- visitors to our websites at http://www.benkophone.com and https://www.benkoworks.com ("Websites") which are directed to our business contacts;
- our suppliers, vendors and business advisors;
- our existing, prospective and past customers;
- visitors to our offices; and
- authors of publicly available research material.
The terms You and Your shall be deemed to refer to your employer where this contract is undertaken with a person or corporation who/which operates as a contractor, subcontractor, employee or person/entity engaged in a work-for-hire arrangement with a customer of BenkoPhone.
What does BenkoPhone do?
BenkoPhone offers voice, video, mobile, and unified communications solutions for businesses of all sizes. More specifically, BenkoPhone offers a portfolio of SaaS and IaaS solutions encompassing hosted communications services, unified communications and video web conferencing. BenkoPhone has been delivering communication services since 2018 and our customers include small to medium-sized businesses. We are headquartered in Australia.
For more information about BenkoPhone and BenkoWorks, please see our Website.
What personal information does BenkoPhone collect and why?
If you are a visitor to our Websites, we may collect certain information automatically from your device. In some countries, including countries in the European Economic Area, this information may be considered personal information under applicable data protection laws. Specifically, the information we collect automatically may include information like your IP address, associated device type, unique device identification numbers, browser-type, operating system, broad geographic location (e.g. country or city-level location) and other technical information. We may also collect information about how your device has interacted with our Website, including the pages accessed and links clicked, when those pages were accessed, how long they were viewed.
Collecting this information enables us to better understand the visitors who come to our Websites, where they come from, and what content on our Websites is of interest to them. We use this information for our internal analytics purposes and to improve the quality and relevance of our Websites to our visitors.
Some of this information may be collected using cookies and similar tracking technology, as explained further under the heading Cookies and similar tracking technology.
If you are a prospective customer (who may also use our Websites), the personal information that we may collect about you falls broadly into the following categories:
Information that you provide voluntarily. Certain parts of our Websites may ask you to provide personal information voluntarily: for example, to submit an enquiry about our products and services, or to request a quote; to subscribe to marketing communications from us and/or to submit enquiries to us. We will use this information to communicate with your organisation about our Websites, products and services, to send you offers, for our other legitimate interests or those of a third party, or to comply with a legal obligation to which we are subject, for example to investigate and help prevent unlawful or potentially unlawful activity. We may also gather information from our prospective customers through offline communications, such as in-person meetings and phone calls, or corporate/industry events.
Calls with BenkoPhone’s sales, customer service and other BenkoPhone departments may be recorded to gather information to improve our customer service. However, if you would prefer that your call was not recorded, you can opt out by stating this, or by hanging up.
In general, the personal information that you are asked to provide, and the reasons why you are asked to provide it, will be made clear to you at the point that we ask you to provide your personal information; however, it may include: your full name, company, work email address, work phone number, country; and in relation to your employer your industry, revenue, number of employees and purchasing timeframe.
Information that we collect automatically. If you use our Websites to enquire about our products and services, or otherwise interact with us via a digital device, we may collect that information described more clearly in the "Website Visitors" section, above. We use this information to help us analyze how you use our Website and services and to better match your experience with our Websites and services to your organisation’s interests.
In addition, we may also collect information about your viewing of our emails (for example, information about whether or not you have opened the email), so we can understand the success of our email campaigns and improve our marketing.
Information that we obtain from third party sources
From time to time, we may receive personal information about you from third party sources (including third party websites, data brokers or credit reference agencies), but only where we have checked that these third parties either have your consent or are otherwise legally permitted or required to disclose your personal information to us.
The types of information we collect from third parties include biographical information about you and your job role or marketing information; and we use the information we receive from these third parties to help us market our products and services to you, or otherwise develop and improve our products and services.
If your organisation is a current customer (who may also use our Websites), we may already have collected information about you when your organisation was a prospective customer and we will continue to use this information in accordance with our data retention policies.
In addition, where your organisation is a current customer, the further types of personal information that we may collect about you falls broadly into the following categories:
Information that you provide voluntarily.
Once your organisation has entered into an agreement with BenkoPhone, we will collect and maintain information about that agreement, including your organisations’ payment information and information about its transactions. We also collect information to enable us to manage and deliver our online services, support and training, for example:
- we will collect your username and password for your organisation’s account when you register to use our services (including via our online portal);
- we may also collect additional personal information relating to you or your organisation, including your name, address, email address, telephone number and/or payment card details during the registration/payment process, or for emergency services registration;
- we will collect information relating to your (and your organisation’s) use of our services, including the phone numbers you dial or provide to our services, service set-up information, service configurations and settings, recorded calls, messages, and meetings, voicemails, incoming and outgoing faxes, user-saved or stored content shared among users, email and text communications, Call Records Data, and contact centre customer information you provide to us;
- Other information you choose to provide to us, for example the purpose of your visit if you visit one of our site locations or any feedback you provide to us in relation to your use of our Websites or services.
- if you register as a third party reseller or distributor, we may also collect personal data relating to you in the context of our reseller/distribution programme including your name, address, email address and telephone number.
We will use this information to process your organisation’s payments and to provide your organisation with the information, products or services that it has requested from us (including controlling access to those services, for example enabling your organisation to join meetings or to log into our portal); to respond to your enquiries and requests; to enable your organisation to register on our Websites; to administer records about your organisation’s account; quality control of and to improve our Websites and services; to provide you and your organisation with marketing and other communications about our products and services (where permitted by law); and for the purpose of general business or contract relationship management within BenkoPhone, including auditing the use of our services and establishing, exercising or defending any legal claims against us.
We may also use your personal information for our other legitimate business interests, including providing training and support; to manage any queries, complaints or claims relating to the services that BenkoPhone provides to your organisation; for entertainment purposes (e.g. to invite you to events) and to facilitate ongoing relationships; and for investigating and helping to prevent unlawful or potentially unlawful activity that threatens either BenkoPhone, any company affiliated with BenkoPhone, or any of our respective customers.
Calls with BenkoPhone’s sales, customer service and other BenkoPhone departments may be recorded to gather information to improve our customer service. However, we will let you know if your call is being recorded before we do so if you would prefer that your call was not recorded, you can opt out by stating this, or by hanging up.
Information that we obtain from third party sources
Suppliers and Business Advisors
If you are an employee of a supplier or business advisor, we may process the following personal information about you.
- Identification data – such as your name, date of birth.
- Contact details – such as business address, telephone/business email address;
- Professional details – such as job title/position, affiliated organisation, office location;
- Financial characteristics – such as your or your organisation’s account number and bank details.
- National identifiers – such as ABN of your organisation.
- Information relating to your transactional history with us.
- Other information you choose to provide to us, for example the purpose of your visit if you visit one of our site locations.
