Telstra Online Services Agreement (“TOSA”)

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Telstra Online Services Agreement (“TOSA”)BetweenTelstra Corporation Limited (“Telstra”)ABN 33 051 775 556and[Company Name] trading as [Trading Name] (“TOSA Dealer”)ABN [ABN/ACN]AcceptanceTelstra accepts the terms and conditions set out in the General Module and SaaSService Module of this AgreementThe TOSA Dealer agrees and acknowledges that by clicking “Yes” in the AcceptTerms section of the online application, the TOSA Dealer accepts and is bound bythe terms and conditions set out in General Module and SaaS Service Module of thisAgreement.V31

Telstra Online Services AgreementGeneral DetailsInterpretation – definitions are contained in the Dictionary sections of the General Terms and the ServiceModules. Any changes to the General Details must be agreed in writing and signed by both parties.1PartiesTelstra (“we”)NameABNAddressTelephoneFaxNameTOSA Dealer (“you”)ABN/ACN/ARBNRegistered OfficeTelephoneFaxTelstra Corporation Limited33 051 775 556242 Exhibition Street, Melbourne, Victoria,3000(03) 8627 8226(03) 9614 0671[Company Name] trading as [TradingName][ABN/ACN][Business Address compressed][Phone Number][Fax Number]2Execution DateDate of online acceptance of thisAgreement by the TOSA Dealer3Commencement DateDate of activation of the TOSA DealerCode by Telstra4Key Personnel[Managing iveTelstra addressTOSA DealerRepresentativeTOSA DealeraddressContract ManagerLevel 15, Rialto525 Collins Street,Melbourne Vic 3000Fax: (03) 9614 0671[Managing Director][Business Address compressed]Authorised LocationsDealer Code(s)[Business Address compressed][Dealer Code]Premise Code(s)2

Telstra Online Services AgreementGeneral TermsInterpretation – definitions are contained in the Dictionary sections of the General Terms and the ServiceModules.1Your obligations1.1Your appointment as TOSA Dealer: This agreement governs the basis on which you areappointed as a TOSA Dealer to promote the sale of our Services in Australia. You are appointedunder each Service Module as a TOSA Dealer to promote particular Services.1.2Promotion of us and our Services and good faith: You must do your best to procure customersto purchase the Services and promote and extend our goodwill. You must always act in good faithin your dealings with us in connection with this agreement.1.3Directions and procedures: You must comply with our directions in relation to the performanceof your obligations under this agreement including compliance with any administrative proceduresnotified and operations manuals issued by us from time to time.1.4Customer service: You must also comply with all applicable laws and industry guidelines andcodes of conduct in conducting your Business, including but not limited to the Trade Practices Act1974 (Cth) and state and territory fair trading legislation.1.5Promotion of competing services: Except to the extent that a Service Module providesotherwise in relation to one or more Services, you must not be (and you must ensure that your KeyPersonnel, Representatives and Associated Companies are not) involved directly or indirectly inthe promotion of any service that we reasonably believe competes with, or is a like or substitutableservice for, our Services.Your obligation to comply with this clause is a material obligation of this agreement, a breach ofwhich obligation is not capable of remedy.1.6Authorised dealership locations: You may only promote the Services and procure customerapplications for the Services from the Authorised Location/s listed in the General Details.The Dealer Code corresponding with each Authorised Location must be used when processingapplications for Services. The Dealer Codes are our Confidential Information. You must nottransfer or sell the Dealer Codes or allow any other person to use them or disclose them to anyother person without our written consent.1.71.8Records, reports and audit: You must:(a)keep complete and up-to-date records relating to your rights and obligations under thisagreement (including your privacy obligations) in such detail and format as we may requirefrom time to time;(b)permit anyone authorised by us to inspect and take copies of those records at anyreasonable time; and(c)provide us with written reports on the performance of your obligations under thisagreement if we request.Indemnity: You indemnify us and our Representatives from and against any liability, loss,damage, costs or expenses we or our Representatives incur or suffer arising directly or indirectlyfrom or in connection with any breach of this agreement by you, any act by or omission of you oryour Representatives including negligent or criminal acts or omissions, the termination of thisagreement (or part of this agreement) because of your breach and any penalty imposed under anyapplicable law relating to your performance of this agreement.Each indemnity in this agreement is a continuing obligation, separate and independent from yourother obligations and survives termination of this agreement.V33

