Australia Supplemental Terms and Conditions

These Australia Supplemental Terms and Conditions (“Australia Supplement”) are made under and form a part of Customer’s Agreement with Sinch. The definitions in the Agreement apply to any term not defined in this Australia Supplement.

1. Application. Clauses 2 to 14 (inclusive) of this Australia Supplement apply to customers domiciled or incorporated in Australia and who: (a) are defined as a ‘consumer’ or is a party to a ‘small business contract’ under Australian Consumer Law, Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“ACL”); or (b) is defined as a ‘Consumer’ under the Telecommunications Consumer Protections Code C628:2019 (as updated from time to time) (“TCP Code”).
   
   Clauses 15 to 17 (inclusive) of this Australia Supplement apply to any customers that may be subject to the Numbering Plan. The Numbering Plan means the rules and regulations issued by the regulator in the relevant jurisdiction in which Sinch provides the Services for issuing, transferring and changing telephone numbers including the Telecommunications Numbering Plan issued under the Telecommunications Act 1997 (Cth).
   
   This Australia Supplement does not apply to any customer who does not fall within at least one of these definitions. This Australia Supplement modifies the GTCs and any applicable Supplements. Where a section in this Australia Supplement conflicts with a section in the Agreement, the section in this Australia Supplement will prevail.

2. Australian Consumer Law. Nothing in the Agreement is intended to exclude, restrict, or modify the application of any implied condition or warranty, the exercise of any right or remedy, or the imposition of any liability under the ACL or any other statute, where to do so would be illegal or render any provision of this Agreement void.

3. Disputing Invoices. Notwithstanding Section 5.4 of the GTCs, if the Customer wishes to dispute a charge on its invoice, the Customer must do so within 12 months of the date of the invoice. The Customer is not prevented from disputing a charge simply because the Due Date for that invoice has passed.

4. Limitation of Liability and Indemnity. To the extent permitted by law, Section 9 (Limitation of Liability) of the GTCs and any similar section in a supplement, are modified so that Sinch’s liability for any failure to comply with a consumer guarantee is not limited.
   
   Section 10.1 (Indemnification by Customer) of the GTCs is modified to state that the Customer’s liability to indemnify Sinch is reduced proportionately to the extent that any act, error or omission by Sinch or its personnel contributed to the loss, damage, or claim.

5. Assignment of Agreement. Notwithstanding Section 12 of the GTCs, Sinch may assign or novate all or part of its rights and obligations under the Agreement to another entity (Assignee) provided that:
   
   (a) Sinch has notified the Customer and the Assignee is an Affiliate of Sinch and the Customer’s rights under the Agreement will not be materially prejudiced as a result of the assignment or novation; or
   
   (b) Sinch has notified the Customer and the assignment or novation is occurring as part of a sale of Sinch’s business or a business restructure and the Customer’s rights under the Agreement will not be materially prejudiced as a result of the assignment or novation; or
   
   (c) Sinch has provided the Customer with thirty (30) days’ prior notice of the assignment or novation.
   
   If the Customer does not agree to an assignment or novation pursuant to this Section, the Customer may terminate the Agreement by written notice to Sinch within thirty (30) days of Sinch giving the Customer such notice and no Early Termination Fee will be payable (to the extent one applies under the Agreement).
   
   The Customer cannot assign or novate all or part of its rights and obligations under the Agreement unless Sinch consents in writing, but such consent must not be unreasonably withheld by Sinch.

6. Modifications. Section 14.12 of the GTCs is replaced by the following for the purposes of this Australia Supplement:
   
   (a) If Sinch makes a change to the Agreement that is materially detrimental to the Customer (for example, by increasing a recurring fee or removing a key service inclusion), Sinch will give the Customer at least thirty (30) days’ prior written notice. This notice will explain the change and the Customer may terminate the Agreement without an Early Termination Fee (to the extent one applies under the Agreement) if the Customer does not accept the change.
   
   (b) For changes to the Agreement that are beneficial to the Customer, neutral, or of a minor detrimental nature, Sinch may notify the Customer no later than on their next bill after the change takes effect.

7. Liability for Fraudulent Usage. Section 2.2 of the Voice Supplement is modified so that the Customer’s liability for fraudulent usage will be assessed on a case-by-case basis, and the Customer will not be held liable for such usage to the extent it was contributed to by Sinch’s negligence or breach of its security obligations.

8. Telecommunications Regulatory Compliance. Sinch will comply with the TCP Code in its dealings with the Customer. A Critical Information Summary (CIS) for the Customer’s Services is available at https://sinch.com/legal/policies-statements/other-sinch-policies-statements/critical-information-summary/ and will be provided to the Customer in accordance with the TCP Code.

9. Financial Hardship. Sinch is committed to helping customers who are experiencing financial hardship. Sinch’s Financial Hardship Policy is available at https://sinch.com/legal/policies-statements/other-sinch-policies-statements/sinch-financial-hardship-policy/.

10. Complaints Handling. If a Customer has a complaint regarding Sinch’s Services, please contact Sinch. Sinch will handle a Customer’s complaint in accordance with Sinch’s Complaints Handling Policy, which is available on Sinch’s website at https://sinch.com/legal/policies-statements/other-sinch-policies-statements/sinch-complaints-handling-policy/. This Complaints Handling Policy explains Sinch’s complaint management process and the timeframes for handling a Customer’s complaint. It also explains a Customer’s right to refer a complaint to the Telecommunications Industry Ombudsman (TIO) if the Customer is not satisfied with Sinch’s proposed resolution.