We may collect and use personal information about you for the following purposes:
- For the purpose of general business relationship management within BenkoPhone;
- To manage our daily business activities, such as executing payments and obtaining the goods, advice or services that we have purchased from your organisation;
- For entertainment purposes (e.g. to invite you to events) and to facilitate ongoing relationships with your organisation;
- To manage any queries, complaints or claims relating to the services your organisation provides to BenkoPhone;
- For product development purposes, to allow us to improve our products and services or develop new products and services;
- Where necessary to comply with laws and regulations, under judicial authorization, or to exercise or defend the legal rights of BenkoPhone;
- To help us conduct our business more effectively and efficiently or check and improve the quality of our products and/or services;
- To carry out research and development with various BenkoPhone Group Entities;
- To investigate violations of law or breaches of other BenkoPhone policies.
Visitors to our offices
When you visit one of our offices, you will be asked to provide your name and company to us. We collect this information for our legitimate business interests, including administrative, notification and housekeeping purposes.
Authors of publicly available research material
BenkoPhone carries out research for our legitimate business interests, more specifically to improve our business and technology. In order to do this we sometimes use publicly available research material. If you are the author of this material then we will collect and process information about you related to your research material such as your name, title, organisation and relevant qualifications.
Who does BenkoPhone share my personal information with?
We may disclose your personal information to the following categories of recipients:
- to our group companies, third party services providers and partners who provide data processing services to us, for example (i) to support the delivery of, provide functionality on, or help to enhance the security of our Websites or services, (ii) for quality control and assurance, or (iii) improving our services and developing new services. We may also share personal information with such third parties where we consider that such disclosure is necessary to protect the safety or legitimate business interests of those third parties, including to investigate suspected fraud or to trace debtors.
- to any competent law enforcement body, regulatory, government agency, court or other third party where we believe disclosure is necessary (i) as a matter of applicable law or regulation, (ii) to exercise, establish or defend our legal rights, or (iii) to protect your vital interests or those of any other person;
- to any other person with your consent to the disclosure.
Legal basis for processing personal information
This section applies to European Economic Area visitors only. If you are a visitor from the European Economic Area, our legal basis for collecting and using the personal information described above will depend on the personal information concerned and the specific context in which we collect it.
However, we will normally collect personal information from you only (i) where the processing is in our legitimate interests and not overridden by your rights, (ii) where the processing is a contractual necessity, or (iii) where we have your consent to do so. In some cases, we may also have a legal obligation to collect personal information from you or may otherwise need the personal information to protect your vital interests or those of another person.
If we ask you to provide personal information to comply with a legal requirement or to enter into a contact with your organisation, we will make this clear at the relevant time and advise you whether the provision of your personal information is mandatory or not (as well as of the possible consequences if you do not provide your personal information).
If we collect and use your personal information in reliance on our legitimate interests (or those of any third party), this interest will normally be to operate our websites or services and to communicate with you as necessary to provide our services to your organisation; as well as for our legitimate commercial interests, for instance, when responding to your queries, improving our Website or services, undertaking marketing, or for the purposes of detecting or preventing illegal activities. We may have other legitimate interests and if appropriate we will make clear to you at the relevant time what those legitimate interests are.
If you have questions about or need further information concerning the legal basis on which we collect and use your personal information, please contact us using the contact details provided below in the How to contact us section of website.
Cookies and similar tracking technology
How does BenkoPhone keep my personal information secure?
We use appropriate technical and organisational measures to protect the personal information that we collect and process about you. The measures we use are designed to provide a level of security appropriate to the risk of processing your personal information. Specific measures we use include SSL encryption technology for protection of sensitive information such as payments when in transit. We have industry-standard administrative, technical and physical safeguards in place to protect the confidentiality, integrity and availability of your personal information.
International data transfers
Your personal information may be transferred to, and processed in, countries other than the country in which you are resident. These countries may have data protection laws that are different to the laws of your country (and, in some cases, may not be as protective).
Specifically, our third party service providers and partners operate around the world. This means that when we collect your personal information we may process it in any of these countries.
Children are not eligible to use BenkoPhone’s website and services, and we ask that minors (under age eighteen) not submit personal information to us. If we become aware that we have inadvertently received personal information from an individual under the age of eighteen, we will delete this information from our records.
Information about others
We retain personal information we collect from you where we have an ongoing legitimate business need to do so (for example, to provide you with a service you have requested or to comply with applicable legal, tax or accounting requirements).
When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
EEA data protection rights
If you are a resident of the EEA you have the following data protection rights, except in the case that your “personal information" in the context of BenkoPhone is owned by a company of which you are an employee, contractor, freelancer or individual performing work for hire, in which case the “personal information" rights outlined below are bestowed upon your employer and the term “you" and “your" refers to your employer:
- If you wish to access, correct, update or request deletion of your personal information, you can do so at any time by contacting us using the contact details using the contact details provided below. You may also be able to access and update certain information via your online account.
- In addition, if you are a resident of the EEA, you can object to processing of your personal information, ask us to restrict processing of your personal information or request portability of your personal information. Again, you can exercise these rights by contacting us using the contact details provided below.
- You have the right to opt-out of marketing communications we send you at any time. You can exercise this right by clicking on the "unsubscribe" or "opt-out" link in the marketing e-mails we send you. To opt-out of other forms of marketing (such as postal marketing or telemarketing), then please contact us using the contact details provided below. If no “opt-out" link is provided you can always unsubscribe or opt-out by replying to any communication with a request in the English language to opt-out or unsubscribe in any reasonable manner, unless otherwise specified in the communication
- Similarly, if we have collected and processed your personal information with your consent, then you can withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of any processing we conducted prior to your withdrawal, nor will it affect processing of your personal information conducted in reliance on lawful processing grounds other than consent.
- You have the right to complain to a data protection authority about our collection and use of your personal information. For more information, please contact your local data protection authority. (Contact details for data protection authorities in the EEA, Switzerland and certain non-European countries (including the US and Canada) are available here.)
We respond to all requests we receive from individuals wishing to exercise their data protection rights in accordance with applicable data protection laws.
How to contact us
If you have any questions or concerns about our use of your personal information, please contact our data protection officer using the following details:
Working Software Group Pty Ltd
Suite 5, Level 2, 5 George Street
North Strathfield NSW 2137
Depending on which of our Websites and services you use, the data controller of your personal information will be the Working Software Group Pty Ltd that your organisation has contracted with, or otherwise the Website operator.
1.1 The national emergency access number in Australia is 000 ("Emergency Number"). 112 Dialing is not supported by BenkoPhone. The Emergency Number can be accessed, free of charge, if the Service is fully operational and if accessed within Australia. There is no registration process to establish Emergency Number dialing. However, You understand and acknowledge that there may be some limitations as set out in the following paragraphs.
1.2 If You use the Service outside Australia You will not be able to call the Emergency Numbers in the country where you are located, or such calls may be routed to an incorrect answering point.
1.3 If there is a Service outage for any reason, such outage may prevent access to Emergency Number dialing, such as, but not limited to, electrical outages and broadband service outages.
1.4 You must register with BenkoPhone the primary physical location where the Service will be used. Your location will be registered as a part of subscribing to the Service. It is Your responsibility to maintain the accuracy of Your location address if there are any changes. You can do this for most Services by emailing email@example.com. If You do not update BenkoPhone with changes to the location of where the Service is being provided, it may or may not be possible for emergency operators and authorities to identify Your location and phone number when You dial the Emergency Number. Location information of Your primary office as notified to BenkoPhone will only be provided to emergency services; extension information may not be provided to emergency services.