Telstra Online Services AgreementGeneral Terms1.9Warranty regarding existing contractual obligations: You warrant that:(a)if applicable to you, you have completed registration in the Microsoft Partner Program andhave a current Microsoft advisor fee agreement on foot, and(b)that the creation and performance of this agreement by you will not infringe anycontractual obligation you owe to a third party.2Your relationship with us2.1Independent contractor: You are an independent contractor to us except to the extent that otherrelationships are expressly created under this agreement.2.2Relationship not to be misrepresented: You must not misrepresent your relationship with us. Inparticular you must not represent that you are Telstra, our subsidiary, division, partner or jointventurer. You must not represent that you are our agent except to the extent that you areexpressly authorised to do so under this agreement.3Informing customers about our Services3.1Information about the Services: When promoting a Service, you must provide accurateinformation to customers about the Service. You must not make any representation about aService, including its suitability for any particular use, compatibility with any equipment or system,performance or other characteristics that is inconsistent with information about the Service (suchas specifications or contract terms) we provide to you for supply to customers.4Customer applications4.1Applications: If we require an application form to be used, you must ensure that our currentapproved application form for that Service is used and is properly completed and, if required by theapplication form, signed by the customer and processed in accordance with this agreement andany direction from us from time to time.4.2Customer identification: When processing an application for a Service you must sightdocumentation verifying the customer‟s identity in accordance with our then current procedures.Any application form submitted without our required minimum standards of identification may berejected. If it is rejected, no remuneration for that customer‟s Service will be paid to you. Similarly,if a customer is not a genuine customer, no remuneration for that customer‟s Service will bepayable to you.5Your remuneration5.1Remuneration for each Service:V3(a)We will pay you for performing your obligations under this agreement in relation to aparticular Service in accordance with this clause and the Service Module for that Service.(b)You acknowledge and accept that if you are entitled to receive any payment fromMicrosoft Corporation by way of advisor fees for the sale and promotion of a service forwhich you are also entitled to receive payment from us under the terms of this agreement,then our payment to you satisfies Microsoft Corporation‟s obligation to pay you any advisorfees in relation to that Service.(c)Except to the extent that this agreement expressly provides otherwise, you are not entitledto any ongoing remuneration under this agreement (or a particular Service Module) oncethe agreement (or the relevant Service Module) terminates or expires. This will not affectany rights to remuneration that have accrued prior to the termination or expiry.4

