Terms and Conditions

These terms and conditions constitute the agreement (Agreement) between K5 Solutions Pty Ltd ACN 117 340 557 (K5) and the user (Subscriber) of K5’s residential and small business internet telephone communications services (the Service). By activating and accepting the supply of the Service, the Subscriber acknowledges that it understood and agrees to be bound by the terms and conditions of the Agreement (Acceptance).

1. Interpretation

1.1 Definitions

These definitions apply, unless they are inconsistent with the context:

‘Activation Date’ is the date which is three (3) Business Days after the Subscriber confirms its Acceptance of the Agreement;

‘Bankruptcy’ means:

(a) if the Subscriber is a corporation, the appointment of an official manager, provisional liquidator or liquidator for it; and

(b) if the Subscriber is a natural person that person, becoming “an insolvent under administration” as defined in section 9 of the Corporations Act 2001 (Cth)

and ‘Bankrupt’ has a corresponding meaning;

‘Business Day’ means a day that is not a Saturday, Sunday or public holiday in Melbourne;

‘Claim’ means any demand, proceeding, action, or process of any nature;

‘Device’ means any device or equipment that K5 may provide the Subscriber in connection with the Service;

‘GST’ means any goods and services tax payable under any Law (whether or not currently in force) and any regulations, rulings, additions, amendments or alterations to the preceding legislation;

‘Intellectual Property’ means the registered and unregistered business names, copyrights, patents, trade marks, service marks, trade names, designs and similar industrial, commercial and intellectual property;

‘Law’ includes any act, regulation, rule, ordinance, by-law and any other delegated legislation or the Listing Rules of any recognised stock exchange;

‘Person’ includes a corporation, institution, unincorporated body, incorporated association and any group of persons and/or any agent or associate of a person or any person appointed by the original person to take the place of the original person;

‘Service Charges’ means all fees, charges and payments that the Subscriber must pay to K5 for the Service including any applicable GST;

1.2 Construction

These rules apply unless they are inconsistent with the context.

(a) Paragraph headings have been included for ease of reference and this Agreement is not to be construed or interpreted by reference to them.

(b) Any references to:

(i) this Agreement includes references to parts of it.

(ii) corporations includes natural persons and vice versa.

(iii) any professional body, association or institute includes any successor body having similar objects;

(iv) any gender includes any other gender;

(v) any Law includes:

(A) amendments, consolidations or replacements of it; and

(B) proclamations, rules, regulations, orders and notices issued under any Law;

(vi) “AUD”, “$” or “dollars” is a reference to the lawful currency of Australia;

(vii) the singular includes the plural and vice versa; and

(viii) a recital, clause, schedule or annexure is to a recital, clause, schedule or annexure of or to this document, unless expressly defined otherwise.

(c) If any party comprises more than one person, their respective liabilities under this Agreement are joint and several.

(d) Covenants implied by Law are not incorporated in this Agreement, unless the relevant Law provides that certain covenants are to be implied and cannot be excluded by agreement.

(e) The party responsible for drafting this Agreement or any part of it must not be adversely affected for that reason in the interpretation of this document.

(f) If any provision of this Agreement is or becomes invalid, illegal or unenforceable, that provision will be read down to the extent necessary to make it valid, legal or enforceable and if it cannot be read down, will be severed and other provisions of this Agreement will remain unaffected.

1.3 Binds Successors

This Agreement will apply to the respective successors and assigns of:

(a) K5; and

(b) the Subscriber.

as if they were a party to this Agreement.

1.4 Governing Law

(a) This Agreement is governed and construed in accordance with the laws of Victoria.

(b) The parties submit to the non-exclusive jurisdiction of the Courts of Victoria with respect to any legal proceedings in connection with or relating to this Agreement.

2. The Service

2.1 Agreement to Provide the Service

(a) The Subscriber agrees to subscribe to the Service on the terms and conditions of the Agreement.

(b) By activating and accepting the supply of the Service, the Subscriber acknowledges that:

(i) it has read, understood, and agreed to, the terms and conditions of the Agreement;

(ii) K5 may change the terms and conditions of the Agreement provided it notifies the Subscriber, in writing, not less than five (5) days before implementing such changes;

(iii) any such changes to the terms and conditions of the Agreement, will be incorporated into this Agreement and will prevail in case of any inconsistency; and

(iv) it agrees to be bound by the terms and conditions of the Agreement as amended by K5 from time to time.

2.2 Term

(a) The Service is offered on a full monthly basis:

(i) from the later of, the Activation Date and the date the Subscriber receives supply of the Service; and

(ii) ends on the 29th day after that date. (Term)

(b) Subsequent Terms of this Agreement automatically renew monthly without further action by the Subscriber unless terminated in accordance with this Agreement.

(c) The Subscriber must return the Device and any other software to K5 upon termination of the Service.