1.5 When You dial the Emergency Number You will need to state Your location and phone number promptly and clearly, as emergency operators and authorities may not have this information. The emergency operator may ask for specific information to correctly transfer Your call to a local emergency services department such as police, fire brigade, rescue, coastguard, etc.
1.6 Emergency operators and authorities may or may not be able to identify Your phone number in order to call You back if the call is unable to be completed, is dropped or disconnected, or if You are unable to speak to tell them Your phone number and/or if the Service is not operational for any reason. Emergency operators and authorities may also not be able to hold Your line open in the event You hang up.
1.7 You agree to inform users of the Service of the above limitations and You understand and accept that You should always have an alternative means of accessing emergency services than through BenkoPhone’s Service.
2. NUMBER USAGE AND PORTING.
You always retain control and ownership of Your number, and can ensure the ability to port the number without incurring any costs by emailing firstname.lastname@example.org and requesting a service as such,
2.3 Any change to the date of Your number transfer due to the Porting Activation Requirements not being completed shall not constitute a delay or abuse in porting and shall not give rise to a claim for compensation.
3. DATA PROTECTION.
3.2 You acknowledge that BenkoPhone relies on Customer for direction as to the extent to which we are entitled to use and process the Personal Data You provide us with. Consequently, we will not be liable for any claim brought by a data subject arising from any action or omission by us, to the extent that such action or omission resulted from Your instructions.
3.3 In order to provide the Services, BenkoPhone may transfer Personal Data to its Affiliates to store and process such Personal Data on servers located in the United States or other jurisdictions outside of Australia. Customer specifically and expressly consents to such transfers upon acceptance of the Customer Agreement, and acknowledges that Australian Privacy Principle 8.1 will not apply to such disclosure. Customer further agrees and consents to BenkoPhone and the service providers that BenkoPhone utilizes to assist in providing the Services to Customer having the right to access Customer’s account and to use, modify, reproduce, distribute, display and disclose Customer Data, including any Personal Data, to the extent necessary to provide the Services, including, without limitation, in response to Customer support requests. Any third-party service providers BenkoPhone utilize will only be given access to Customer’s account and Customer Data as is reasonably necessary, in BenkoPhone’s discretion, to provide the Service and will be subject to: (i) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in the Customer Agreement and (ii) their agreement to comply with the Personal Data restrictions, including transfer restrictions, set forth in this Clause 3.
3.4 BenkoPhone will promptly notify Customer if BenkoPhone receives a request from a person to access to that person’s Personal Data; a complaint or request relating to Customer’s obligations under applicable data protection legislation; or any other communication relating directly to the processing of any Personal Data in connection with the Customer Agreement. BenkoPhone will provide You with reasonable co-operation and assistance in relation to any complaint or request made in respect of any Personal Data processed by BenkoPhone on Your behalf, including by providing You with details of the complaint or request, complying with any data subject access, rectification or deletion requests (within the relevant timescales set out in applicable data protection legislation) and providing You with any Personal Data we hold in relation to a person making a complaint or request (again, within a reasonable timescale).
3.7 If You receive Personal Data through the use of the Service, You must keep such information confidential and only use it in connection with the Service. You may not disclose or distribute any such information to a third party or use any such information for marketing purposes unless You receive the express consent of the user to do so. You may not disclose any acquired Personal Data to any third party, other than in connection with processing of transactions or the provision of Services requested by end users of the Service.
3.8 BenkoPhone will delete all other Customer Data and any Personal Data it may hold within a reasonable period of closure of Customer’s account, or upon BenkoPhone’s reasonable determination that the information is no longer necessary for the purposes for which such information was collected or retained, in BenkoPhone’s sole discretion. You acknowledge that BenkoPhone may archive Customer Data and Personal Data rather than delete such data while You remain a customer of BenkoPhone or an BenkoPhone Affiliate.
3.9 For purposes of this Clause 3, "Personal Data" includes "personal information" as defined in Australia’s 1988 Privacy Act.
4. SERVICE INFORMATION.
4.1 The following additional information is provided with respect to Services offered or provided in the Australia:
BenkoPhone adheres to the Telecommunications (Customer Service Guarantee) Standard 2011, as may be amended from time to time.
5. CHARGE OF GST
5.1 The prices set forth in the Customer Agreement are inclusive of any goods and services tax (GST) payable by Customer. The parties confirm that the Equipment and Services provided to Customer are provided to Customer and not to a resident agent.
- TERMS AND CONDITIONS. These terms and conditions ("Terms and Conditions") are an integral part of the agreement ("Agreement") between Working Software Group Pty Ltd T/A BenkoWorks ("BenkoPhone") and the customer ("Customer") of the BenkoPhone services. Any BenkoPhone services or products (collectively, the "Services") provided by BenkoPhone to Customer shall be governed by the terms and conditions herein. By ordering, purchasing or using the Services, CUSTOMER AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. They affect the legal rights between Customer and BenkoPhone by, among other things, (1) requiring MANDATORY ARBITRATION OF DISPUTES; (2) charging an EARLY TERMINATION CHARGE and DISCONNECTION FEE; and (3) LIMITING BenkoPhone’s LIABILITY UNDER THE AGREEMENT.
- DEFINITIONS. The following terms shall have the meanings set forth below.
2.1 "Agent" means a Customer employee or contractor who may use the Services, the total number of Agents being the maximum number of personnel who may use the Services at any one time.
2.2 "Customer Data" means any data, information or other materials of any nature whatsoever provided to BenkoPhone by Customer in the course of implementing or using the Services.
2.3 "Documentation" means user manuals and other documentation relating to the Services, which are made available to Customer by BenkoPhone, in the form of recorded documentation on optical or magnetic media, accessible via the Internet or in the form of printed media.
2.4 "Implementation Services" means the services selected by Customer, as indicated on the Service Order, to be provided by BenkoPhone in connection with the set up and implementation of the Services. Unless otherwise agreed to in a Service Order, as part of the Implementation Services, Customer will receive limited training in the set up and activation of the Services during the hours from 9:00am to 3:00pm AEST Monday through Friday.
2.5 "Initial Payment" means the initial payment set forth in the Service Order consisting of activation fees, the fees for Implementation Services, Equipment and shipping charges (if any), the Service Fees for the first month and other related taxes and fees.
2.6 "Login" means each separate, named individual login account within a Customer account.
2.7 "Professional Services" means work BenkoPhone will perform for Customer as specified in individual statement(s) of work ("Statement(s) of Work" or "SOW(s)") to be agreed upon by the parties from time to time on the terms and conditions specified in the Agreement.
2.8 "Service Fee" or "Service Fees" means the monthly or annual fees set forth in the Service Order to be paid by Customer to BenkoPhone as consideration for BenkoPhone’s provision to Customer of the Services.