11. Credit Management and Service Suspension. Notwithstanding any other clause in the Agreement, Sinch will only suspend or terminate a Customer’s Services for non-payment in accordance with the credit management rules set out in the Telecommunications Consumer Protections (TCP) Code. This includes providing the Customer with the required notices and opportunities to make a payment or enter into a financial hardship arrangement. Sinch will not suspend the Customer’s Services for exceeding a credit limit without providing the Customer with prior notice.

12. Set-Off. Sinch’s right to set-off any amount the Customer owes to Sinch against an amount Sinch owes the Customer will not be exercised in a way that is unfair. Sinch will not apply a set-off against a refund owed to the Customer to cover a debt that is the subject of a genuine, unresolved dispute.

13. Late Payment Fees. Sinch will not charge the Customer a late payment fee or interest if the Customer is complying with a financial hardship arrangement agreed with Sinch. Any late payment fees Sinch charges will be a reasonable and genuine pre-estimate of Sinch’s costs resulting from the Customer’s late payment.

14. Security. Notwithstanding any other term in the Agreement, neither Party will be liable for losses or costs arising from a security incident to the extent that the incident was caused or contributed to by the other Party’s negligence or breach of its obligations. Sinch will only suspend the Customer’s Services in response to a security risk where reasonably necessary and will provide the Customer with prior notice where practicable.

15. Telephone Numbers – General
    
    (a) Sinch must comply with the Numbering Plan. The Customer must not knowingly and deliberately: (i) do anything that causes Sinch to breach the Numbering Plan or which makes it more difficult for Sinch to comply with it; or (ii) relocate, reassign or transfer the number for any service except in accordance with Sinch’s published procedures, or otherwise as the law permits.
    
    (b) The Customer must not use any mobile number in connection with any internet of things (IoT) device, application or product. Mobile numbers have 10 digits and start with the digits ‘04’ or ‘05’.
    
    (c) The Customer acknowledges and agrees that the Services are not intended to support or carry emergency calls, and may not be technically able to support or carry out such calls. The Customer must not use the Services to operate an emergency call service or to connect users to emergency services, including police, fire or ambulance via 000 or 112. The Customer must ensure users have another way to make all emergency calls, such as a mobile phone or landline.

16. Numbers – numbers Sinch issues to Customers
    
    (a) A telephone number is considered ‘issued’ to a Customer when Sinch agrees with the Customer to the provision of a specific number for Customer’s use in connection with Sinch’s Services on the Sinch Network.
    
    (b) Numbers that Sinch uses in association with a Customer’s account are usually not issued specifically to the Customer. Some numbers are a digital mobile number that Sinch associates with multiple accounts (Shared Numbers). Sinch retains all rights, obligations and liabilities under the Numbering Plan and other legislation relevant to such Shared Numbers. The Customer acknowledges that no rights of use are passed to the Customer and the Customer has no right to retain or keep using a particular number when the Agreement ends.
    
    (c) However, if Customer’s Order Form states that Sinch will provide the Customer with a Dedicated Number/s (i.e. a specific digital mobile number provided by Sinch to the Customer under this Agreement for exclusive use by the Customer as part of and only for use with Customer’s Messaging Service), or Sinch agrees to let the Customer port a specific mobile services number to Sinch for use in connection with an account, then, once issued (if not already), the Customer is (or remains, as applicable) the rights of use holder of that number, and the Customer may therefore: (i) use that number while a Listed Carriage Service (as defined in the Telecommunications Act 1997 (Cth) which covers most public voice and data communication services) is provided on that number; (ii) originate communication via the Services on the Network provided by Sinch; (iii) have a communication of a type associated with that Service terminate on that number; and (iv) port that number, if it is a portable number, while a Service is active on that number (as set out in clause 17(a)). However, Sinch is not obliged to accept inbound porting. Unless the number is ported away on the Customer’s request at or prior to the time of cancellation of Services, the Customer’s rights of use of a number will end when the Customer cancels all Services, or the number is recalled.
    
    (d) Upon the Customer’s request, Sinch will provide the Customer with information about rights of use of a number in a timely manner.
    
    (e) Where Sinch issues the Customer with a number, Sinch has obligations in relation to the use of that number. The Customer can obtain further information about those obligations by going to Sinch’s webpage at https://sinch.com/legal/numbering-plan-your-rights-obligations-and-service-limitations/.

17. Numbers – Portability
    
    (a) Messaging Services are not a portable service within the meaning of the Numbering Plan. Other than Dedicated Numbers, or mobile numbers Sinch has specifically allowed the Customer to port in, a number Sinch uses in association with a Customer’s account: (i) is not a portable number; and (ii) is not subject to number portability – within the meaning of the Numbering Plan. For Australia, the Customer is not a ‘customer’ for the purposes of the Communications Alliance code titled Mobile Number Portability C570:2009.
    
    (b) If, despite clause 17(a), Sinch decides to agree to a request from the Customer to transfer a Shared Number to the Customer or to port a mobile number from the Customer for use in connection with an account – then, as far as the law allows, the Customer releases Sinch and Sinch’s third-party supplier(s) from all liability to the Customer, and the Customer indemnifies Sinch and them against all costs, expenses, liability, loss or damage or claims arising out of the following: (i) Sinch’s inability to transfer-in or transfer-out the number; or (ii) that the number is not, or ceases at any time to be, available for use in connection with an account.