2.3 Service Description

(a) The Service allows the Subscriber to place and receive calls by using high-speed internet connection.

(b) The Subscriber acknowledges and understands that it must supply the high-speed internet connection at it’s own expense.

2.4 Service Limitations

(a) The Subscriber understands and acknowledges that the Service may be limited by the following:

(i) Equipment Compatibility The Service may not be compatible with all non- voice communications equipment, including but not limited to, home security systems, medical monitoring equipment, fax machines, satellite television systems, and computer modems.

(ii) Power Failure The Service does not function without power. A power failure or disruption may require the Subscriber to reset or reconfigure the Device before using the Service.

(iii) High-speed Internet Connection Failure The Service does not function or may be disrupted if there is a failed or disrupted connection by the Subscriber’s high-speed internet service provider.

(iv) Insufficient Bandwidth at Customer’s Premise. The service will not come with any guarantee of quality or reliability if customer selects the use K5 Home User / Residential grade plan. K5 Business plan users have restrictions to only use a dedicated SHDSL service provided by K5 in order to obtain a service level guarantee for voice quality and service reliability. Users not using the K5 SHDSL service are classified as Home Plan / Residential Users. Users not using K5 SHDSL cannot upgrade to our K5 Business Plan (Business Plans have a service level guarantee), users not using K5 SHDSL are using the service under the conditions of the K5 Home User Plan / Residential plan only. The K5 Home User Plan / Residential plan comes with no service guarantee.

(v) The Service will not function if K5 suspends the Subscriber’s subscription due to non-payment of the Subscriber’s account or any other default by the Subscriber or on discovering a subscriber is using the service for a business purpose while on a K5 Home User Plan / Residential Plan.

(vi) Device Tampering The Service may not function if the Subscriber tampers with the Device or the Service without K5’s express authorisation.

(b) If the Service or the Device does not function or is disrupted for any reason, including but not limited to any of the reasons described in Clause 2.4 (a) above, the Subscriber agrees to waive and indemnify K5 from any Claim against K5.

3. Restrictions on Use of Service

3.1 The Subscriber must not do the following in relation to the Service or Device:

(a) Resale and Transfer The Subscriber must not resell or transfer the Service or the Device to any person for any purpose without express written permission from K5 in advance.

(b) Permitted Use The Subscriber must use the Service or the Device for lawful purposes only. K5 Residential plans are strictly for residential use only and must not be used for business purposes.

(c) Network Integrity and Security The Subscriber must not use the Service or do any thing that, in K5’s sole opinion, presents a risk to the network integrity or security of K5 or its vendors, whether directly or indirectly.

(d) Telephone Number If K5 provides the Subscriber with a telephone number, as part of the Service (the Number), the Subscriber must not sell or use the Number for any purpose other than in connection with the Service and the terms of this document. Upon termination of the Service, K5 may, in its sole discretion, release the Number to the Subscriber provided the Subscriber has:

(i) terminated its subscription for the Service;

(ii) paid all charges due to K5 and rectified all other defaults; and

(iii) requested the transfer of the Number upon termination of its subscription for the Service.

(e) Use outside Australia The Service, Device and any software provided by K5 is intended for use in Australia only. The Subscriber must not use the Service, Device and any software provided by K5 outside Australia or wherever its use is contrary to the Law in that area.

(f) Unlawful and Prohibited Use The Subscriber must not use the Service, Device and any software provided by K5 for any unlawful purpose under any Law, including but not limited to using the Service:

(i) to transmit, receive or possess any communication or material that in K5’s sole judgment, would, constitute or encourages conduct that would, constitute a criminal offence, give rise to a Claim or is otherwise against any Law;

(ii) for any abusive or fraudulent purpose;

(iii) in any way that may, in K5’s sole judgment, interfere with K5’s ability to provide the Service; and

(iv) in any way that avoids the Subscriber’s obligation to pay for communications services.

(g) Tampering The Subscriber must not change the electronic serial number or equipment identifier of the Device, or to perform a factory reset of the Device, without express written permission from K5.

(h) Theft of Service The Subscriber must immediately notify K5 if the Device is stolen or if it becomes apparent that the Service is being stolen or fraudulently used.

(i) Unauthorised Use of Intellectual Property All the Intellectual Property in relation to the Service and Device and any software used to provide the Service or provided to the Subscriber in connection with providing the Service, or that is contained in the Device and all information, documents and materials on K5’s website belong to K5. The Subscriber must not use the Intellectual Property described above other than on the terms of this document and the Service.

3.2 If the Subscriber does not comply with sub-Clauses 3.1

(a) to (i): (a) K5 may immediately terminate the Service in accordance with Clause 5.2; and

(b) the Subscriber agrees to waive and indemnify K5 from any Claim against K5 as a result of the Subscriber’s default of Clause 3 or this document.