2.9 "Service Order" means the service order, quote or document agreed upon by Customer and BenkoPhone, containing (i) a price and quantity of Services, and Implementation Services to be provided to Customer by BenkoPhone under the Agreement, along with associated telecommunications fees; (ii) the Services to be provided; and (iii) such other options provided on the Service Order as Customer may elect to apply to the Services.
2.10 "Service Plan" means the monthly, annual or longer term subscription plan a Customer agrees to in the Service Order.
2.11 "Services" means the products or services that are being provided to Customer as described in the Service Order, including any Additional Services set forth in an addendum to the Service Order accepted by BenkoPhone.
2.12 "Text Message" means a short message service text message consisting of text per the Global System for Mobile communications alphabet.
2.13 "Software" means any proprietary software (including any documentation relating to such software) owned by, licensed by, or which BenkoPhone has a right to sublicense under this Agreement, which software is either provided to Customer under this Agreement or is used in or used to provide the Services.
- BenkoPhone PRODUCTS AND SERVICES. During the Initial Term or Renewal Term of this Agreement, BenkoPhone will provide the Services, set forth in the Service Order, including telephone and other equipment (collectively, "Equipment") subject to the terms and conditions herein. BenkoPhone hereby grants Customer access to the Services for use by the number of Agents and Logins set forth in the Service Order, for Customer’s own internal business purposes, which shall be deemed to include activities Customer may perform on behalf of its own customers. Subject to the terms and conditions herein, BenkoPhone grants Customer the right to use the Documentation in connection with its use of the Services.
3.1. CONDITIONS. Customer acknowledges and agrees that BenkoPhone’s obligations to provide the Services are expressly conditioned upon (i) Customer’s payment of the fees for Professional Services and all Service Fees as and when due, and (ii) Customer adherence to the technical requirements for the Services set forth in the Documentation for the Services made available to Customer by BenkoPhone, as the same may be updated by BenkoPhone from time to time.
3.2. ADDITIONAL SERVICES. At Customer’s option, the number of Services may be increased at any time during the Initial Term or Renewal Term (any such increase, "Additional Services") by Customer entering into an addendum to its Service Order that sets forth the specific Additional Services desired. Each addendum to a Service Order shall be subject to BenkoPhone’s acceptance, which shall be deemed given if BenkoPhone thereafter provides the Additional Services. Upon acceptance by BenkoPhone, such Service Order addendum shall be deemed an amendment to the Agreement, subject to all of the terms and conditions herein, and the Service Fees shall be increased to reflect the Additional Services, subject to the same pricing and payment terms as are set forth in the Service Order. Additional Services shall be provided for a term that is coterminous with the Initial Term or Renewal Term of the Agreement.
3.3. IMPLEMENTATION SERVICES. BenkoPhone will use commercially reasonable efforts to perform the Implementation Services covered in the Initial Payment.
3.4. ADDITIONAL PROFESSIONAL SERVICES. If Customer requests Professional Services, such as support services not provided under this Agreement, training, or other consulting services, BenkoPhone may (but has no obligation to) provide such Professional Services or recommend appropriate outside consultants. If BenkoPhone agrees to provide such additional Professional Services at Customer’s request, fees for such Professional Services may be provided pursuant to a fixed fee or BenkoPhone ‘s standard time and material rates as provided in an agreed upon Service Order or SOW, or addendum to the same.
4.1. INITIAL TERM. The initial term of this Agreement ("Initial Term") begins on the date that Customer enters into the Agreement and continues in force and effect for a one-year period unless another term of service is agreed upon in the Service Order or Customer has entered into a multi-year master service agreement with BenkoPhone.
4.2. RENEWAL. Except as set forth in Section 4.3, at the end of the Initial Term, the Agreement is automatically renewed for an additional one year period (a "Renewal Term"), and shall be renewed at the end of each Renewal Term for an additional one-year Renewal Term, at the then-current rates unless Customer provides BenkoPhone, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to cancel the service.
4.3. MONTH-TO-MONTH RENEWAL. Instead of renewal under Section 4.2 or cancelation, a Customer shall have the option, upon expiration of the Initial Term or any Renewal Term, to renew the Agreement on a month-to-month basis at the list price offered for the Services. Customer will be converted to a month-to-month basis if Customer provides to BenkoPhone, at least thirty (30) days prior to the end of the Initial Term or applicable Renewal Term, notification of intention to convert to month-to-month service.
5.1. TERMINATION FOR CONVENIENCE. Either party may terminate the Agreement upon thirty (30) days’ notice of termination to the other party. In accordance with Section 10.7, in the event of termination by Customer under this Section 5.1 during the Initial Term or any Renewal Term, an early termination charge will apply and disconnection fees and other charges may also apply. Any Equipment returned in conjunction with a cancelled Service Order or termination under this clause may also be subject to a restocking fee. If Customer transfers or ports a Number or Ported Number (as defined in Section 12) to another service provider, Customer must notify BenkoPhone in order to cancel any Services related to such Numbers or Ported Numbers or service charges will continue.
5.2. IMMEDIATE TERMINATION. BenkoPhone shall be entitled, in good faith, and in its reasonable discretion, to suspend, terminate or change the Services without advanced notice for Customer’s material breach of the Agreement, suspected fraud or any misuse of the Services that adversely affects the Services, BenkoPhone, BenkoPhone’s network or other Customers’ use of the Services. BenkoPhone may require, and if required, Customer shall pay, an activation fee as a condition to changing or resuming a suspended or terminated account. In accordance with Section 10.7, in the event of termination by BenkoPhone under this Section 5.2 during the Initial Term or any Renewal Term, an early termination charge will apply and disconnection fees and other charges may also apply.
5.3. EFFECT OF TERMINATION ON FEES. Upon termination of this Agreement, in addition to any applicable early termination charge, disconnection fees and other charges under Section 10.7, Customer shall be responsible for the full monthly Service Fees for the month in which termination occurs, the following month and any applicable usage charges. Expiration or termination of the Agreement does not alleviate Customer of responsibility for paying all unpaid, accrued charges due hereunder.
- EMERGENCY CALL ACCESS: Customer acknowledges and agrees that BenkoPhone’s equipment and services supports access to emergency call services, but that this access will not be available in the event of a power failure or other event that materially and adversely affects BenkoPhone’s ability to provide the services. Emergency calls can be made using fixed/PSTN or mobile phone services.
7. Other Service Limitations.
7.1. AVAILABILITY. Customer acknowledges and agrees that the Services will not be available 100% of the time. Credit allowances for interruption of the Services shall not be provided.
7.2. TEXT MESSAGING LIMITATIONS. The Text Message Services support transmission of Text Messages from a single device to another single device, and do not support group messaging. In the event that a transmitted Text Message is destined for an address connected to a third party network and that network is unreachable at the time delivery is attempted, the Text Message will be stored and queued for future delivery. BenkoPhone will employ commercially reasonable efforts to minimize lost data from the bodies of Text Messages.
7.3. CRITICAL SAFETY APPLICATIONS. Customer understands that the Services are not authorized for use in critical safety or other applications where any failure may reasonably be anticipated to result in bodily injury, loss of life or catastrophic damage to property.