Telstra Online Services AgreementGeneral Terms5.2Changing remuneration: We may change the remuneration payable in relation to a Service fromtime to time by sending you a new or replacement Service Schedule unless the Service Schedulerequires your consent to that change.5.3Rights preserved: A change to the remuneration payable in relation to a Service in accordancewith clause 5.2 will not affect any rights to remuneration that have accrued at the time the changetakes effect.5.4No entitlement to remuneration: We are not required to pay you under this agreement:(a)for services rendered to us after the date of expiration or termination of this agreement;(b)if you do not comply with your obligations under this agreement that relate to the event forwhich you claim payment; or(c)during (and for your activities in) any period in which you remain in breach of thisagreement (where we have notified you of a breach that we deem capable of remedy andyou have not rectified that breach).5.5Overpayments resulting from information you provide to us: If we overpay you, the amount ofthe overpayment will be a debt immediately due and payable to us. We may set off theoverpayment against amounts payable to you under this agreement.5.6Time for payments: Subject to clauses 5.8, we will use reasonable endeavours to pay anyamounts payable to you under this agreement in respect of a Service within 28 days of the end ofthe month in which we send the customer their first account for that Service unless the ServiceSchedule provides otherwise or the amount of the payment due to you is less than 150.00 inwhich case we may defer payment of that amount until the total amount payable to you exceeds 150.00.5.7Method for Payment: We may pay you by any method available to us, including electronic fundstransfer, direct deposit or cheque or bank cheque.5.8Disputes: If you wish to dispute the amount we consider you are entitled to be paid under thisagreement, you must give us notice within 6 months of the event you consider gives rise to yourentitlement. Any notice under this clause must be in the form specified by us for this purpose (ifany) and be accompanied by any documentation or information supporting your claim, includingany relevant application forms. We will process your claim in accordance with such terms andconditions as we notify you are applicable to remuneration claims from time to time.6Term and termination6.1Term of this agreement: This agreement commences on the Commencement Date set out in theGeneral Details and will continue until it is terminated under this clause or the last Service Moduleterminates or expires.6.2Termination by us: Either party may terminate this agreement:6.3(a)for convenience by giving 7 days notice of termination;(b)immediately if either party terminates the Microsoft Agreement in accordance with itsterms; or(c)if applicable to you, your registration in the Microsoft Partner Program is withdrawn orterminated.Termination for unremedied breach: Either party may terminate this agreement immediately bywritten notice if the other party:(a)V3is in breach of a material obligation which is not capable of remedy; or5

Telstra Online Services AgreementGeneral Terms(b)has failed to remedy the breach of a material obligation which is capable of remedy within14 days of receipt of a notice requiring it to do so.The identification of particular breaches of this agreement as “material” does not indicate that onlythose breaches are material. The identification of particular breaches of this agreement as“incapable of remedy” does not indicate that only those breaches are incapable of remedy.6.4Your obligations on termination: If this agreement is terminated or expires you must:(a)return any of our property in your possession or control including our documentation,stationery, merchandising material, loaned equipment and licensed associated softwareand within 7 days of termination certify that this has been done in a statutory declaration;(b)pay us any amount owing under this agreement within 7 days of termination;(c)immediately stop identifying yourself as our TOSA Dealer or being otherwise involved inthe promotion of our Services;(d)immediately stop using our Trade Marks;(e)immediately stop using documentation supplied to you under this agreement;(f)remove from your premises any signs, signwriting or other things suggesting a connectionwith us or the promotion of our Services;(g)immediately stop using and return to us (or destroy, if we direct) any ConfidentialInformation provided to you under this agreement; and(h)immediately stop using and return to us (or destroy, if we direct) all Telstra Customer Data.6.5Entry to premises: You authorise us and our representatives to enter your premises and removeany Trade Mark, sign, signwriting or other thing suggesting any connection with the promotion ofTelstra or our Services if you fail to comply with your obligations under clause 6.4.6.6Other termination and suspension rights: Further rights relating to the suspension ortermination of particular Services are set out in the Service Modules.6.7Survival of rights: The expiry or termination of this agreement does not affect any rights thathave accrued under the agreement or rights and obligations under clauses 6.4, 6.5 and 10 or anyother clauses of this agreement which by their nature survive termination.7How this agreement can be varied7.1Amendment of General Terms: These General Terms (including the General Details) may onlybe varied in writing signed by both parties, unless the General Terms provide expressly that oneparty may vary a particular term.7.2Amendment of Service Modules: The Service Terms (including those items of the ServiceDetails that are referred to in the Service Terms) may only be varied in writing signed by bothparties, unless the Service Terms provide expressly that one party may vary a particular term. Wecan amend, withdraw or replace a Service Schedule (including those items of the Service Detailsthat are referred to in the Service Schedule) at any time by notice to you unless that ServiceSchedule requires your consent to that change.8Privacy8.1General privacy obligation: You must comply with all the Privacy Laws in relation to PersonalInformation, whether or not you are an organisation bound by the Privacy Act 1988.V36