4. Charges and Payments

4.1 Service Charges

The Subscriber must pay the Service Charges from the Activation Date. In addition the Subscriber understands and acknowledges the following:

(a) Billing

K5 will bill all Service Charges monthly in advance and any usage charges will be billed in increments rounded up to the nearest minute.

(b) Change in Service Charges

K5 may change the Service Charges for the Service from time to time. K5 may decrease the Service Charges without giving prior notice to the Subscriber. Increase in the Service Charges may take effect no sooner than five (5) days after the Subscriber is notified in writing of such changes.

(c) Failure to Pay

K5 reserves the right to suspend, restrict, or cancel the Service and this document if the Subscriber does not pay the Service Charges when it becomes due or is in default.

(d) Late Payment Charges

K5 reserves the right to add interest charges to any overdue Service Charges, at any rate up to the maximum rate allowed by Law, for each day payment is overdue.

(e) Service Charges Disputes

The Subscriber must notify K5 within seven (7) days of receiving a valid tax invoice for payment of the Service Charges, if there is any dispute regarding the Service Charges on that tax invoice, or else the Subscriber will be deemed to have waived such dispute and Claim against K5.

(f) Goods and Services Tax

(i) All payments required to be made by a party under the Subscription Plan and the Agreement, have been calculated without regard to a GST; and

(ii) If a GST is assessable under any Law on any supply by a party to another party under this document then the recipient of that supply must pay the amount of that GST to the supplying party on the same day as the payment of the supply is due.

4.2 Credit/Debit Card Authority

(a) The Subscriber must provide K5 with a valid credit or debit card (Subscriber’s Card) number by the Activation Date.

(b) The Subscriber irrevocably authorises K5 to charge any amounts payable in relation to the Service and the Agreement to the Subscriber’s Card.

(c) The Subscriber must notify K5 immediately if:

(i) the Subscriber’s Card expires;

(ii) the Subscriber closes the Subscriber’s Card’s account;

(iii) the Subscriber’s Card’s billing address changes;

(iv) the Subscriber’s Card is cancelled.

(d) K5 may charge all charges and payments under for the Service and this Agreement monthly in advance to the Subscriber’s Card.

5. Cancellation of Service

The Service may be terminated before the end of the Term in any of the following ways:

(a) By the Subscriber

(i) The Subscriber may cancel the Service prior to the end of the Term by giving K5 notice in writing at least ten (10) days before the end of the Term;

(ii) If the Subscriber cancels the Service prior to the end of the Term, the Subscriber is responsible for paying the full month’s charges until the end of that monthly term.

(iii) K5 may take up to two Business Days to cancel the Service upon the Subscriber’s request.

(iv) After cancellation of the Service, the Subscriber must not use the Device or any other things K5 had provided to the Subscriber in connection with the Service and this Agreement.

(v) Any additional charges the Subscriber incurs after K5 is notified of the cancellation may be charged to the Subscriber.

(b) By K5

K5 may without prior notice, terminate the Service, cancel the Subscriber’s subscription and/or prevent access to K5’s network, if K5 deems, in its sole discretion, that such action is necessary to protect against fraud or to protect K5’s personnel, agents, facilities or services. Without limitation, K5 may terminate the Service if:

(i) the Subscriber refuses to give information, or gives false information to K5 in relation to the subscription for the Service or the Agreement;

(ii) the Subscriber does not comply with K5’s request for security of payments;

(iii) the Service Charges in accordance with the Subscriber’s usage of the Service are exceptionally higher than established parameters, which may indicate a likelihood of non-payment or fraud;

(iv) K5 has notified the Subscriber of unpaid Service Charges, which remains unpaid, in whole or in part;

(v) the Service Charges are not paid or if the Subscriber indicates to K5 that it does not intend to pay for the Service, the Service Charges or any payments under the Agreement;

(vi) the Subscriber attempts to avoid payment of the Service Charges by tampering with the Service or using schemes, false or invalid numbers, false credit devices, or other fraudulent means;

(vii) the Subscriber does not co-operate or acts in a manner which may hinder investigation by K5 to assess the Subscriber’s obligations under the Agreement or any Law;

(viii) the Subscriber does not remedy any default of the Agreement of which default, the Subscriber has been given notice of;

(ix) the Subscriber does not comply with sub-Clauses 3.1 (a) to (i);

(x) The Subscriber becomes Bankrupt; and

(xi) The Subscriber acts in a way which is threatening, obscene, harassing or abusive to any K5 personnel or agent.

If K5 cancels Service pursuant to sub-Clauses (i) to (xi) above or this Agreement, the Subscriber is still liable for any:

(a) payments or charges due and owing to K5 up until the time of the Service is cancelled; and

(b) Claim, K5 may have against the Subscriber as a result of the Subscriber’s default under this document or any Law.