- EQUIPMENT. To provide the Services, BenkoPhone may provide Equipment to Customer. All Equipment shipments are F.O.B. shipping point. BenkoPhone’s liability for delivery shall cease, and title (if applicable) and all risk of loss or damage shall pass to Customer upon delivery to carrier. Customer will be provided a twelve (12) month manufacturer’s warranty from the date of purchase of Equipment or Services. Customer shall be required to obtain authorization from BenkoPhone to return any Equipment. BenkoPhone will provide replacement Equipment only if the Equipment is deemed to be defective and covered under the warranty. BenkoPhone will not cover replacement for lost, stolen or modified Equipment. Equipment returned by Customer that is not covered under warranty may be refused by BenkoPhone, and Customer will be responsible to pay return shipping charges. BenkoPhone may refuse to provide Services to any party that has purchased refurbished BenkoPhone equipment from a third party.
- CUSTOMER DATA. Customer hereby grants, subject to Section 22 (Privacy), to BenkoPhone a non-exclusive, non-transferable (except in connection with an assignment of this Agreement) license to copy, store, record, transmit, display, view, print, and use Customer Data, solely to the extent necessary to provide the Services to Customer. Except as expressly provided in this Section, Customer grants to BenkoPhone no right, title, interest, or license in the Customer Data, and Customer hereby reserves for itself and its licensors all rights in and to all Customer Data. Notwithstanding the foregoing, BenkoPhone shall be permitted to disclose Customer Data to third parties as and to the extent required by law (including, without limitation, pursuant to a court order or subpoena).
10. BILLING, CHARGES AND PAYMENT.
10.1. PAYMENT OF SERVICE FEES. Customer will pay the Service Fee for Services ordered by Customer, and all other amounts due under the Agreement, pursuant to the terms of this Section 10. All fees, including Service Fees, payable under the applicable Service Plan shall be non-refundable and non-creditable.
10.2. CREDIT TERMS. All Services provided to Customer and covered by the Agreement shall at all times be subject to credit approval or review by BenkoPhone. Customer will provide such credit information or assurance as is requested by BenkoPhone at any time. BenkoPhone, in its sole discretion and judgment, may discontinue credit at any time without notice or require a deposit.
10.3. BILLING. BenkoPhone will provide Customer with a monthly on-line billing statement for the Services provided each calendar month or pro-rata amount and billed on a fixed monthly period based on start date, and bill all charges invoiced to Customer’s account. Such charges shall include activation fees, monthly Service Fees, shipping charges, disconnection fees, Equipment charges, toll charges, taxes and any other applicable charges. Monthly Service Fees are paid in advance of each month’s Service; toll charges and any other applicable charges are billed subsequent to the end of each month’s service. Unless otherwise specified by BenkoPhone, billing for monthly Service Fees commences upon ordering of the Services. The first month’s Service Fee shall be prorated to take into account any partial calendar month that may occur as the result of the date monthly Service Fees are initiated.
10.4. LATE/NON-PAYMENT. If any charges for the Services are due but unpaid for any reason including, but not limited to, non-payment, BenkoPhone may suspend or terminate the Services and all accrued charges shall be immediately due, plus a late fee of the greater of ten dollars ($10.00) or 1.5% per month (but in any event no greater than the maximum amount permitted by law). A fee will also be charged to activate a suspended account. No suspension or termination of the Services or of this Agreement shall relieve Customer from paying any amounts due hereunder.
10.5. TAXES. Prices for the Services do not include any customs duties, sales, use, value added, excise, federal, state, local, public utility, universal service or other similar taxes. All such taxes shall be paid by Customer and will be added to any amounts otherwise charged to Customer unless Customer provides BenkoPhone with an appropriate exemption certificate. If any amounts paid for the Services are refunded by BenkoPhone, applicable taxes may not be refundable.
10.6. REGULATORY RECOVERY FEE. A regulatory recovery fee will be charged monthly to offset costs incurred by BenkoPhone in complying with inquiries and obligations imposed by federal, state and municipal regulatory bodies/governments and the related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. The regulatory recovery fee will apply to every Number and Ported Number (as defined in Section 12), including toll free and virtual numbers.
10.7. EARLY TERMINATION CHARGE, DISCONNECTION FEES AND OVERAGE FEES.
- EARLY TERMINATION CHARGE. UNLESS OTHERWISE PROVIDED FOR IN THE AGREEMENT, If a Customer terminates the Agreement, or some of the Services provided under the Agreement, before the end of the Initial Term or any Renewal Term (the "Terminated Term"), BenkoPhone will charge Customer, and Customer will pay, an early termination charge equal to 100% of the Monthly Service Fee for the terminated Service(s) multiplied by the number of months remaining in the Terminated Term on the date of termination.
- DISCONNECTION FEES. In lieu of the early termination charge contemplated by paragraph (A) above, BenkoPhone may, in its sole discretion, charge the following disconnection fees:
- If a Customer terminates a Service Plan (excluding a Plus Extension) associated with Equipment within twelve (12) months of the initial purchase of the Services, BenkoPhone shall charge a service disconnection fee of fifty-nine dollars and ninety-nine cents ($59.99) for each item of Equipment.
- If a Customer terminates a Plus Extension Service Plan within twenty-four (24) months of the initial purchase of the Services, BenkoPhone shall charge a disconnection fee of two hundred dollars ($200.00) for each Plus Extension.
- If a Customer terminates an Extended Payment Plan within twenty-four (24) months of the initial shipment of the related Equipment or such other Initial Term specified in the Service Order, Customer shall immediately pay to BenkoPhone the monthly amount due for the subject Equipment multiplied by the number of months remaining in the terminated Extended Payment Plan term on the date of termination.
In the event the foregoing disconnection fees exceed the early termination charge otherwise applicable under paragraph (A) above, such disconnection fees shall automatically be charged in lieu of the early termination charge. Disconnection fees shall be invoiced to Customer when Customer notifies BenkoPhone of the cancellation of the Services. The Virtual Office Pro Softphone Edition and Virtual Office Solo plans are on month-to-month agreements and are not subject to the disconnection fee.
- OVERAGE AND OTHER CHARGES. If the Terminated Term is the Initial Term, BenkoPhone will also charge Customer, and Customer will pay, any unpaid non-recurring charges waived at the beginning of the Initial Term. BenkoPhone reserves the right to charge overage fees when Customer exceeds the usage limits on applicable services, including, but not limited to, recording services on Virtual Meeting licenses and Virtual Office Pro extensions.
- SERVICE DOWNGRADES. A Customer may not reduce the number of lines or seats, or the number of services, provided under a Service Plan during the Initial Term or any Renewal Term without BenkoPhone’s consent unless otherwise provided in the Agreement. Any reduction in the number of lines or seats under a Service Plan shall be treated as a termination of Service under this Section 10.7 with respect to those lines or seats. Any reduction or downgrading of Services shall be treated as a termination of Service under this Section 10.7 with respect to the applicable Services. BenkoPhone’s acceptance of any proposed reduction in lines, seats or services shall not release customer from its obligations to pay applicable fees and charges under this Section 10.7 unless BenkoPhone expressly agrees in writing to waive such fees and charges.
