy and the Jenlist will refund to
the Retailer the amounts determined in accordance
with the Return and Price Protection Policy; and
(ii) increases the Sale Price, the Retailer will be liable to
pay Jenlist an additional amount calculated in
accordance with the Return and Price Protection
Policy.
7. Confidentiality
7.1 Definition: Confidential Information means:
(a) all information of PrePaid Services or Optus (jointly and severally the
Owner) that is treated by them as being confidential; and
(b) disclosed by the Owner (whether in writing or in any other form) to
the Retailer (or of which the Retailer first becomes aware) in
connection with this Agreement.
7.2 Restrictions on disclosure: The Retailer must keep the Confidential Information
confidential and not disclose it to a third party except:
(a) to employees that have a need to know in connection with this
Agreement (and only to the extent that each has a need to know); or
(b) to the extent, and to the persons, required to comply with any legal or
regulatory obligations or the listing rules of any stock exchange.
7.3 The Retailer must:
(a) only use the Owner's Confidential Information to the extent necessary
to perform its obligations under this Agreement;
(b) establish and maintain effective security measures to safeguard the
Owner's Confidential Information from unauthorised access or use;
(c) immediately take all steps to prevent or stop, and comply with any
direction issued by the Owner from time to time regarding, a suspected
or actual breach; and
(d) immediately notify the Owner of any suspected or actual unauthorised
use, copying or disclosure of the Owner's Confidential Information.
(e) not use any Optus or PrePaid Services trade marks and logos with out
prior written approval of Optus or PrePaid Services respectively.
(f) only apply the Optus and PrePaid Services Trade Marks in a manner
and form approved by Optus or PrePaid Services, or both, in writing
from time to time (including the use of Optus and PrePaid Services
Trade Marks in connection or association with any other trade marks,
logos, names, trading styles or get up
(g) comply with any quality or other standards notified by Optus or
PrePaid Services or both to retailer in relation to the use of the Optus
and PrePaid Services Trade Marks
(i) not alter or deface the Optus and PrePaid Services Trade Marks in any
manner.
7.4 Effect of Expiration or Termination: On expiration or termination of this Agreement,
the Retailer agrees that:
(a) it must continue to keep confidential in accordance with this clause 9
the Owner’s Confidential Information; and
(b) its rights to use and disclose the Owner’s Confidential Information
cease other than in relation to information the Retailer is required to
disclose in order to comply with any legal, regulatory, or stock
exchange reporting obligations.
8. Privacy
8.1 Definition: Personal Information has the meaning in the Privacy Act 1988 (Cth), and
in this clause, refers to Personal Information collected by the Retailer and/or its
personnel or disclosed to the Retailer and/or its personnel under the terms of this
Agreement
8.2 Compliance with privacy legislation: In addition to complying with its duties under
clause 9, when performing its obligations under this Agreement, the Retailer must
ensure that when it or its personnel collects, uses, discloses, transfers, stores or
otherwise handles Personal Information which relates to a Customer or any other
person, it will comply with all applicable laws, rules and regulations including, without
limitation:
(a) the Privacy Act 1988 (Cth) and the National Privacy Principles
contained in Schedule 3 of that Act, regardless of whether the Retailer
is a small business operator for the purposes of that Act, or would
otherwise be exempted from complying with that Act; and
(b) Part 13 of the Telecommunications Act 1997 (Cth).
8.3 Privacy notification: At the time the Retailer and/or its personnel collects Personal
Information from a person on behalf of Optus (for example, when a person is
completing a Service Application), the Retailer and/or its personnel must direct that
person to the relevant printed explanation of why Optus collects Personal Information,
to whom Optus may disclose Personal Information, the consequences if Personal
Information is not provided and that access to the Personal Information which Optus
holds about them may be available from Optus.
8.4 Use and disclosure: Without limiting clause 10.2, the Retailer must and the Retailer
must ensure that its personnel must:
(a) not use the Personal Information collected from a Customer or from
Optus except in accordance with clause 9 and for purposes authorised
under this Agreement;
(b) not disclose Personal Information provided to the Retailer and/or its
personnel to any person other than Optus without the written authority
of Optus or as required by law;
(c) take all reasonable steps to protect any Personal Information provided
to the Retailer and/or its personnel under this Agreement from misuse
and loss and from unauthorised access, modification or disclosure;
(d) comply with any reasonable requests or directions of Optus
concerning the security, use and disclosure of Personal Information
collected by the Retailer and/or its personnel under this Agreement, or
the rights of individuals to access and correct such Personal
Information (for example, this may be addressed in bulletins from
Optus to the Retailer);
(e) comply with any reasonable requests or directions of Optus
concerning the current Optus privacy policy;
(f) notify Optus as soon as reasonably practicable after the Retailer
becomes aware that it may be required by law (including under the
Privacy Act 1988) to disclose any Personal Information collected by or
provided to the Retailer and/or its personnel under this Agreement (for
example, if an access request is received under the Privacy Act 1988,
Optus must be notified);
(g) notify Optus immediately after the Retailer becomes aware of a breach
of this clause; and
(h) on the termination of this Agreement for any reason, destroy or
otherwise deal with any Personal Information provided to the Retailer
and/or its personnel under this Agreement in accordance with the
reasonable directions of Optus.
8.5 Personal Information as Confidential Information: the Retailer acknowledges that
Personal Information may also be Confidential Information and that the Retailer must
only use or disclose such Personal Information in accordance with clause 9 of this
Agreement.
8.6 Survival: Clause 10 survives the termination of this Agreement.
9. Record Keeping and Inspection
9.1 Complete records: The Retailer must maintain complete and accurate records of and
all supporting documentation relating to this Agreement and the sale of the Products.
9.2 Access: The Retailer agrees to allow PrePaid Services (and its authorised
representatives) to enter its business premises and each Location during business hours
without notice and at other times after giving 48 hours notice for the sole purpose of
ensuring that the Retailer has complied, is complying and will be able to continue to
comply with its obligations under this Agreement.
10. Liability
10.1 Risk and Title: Title in a Product remains with Optus until such time as the Product is
sold by the by the Retailer to the customer when title shall pass directly from Optus to
the customer. Risk in the Products passes to the Retailer on the delivery of the
Products to the Retailer.
10.2 Indemnity: The Retailer indemnifies Jenlist, PrePaid Services and Optus against any
liability, losses, damages, expenses and costs (on a solicitor own client basis) suffered
or incurred by PrePaid Services or Optus as a result of:
(a) a breach of this Agreement by the Retailer;
(b) any act, omission or misrepresentation of the Retailer relating to the
sale or promotion of the Products; and
(c) any fraudulent use of Products (including theft) by any employees,
sub-agents or contractors of the Retailer.
10.3 Non-Excludable Terms: This Agreement does not exclude or modify any condition or
warranty implied into this Agreement or any liability imposed on Optus or PrePaid
Services by any law (including by the Trade Practices Act 1974) if to do so would
contravene that law or make any part of this clause void or unenforceable.
10.4 Warranties: Each of PrePaid Services and Optus exclude all conditions and warranties
implied into this Agreement.
10.5 Liability: PrePaid Services' and Optus’ liability for any claim or proceeding in
connection with this Agreement (whether that liability arises from contract, tort
(including negligence) or statute) will be limited, in the case of services, to supplying
the services again and in the case of goods, to providing equivalent goods or replacing
or having the goods repaired.
10.6 Consequential Loss: Each of Optus and PrePaid Services excludes any liability to the
Retailer for any special or consequential loss including but not limited to loss of
opportunity, lost revenue and lost profits arising out of or in connection with this
Agreement or the sale of the Products.
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