7. Limitations of Liability

(a) Despite anything to the contrary in this Agreement, K5 will not be liable to the Subscriber, or at all, for:

(i) failure of performance due to circumstances beyond its control, including, but not limited to, natural disasters, national emergencies, terrorism, workforce strikes or other labour difficulties; or

(ii) failure of performance or failure of service availability if the customer is relying on an internet service which is not provisioned by K5. This includes any feature of K5 services including but not limited to outgoing calls, Incoming calls, call diversion, conferencing, faxing, value added features such as Interactive Voice Response, Music On Hold; or

(iii) the ordering, installation, provision, termination, maintenance or repair of the Device, Service or any other services or facilities offered by K5 under the Agreement; or

(iv) any indirect, special, incidental, consequential, exemplary, or punitive loss or damage of any kind, including loss profits (whether or not K5 has been advised of such loss or damages) by reason of any act or omission in its performance under the Agreement.

(b) K5 will be indemnified and held harmless by the Subscriber against all Claims of loss or damage arising from the use of the Service, including;

(i) allegations of slander, invasion of privacy or infringement of Intellectual Property arising out of the transmission of material, information or content through the Service;

(ii) all other allegations and Claims arising out of any intentional act or omission by the Subscriber, in connection with the Service or any other service provided by K5; and

(iii) any act or omission of any other third parties, even if they are interconnected with the provision of K5 services, facilities, equipment or devices.

(c) This Clause survives the termination of the Agreement.

8. Warranties and Acknowledgements

8.1 Warranty Limitations

The Subscriber acknowledges and agrees that K5:

(a) makes no express or implied representations or warranties about its services and disclaims any implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, title, or non-infringement;

(b) makes no warranty that the Service will be uninterrupted or error free; and

(c) does not authorise anyone to make a warranty on its behalf and the Subscriber may not rely on a statement of warranty as a warranty by K5.

(c) K5 will not support any equipment, device or any software component which is not purchased directly by K5. Any third party equipment, devices or software component used by the customer for utilizing K5 services will not be supported by K5. K5 is not liable to any disruption or service issue arising while using any third party equipment.

8.2 No other warranties

Except for the representations, warranties, undertakings and agreements and other matters set out in this Agreement, the parties enter into this Agreement in reliance upon its own skills and judgement consequent upon its own enquiries and investigations.

9. Miscellaneous Provisions

9.1 Notices

(a) How to give a notice A notice or other communication under this Agreement is only effective if it is:

(i) in writing, signed by or on behalf of the person giving it;

(ii) addressed to the person to whom it is to be given;

(iii) either:

(A) delivered or sent by pre-paid mail (by airmail, if the addressee is overseas) to that person’s address; or

(B) sent by fax to that person’s fax number and the machine from which it is sent produces a report that states that it was sent in full; or

(C) sent by e-mail to that person’s e-mail address and the machine from which it is sent produces a report that states that it was sent.

(b) When a notice is given

A notice other communication that complies with this Clause is regarded as given and received:

(i) if it is delivered or sent by fax or e-mail:

(A) by 5.00 pm (local time in the place of receipt) on a Business Day - on that day; or

(B) after 5.00 pm (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day - on the next Business Day; and

(ii) if it is sent by mail, three (3) Business Days after posting.

(c) Address for Notices

A person’s address, fax number and e-mail address are those set out in this document or the most recent notification from the person to the sender.

9.2 Further Acts

Each party shall promptly execute all documents and do all things that any other party from time to time reasonably requires of it to effect, perfect or complete the provisions of this document and any transaction contemplated by it.

9.3 Confidentiality

The parties must keep the conditions of the Agreement confidential except:

(a) to their professional advisers and financiers after they have given a written undertaking to maintain confidentiality; or

(b) to comply with any applicable Law.

9.4 Non-waiver

Failure by K5 to insist upon strict performance of any terms or conditions of this Agreement or failure to delay or exercise any rights or remedies provided in this Agreement does not preclude the Subscriber from any of the warranties of obligations of this Agreement, and shall not be deemed a waiver of any right of K5 to insist upon strict performance of any of its rights or remedies.

9.5 Exclusion of Contrary Legislation

Any legislation that adversely affects an obligation or right of a party under this Agreement is excluded to the full extent permitted by Law.

9.6 Inconsistency with Other Documents

If this Agreement is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency.

9.7 Entire Agreement

This Agreement contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty or other term relating to the subject matter is replaced by this Agreement and has no further effect.

9.8 Governing Law

This Agreement is governed and construed in accordance with the laws of Victoria. The parties submit to the non-exclusive jurisdiction of the Courts of Victoria with respect to any legal proceedings in connection with or relating to this Agreement.