10.8. RATE CHANGES. Rates will not be increased during the Initial Term, with the exception of tax or fee changes and international toll calling rates. Otherwise, BenkoPhone may change the prices for the Services, toll charges, fees and taxes, from time to time. In the event of a change in prices or toll charges, BenkoPhone will post such changes to its website currently located at https://www.BenkoPhone.com. International toll calling rates are updated monthly on the first of each month and no other notice shall be provided for changes to international toll calling rates. The Service Fees effective upon any renewal of the Agreement shall be BenkoPhone’s then-current Service Fees for the applicable Services.
10.9. DISCOUNTS. From time to time in its sole discretion, BenkoPhone may offer promotions or discounts of activation or other fees. Any promotion or discount codes must be provided to BenkoPhone upon purchase of the Services. Customer shall not be entitled to a subsequent credit for such promotions or discounts, if not requested at the time of account creation or change of service. Promotions and/or discounts may not be used cumulatively or be used for services retroactively. Promotions may be changed at BenkoPhone’s sole discretion.
10.10. BILLING DISPUTES. Customer must dispute any charges for the Services in writing to BenkoPhone within thirty (30) days of the date of the charge by BenkoPhone. If Customer fails to provide a written statement disputing the charges within such time, Customer waives any objection and further recourse with regard to such charges. Written statements disputing charges must be sent to: Billing Department, BenkoPhone, Inc. 675 Creekside Way, Campbell, CA 95008 -or- claims@BenkoPhone.com.
- TOLL CHARGES. Every call using the Services that originates or terminates in the Public Switched Telephone Network ("PSTN"), including other VoIP networks, is subject to the then applicable toll charges that are associated with the Service Plan, which BenkoPhone will include in bills and Customer will pay. For Customers subscribed to Virtual Contact Center ("VCC") Services, every PSTN call to or from a VCC tenant and to or from a VCC agent is subject to applicable toll charges at BenkoPhone’s then current rates or as otherwise specified in a Service Order. Calls to a non-BenkoPhone telephone phone number outside the United States and Canada will be charged at the current rates published on the BenkoPhone website. The duration of each call is to be calculated in one-minute increments and rounded up to the nearest one-minute increment for any fraction of minutes used. If the computed charge for a call includes a fraction of a cent, the fraction is rounded up to the nearest whole cent When Customer dials an international PSTN phone number, charges may apply regardless of whether the party on the other line answers the call. Calls made by a Customer to an international mobile, rather than landline, or premium rate telephone number, may result in higher toll charges. Charges to Customer for inbound toll free numbers are subject to the geographic restrictions and location of the person calling into the toll free number.
- TELEPHONE NUMBER. Any telephone number provided by BenkoPhone ("Number") to Customer shall owned entirely by the customer and can be ported to another customer at any time without penalty. Except with regard to telephone numbers which had been assigned to Customer by another service provider and then ported to BenkoPhone ("Ported Numbers"), BenkoPhone reserves the right to change, cancel or move Numbers in its reasonable discretion. Upon termination of the Services under Section 5.1 and at Customer’s request, BenkoPhone will employ commercially reasonable efforts to assist Customer to port out the Numbers and the Ported Numbers and BenkoPhone will charge a port out fee of $5.00 per Number or Ported Number. Customer acknowledges that the porting of all Numbers and Ported Numbers is dependent upon the cooperation of third parties not under the control of BenkoPhone.
- MONITORING SERVICES USE. Customer agrees that BenkoPhone is entitled to monitor Customer’s use of Service, at BenkoPhone’s expense. Customer may also be subject to a preliminary fraud review and approval process for select BenkoPhone services.
- LOST, STOLEN, ALTERED OR BROKEN EQUIPMENT. Customer shall not modify the Equipment in any way without the express written permission of BenkoPhone. Customer shall not use the Equipment except with the Services provided hereunder. Except as otherwise provided for hereunder, Customer is responsible for all lost, stolen or broken Equipment and may be required to purchase a replacement to continue to use the Services. Replacement charges will be based on the fair retail price of Equipment, plus applicable shipping costs and taxes. Customer shall immediately notify BenkoPhone of any lost or stolen Equipment and shall cooperate with BenkoPhone in all reasonable aspects to eliminate actual or potential unauthorized use of the Equipment. At BenkoPhone’s sole option, failure to report lost or stolen Equipment in a timely manner will cause Customer to be responsible for all Service Fees accrued until the time that BenkoPhone is informed of the loss or theft and BenkoPhone is entitled to terminate the Services and Agreement following Customer’s breach of this Section. Equipment not provided by BenkoPhone shall not be used by Customer unless specifically agreed to in writing by BenkoPhone. Equipment not provided by BenkoPhone shall not be supported by BenkoPhone.
- PROHIBITED USES.
15.3. TEXT MESSAGES. With respect to any texting, Text Messages or other mobile messaging Services, Customer shall not use the Services in violation of the Mobile Marketing Association Guidelines or any network/wireless carrier requirements, conditions or codes of practice. All Text Messages are subject to BenkoPhone’s policies and conditions, including without limitation the provisions of this Section 15 (Prohibited Uses) and the maximum permissible Text Message length. BenkoPhone reserves the right to segment, truncate, or otherwise reduce the length of any Text Message or to refuse to transmit and/or deliver a Text Message that does not comply with BenkoPhone or any third party network operator’s policies or conditions.
- USE, STORAGE AND OTHER LIMITATIONS. BenkoPhone reserves the right to establish or modify general practices and limits concerning use of the Services and Software. Where practical, BenkoPhone will provide Customer with prior notice of such new or modified practices.
- ELECTRONIC RECORDING. Customer acknowledges and understands that there are federal and state statutes governing the electronic recording of telephone conversations and that BenkoPhone will not be liable for any illegal use of the service. Because Customer circumstances vary widely, Customers agrees to carefully review its own circumstances when deciding whether to use the recording features of the service and it is Customer’s responsibility to determine if the electronic recordings are legal under applicable federal and state laws. When using electronic recording features, Customer agrees to use one of the BenkoPhone recommended call recording notices, although such use does not relieve Customer from the obligation to comply with applicable laws. BenkoPhone is not responsible for any misinterpretation, lack of understanding or lack of knowledge regarding the use of electronic recordings or the use of its products by Customer, whether legal or illegal, and Customer will indemnify and hold BenkoPhone harmless for any claims, damages, fines, or penalties arising out of Customer’s failure to adhere to applicable electronic recording laws". Customer agrees that BenkoPhone may, at its sole discretion, record any call between BenkoPhone and Customer for BenkoPhone quality control purposes.
- RESPONSIBILITY FOR REGISTRATION INFORMATION AND CONTENT OF CUSTOMER COMMUNICATIONS. Customer is solely responsible for maintaining the confidentiality of Customer’s Login, and will not transfer Customer’s Login, email address or password, or lend or otherwise transfer use of or access to the BenkoPhone Services, to any third party. Customer is solely responsible for any and all activities that occur under Customer’s account. Customer will comply with applicable foreign, federal, state, and local law in its use of the Services, including but not limited to laws regarding online behavior, acceptable content, the import or export of Equipment and the transmission of information under applicable export laws. Recognizing the global nature of the Internet, Customer also agrees to comply with applicable local rules or codes of conduct (including, if applicable, codes of conduct or policies imposed by employers) regarding online behavior and acceptable content. Use of the Services is void where prohibited. Customer will immediately notify BenkoPhone of any unauthorized use of Customer’s account or any other breach of security related to Customer’s account or the BenkoPhone Services. BenkoPhone is not liable for any loss or damage arising from Customer failure to comply with any of the foregoing obligations. In consideration for using the BenkoPhone Services, Customer will: (1) provide certain current, complete, and accurate information about Customer when prompted to do so by BenkoPhone and the Services, and (2) maintain and update this information as required to keep it current, complete and accurate. Customer warrants that any such information will be accurate. Customer agrees that Customer is solely responsible for the content of all visual, written or audible communications ("Content") sent by Customer or displayed or uploaded by Customer in using the Services. Customer acknowledges that neither BenkoPhone nor its vendors are responsible for any Content. Customer retains copyright and any other rights already held in Content that Customer submits, posts or displays on or through, the Services. Customer understands and agrees that by displaying, exchanging or uploading Content to a BenkoPhone website, transmitting Content using the Services or otherwise providing Content to BenkoPhone, Customer automatically grants (and warrants and represents that Customer has a right to grant) to BenkoPhone a world-wide, royalty-free, sub-licensable (so BenkoPhone affiliates, contractors, resellers and partners can deliver the Services) license to use, modify, publicly perform, publicly display, reproduce and distribute the Content solely in order to provide the Services to Customer, including associates websites ("Sites").
- RESPONSIBILITY FOR CONTENT OF OTHERS. Customer acknowledges that Agents or other users of the Services ("Users") may violate one or more of the above prohibitions, but BenkoPhone assumes no responsibility or liability for such violation. If Customer becomes aware of misuse of the Services by any person, please contact BenkoPhone Customer Support at +61 424 261 976. BenkoPhone may investigate any complaints and violations that come to its attention and may take any action that it believes is appropriate, including, but not limited to issuing warnings, removing the content or terminating accounts and/or User or Agent profiles and/or Login. However, because situations and interpretations vary, BenkoPhone also reserves the right not to take any action. Under no circumstances will BenkoPhone be liable in any way for any data or other content available on a Site, viewed or actions taken while using the Services, including, but not limited to, any errors or omissions in any such data, content or activity or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data, content or activities incurred from the actions taken on a Site. BenkoPhone does not endorse and has no control over what Users or Agents post, submit to or do on a Site. Customer acknowledges that BenkoPhone cannot guarantee the accuracy of any information submitted by any Agent or User of a Site, nor any identity information about any Agent or User. BenkoPhone reserves the right, in its sole discretion, to reject, posting or other data, or to restrict, suspend, or terminate any User’s or Agent’s access to all or any part of any Site at any time, for any or no reason, with or without prior notice, and without liability. BenkoPhone reserves the right to investigate and take appropriate action against anyone who, in BenkoPhone’s sole discretion, is suspected of violating this Agreement, including without limitation, reporting Customer or any User to law enforcement authorities.
- CHANGES TO THE AGREEMENT, SERVICES OR SERVICE PLAN. BenkoPhone reserves the right to make changes to the terms and conditions of these Terms and Conditions and/or the Services ("Change of Service") from time to time. In the event of a Change of Service, BenkoPhone will post to the website currently located at https://www.benkoworks.com/benko-privacy-terms
- NOTICE. Notice of a Change of Service will be considered received by Customers and such changes will become binding on Customers, on the date the changes are posted to https://www.benkoworks.com or other websites owned and managed by BenkoWorks ("Change Date"), and no additional notice will be required; provided, however, that any Change of Service that would reasonably be expected to be materially adverse to Customer shall not be binding on Customer unless BenkoPhone has notified Customer of such change in accordance with Section 35. If Customer does not send BenkoPhone notification of their desire to terminate the Agreement within 30 days after the Change Date, or continues to use the Services after such time, Customer is deemed to have accepted and consented to the Change of Service. If Customer does not consent to the Change of Service and terminates this Agreement, Customer will be responsible for any sums due hereunder.
- RETURNS AND ADJUSTMENTS. No Equipment may be returned by Customer for any reason without prior approval of BenkoPhone. All returns shall be in original packaging or equivalent. Customer shall be responsible for all costs related to shipping to BenkoPhone any Equipment that is being returned. Any Equipment returned to BenkoPhone without prior authorization for its return or proper packaging may be refused. In order to obtain an appropriate refund, upon cancellation Customer must immediately obtain a return material authorization number from BenkoPhone, return to BenkoPhone any Equipment provided hereunder, undamaged and in good working condition, in its original packaging and with its original content or otherwise will be immediately responsible for paying to BenkoPhone an amount equal to the fair retail price of the Equipment minus any payments Customer had previously paid specifically for such Equipment.
- TECHNICAL SUPPORT. BenkoPhone provides technical support to Customers via telephone, e-mail, text messages, pictures messages and on-site visits for the Services and the Equipment provided hereunder. Support for other applications and uses is not provided or implied and except as stated in this Section, BenkoPhone has no obligation to provide additional technical support.
- REIMBURSEMENT IN CONNECTION WITH BREACH. In the event of Customer’s breach of the Agreement, including without limitation, failure to pay any sum due hereunder, Customer shall reimburse BenkoPhone for all attorneys’ fees and court, collection and other costs incurred by BenkoPhone in the enforcement of BenkoPhone’s rights hereunder and BenkoPhone may keep any deposits or other payments made by Customer.
- INDEMNIFICATION. Without limiting Section 25, Customer agrees to defend, indemnify and hold BenkoPhone, and its affiliates, directors, officers, employees, attorneys, agents, and vendors harmless from any claims, damages or losses (collectively, "Losses") relating to or arising out of Customer’s (a) use or misuse of the Services, (b) breach of this Agreement or (c) fraud, except (in the case of clauses (a) and (b)) to the extent such Losses relate to or arise out of BenkoPhone’s breach of this Agreement.
- WARRANTIES. BenkoPhone warrants that the Services will substantially conform to the Documentation during the term of this Agreement. BenkoPhone will use commercially reasonable efforts to pass through to Customer manufacturers’ warranties on Equipment.
- DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 27 THE AGREEMENT AND AS REQUIRED BY LAW, THE PRODUCTS AND OTHER SERVICES PROVIDED HEREIN ARE PROVIDED "AS IS" AND BenkoPhone MAKES NO WARRANTIES AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NEITHER BenkoPhone NOR ITS VENDORS WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO BenkoPhone’S OR CUSTOMER’S TRANSMISSION FACILITIES OR PREMISE EQUIPMENT OR FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT OR DESTRUCTION OF CUSTOMER’S DATA FILES, PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A RESULT OF BenkoPhone’S OR ITS VENDORS’ NEGLIGENCE. NEITHER BenkoPhone NOR ITS VENDORS WILL BE LIABLE FOR MALFUNCTIONS OR FAILURES RESULTING FROM MISUSE, ABUSE, NEGLECT, ALTERATION, MODIFICATION, IMPROPER INSTALLATION, OR REPAIRS BY ANYONE OTHER THAN BenkoPhone. NEITHER BenkoPhone NOR ITS VENDORS WILL BE LIABLE FOR DELAYS OR INTERRUPTIONS IN ACCESS TO OR USE OF THE SERVICES RESULTING FROM CUSTOMER’S EQUIPMENT, USE OF THE INTERNET, OR TELECOMMUNICATIONS SYSTEMS NOT UNDER BenkoPhone’S CONTROL, AND BenkoPhone SHALL HAVE NO LIABILITY FOR ANY SUCH DELAYS OR INTERRUPTIONS.
- EXCLUSIVE REMEDY. BenkoPhone’s SERVICES COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. BenkoPhone LIMITS ITS LIABILITY FOR REMEDIES, TO THE EXTENT PERMITTED BY LAW, TO THOSE REMEDIES AVAILABLE UNDER THE AUSTRALIAN CONSUMER LAW IF BenkoPhone IS IN BREACH OF THESE GUARANTEES.
- LIMITATIONS OF LIABILITY. IN NO EVENT SHALL BenkoPhone OR ITS VENDORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS, OR ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE SERVICES OR PRODUCTS PROVIDED HEREUNDER WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF BenkoPhone OR ITS VENDORS OR OTHERWISE. IN NO EVENT SHALL BenkoPhone’S TOTAL LIABILITY HEREUNDER EXCEED THE AMOUNTS PAID BY CUSTOMER TO BenkoPhone IN THE PRIOR TWELVE (12) MONTHS FROM THE DATE OF CLAIM.
- IMPORT AND EXPORT COMPLIANCE. Customer agrees to comply with Australian export laws, and applicable import and export laws that may apply in Customer’s location(s), concerning the transmission of technical data and other regulated materials via the Services, including, without limitation, laws governing the import and export of encryption software.
- PHONE NUMBERS AND WEB PORTAL DISCONTINUANCE. Upon expiration, cancellation or termination of the Services, Customer shall relinquish and discontinue use of any Numbers (except as provided for in Section 12), voice mail access numbers, Logins and/or web portals Sites assigned to Customer by BenkoPhone or its vendors, or make requests to have numbers ported to a different telecommunications provider of their choice prior to or at the time of requesting termination or cancellation of the Services.
- SOFTWARE COPYRIGHT. The Software is protected by copyright law and international treaty provisions. The Software is subject to the terms and conditions in licenses of third parties, and BenkoPhone will use commercially reasonable efforts to pass through licenses for Software sublicensed to Customer in providing BenkoPhone’s Services. Customer has no right to inspect, possess, use, copy, or attempt to discover the source code (or any portion thereof) used to create any Software, except to the extent that Customer is expressly permitted to decompile the Software under applicable law and Customer notifies BenkoPhone of Customer’s intention to decompile the Software and Customer’s reason to do so.
- SURVIVAL. The provisions of Sections 1, 2, 5.3, 6.8, 10, 12, 22, 23, 25, 26, 28, 29, 30, 32 and 34 to 42 (inclusive) shall survive any expiration or termination of the Agreement.
- NOTICES. BenkoPhone communicates with Customers primarily via email. Notices to Customer shall be sent to the email address specified by Customer at the time Customer ordered the Services or as subsequently specified by Customer ("Email Address"). Customer is responsible for providing BenkoPhone with a valid Email Address and notifying BenkoPhone of any Email Address changes. Customer agrees that sending a message to the Email Address is the agreed upon means of providing notification except as otherwise expressly provided in this Agreement (including, without limitation, in Section 21). Email is used to communicate important information about the Services, billing, changes to the Services and other information. The information is time-sensitive in nature. It is required that Customer read any email sent to the Email Address in a timely manner in order to avoid any potential interruption in the Services provided hereunder. All notices and communications required or permitted to be sent to BenkoPhone under this Agreement shall be in writing and sent to the following address or email address:
Director of Customer Success, BenkoPhone ℅ BenkoWorks
Suite 5, Level 2, 5 George Street
North Strathfield NSW 2137
- FORCE MAJEURE (EVENTS BEYOND OUR CONTROL). BenkoPhone shall not be liable for any failure or delay in the performance of its obligations hereunder that are directly or indirectly caused by or resulting from events beyond BenkoPhone’s reasonable control, including, without limitation, acts of God, fire, flood, hurricane, earthquake, tsunami, riot, war, terrorism, government actions and intervention, embargoes, strikes, destruction of facilities, late or failed delivery by suppliers, or unavailability of power or Internet services.
- ENTIRE AGREEMENT. The terms and conditions of this Agreement including any terms contained in an applicable Service Order, or Service Agreement entered into by the parties (if any) along with the rates posted to the website currently located at https://www.BenkoPhone.com or otherwise agreed to as part of the Agreement, constitute the entire agreement with regard to this sale and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating to the Services. The terms and conditions of the Agreement are in lieu of and replace any and all terms and conditions set forth in any documents issued by Customer, including, without limitation, purchase orders and specifications. ANY ADDITIONAL, DIFFERENT, OR CONFLICTING TERMS AND CONDITIONS ON ANY SUCH DOCUMENT ISSUED BY CUSTOMER AT ANY TIME ARE HEREBY OBJECTED TO BY BenkoPhone, AND ANY SUCH DOCUMENTS SHALL BE WHOLLY INAPPLICABLE TO ANY SALE MADE OR SERVICE RENDERED HEREUNDER AND SHALL NOT BE BINDING IN ANY WAY ON BenkoPhone. Except as set forth in Section 20, no waiver or amendment to this Agreement or these terms and conditions shall be binding on BenkoPhone unless made in writing expressly stating that it is such a waiver or amendment and signed by an officer of BenkoPhone.
- GOVERNING LAW. The Agreement and the relationship between Customer and BenkoPhone shall be governed by the laws of the State of California without regard to its conflict of law provisions and any applicable federal and international laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
- NO WAIVER. The failure of BenkoPhone to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.
- SEVERABILITY. The unenforceability of any provision or provisions of the Agreement shall not render unenforceable or impair its remainder. If any provision of the Agreement is deemed invalid or unenforceable in whole or in part, the Agreement shall be deemed amended to delete or modify, as necessary, the invalid or unenforceable provision to render it valid, enforceable, and, insofar as possible, consistent with the original intent of the parties.
- ASSIGNMENT; BINDING EFFECT. Customer shall not assign this Agreement or delegate Customer’s duties hereunder without BenkoPhone’s prior written consent. Each party represents and warrants to the other that the persons signing any Service Orders or otherwise contracting on their behalf hereunder are their authorized representatives. Subject to the foregoing, this agreement shall be binding upon the heirs, representatives, successors, and permitted assigns of BenkoPhone and Customer.
- HEADINGS. The headings in the Agreement are solely for the convenience of reference and shall not be given any effect in the construction or interpretation of this Agreement.