Telstra Online Services AgreementGeneral Terms8.2Specific privacy obligations: You:(a)must obtain from each of your contractors to whom information is disclosed under clause10.2(a), their written agreement to comply with Privacy Laws and the contract termshaving the same effect as this clause;(b)must not do anything or omit to do anything with Personal Information that will cause us tobreach any Privacy Law;(c)must take all reasonable steps to ensure that the Personal Information is protected againstany misuse, loss, unauthorised access, modification or disclosure; and(d)must ensure that your Representatives complete such privacy training as may be requiredto ensure your compliance with this clause.8.3Protecting Your Privacy statement: When collecting Personal Information from or about anindividual which will be disclosed to us you must provide the person with a copy of our ProtectingYour Privacy collection statement, as supplied by us from time to time.8.4Cross-border transfer of Personal Information: You must not transfer Personal Informationoutside Australia without our prior written consent.9Our Trade Marks9.1Terms and conditions of your use of our Trade Marks: You may be authorised under ServiceModules to use our Trade Marks in connection with the promotion of our Services and products.You acknowledge our sole ownership of the Trade Marks and right to control their use. You must:9.2(a)only use our Trade Marks strictly in accordance with our written instructions and anyspecifications which we may provide to you from time to time;(b)ensure that any proposed use by you of our Trade Marks has been approved by us beforeuse;(c)not display our Trade Marks in conjunction with trade marks applicable to goods orservices not marketed or supplied by us without our prior consent; and(d)cease any use of our Trade Marks in accordance with our instructions.Further provisions relating to our Trade MarksYou must permit us upon request to enter any premises at which you offer Services or products forsale in conjunction with our Trade Marks. You acknowledge and agree that:(a)we are the owner of our Trade Marks and we retain the right to control their use and thequality of the goods and services to which they attach;(b)the powers conferred on authorised users under section 26 of the Trade Marks Act 1995are expressly excluded;(c)your use of our Trade Marks is for the term of this agreement for sole purpose ofpromoting our Services and products in Australia; and(d)any goodwill and any other right, title or interest arising from your use of our Trade Marksaccrues solely for our benefit.You must immediately notify Telstra if you receive notice or otherwise become aware of anyinfringement, misuse of, unauthorised use of, act inconsistent with, challenge to, or claim, demandor suit against our Trade Marks (an “infringement”). We may in our sole and absolute discretionV37

Telstra Online Services AgreementGeneral Termstake such action as it deems necessary or desirable (including without limitation issuing,conducting or settling legal or administrative proceedings) in relation to an infringement.10Confidential Information10.1Use of Confidential Information: You must only use Confidential Information for the purposes ofthis agreement.10.2Disclosure of Confidential Information: You must not disclose Confidential Information except:(a)to your Representatives and Key Personnel to the extent necessary for the PermittedPurpose and, you must ensure that your Representatives and Key Personnel understandand comply with the obligations imposed by this clause;(b)as required by law, subject to you notifying us immediately if you become aware that sucha disclosure may be required; or(c)with our prior consent.10.3Protection of Confidential Information: You must take all steps reasonably necessary to ensurethat the Confidential Information is adequately protected from any unauthorised use, includingcomplying with instructions or requests from us. These steps include preventing unauthorisedpersons from gaining access to, saving, downloading or copying Confidential Information or toplaces or systems where Confidential Information is stored. “Unauthorised persons” as referred toin the previous sentence includes Representatives and Key Personnel who advise you they nolonger intend to be your Representatives or Key Personnel.10.4Notice of breach: You must immediately notify us of any unauthorised use or disclosure ofConfidential Information.10.5Remedies: You acknowledge that damages would not be an adequate remedy for breach of thisclause and that we are entitled to be granted specific performance or injunctive relief (asappropriate) as a remedy for breach or threatened breach in addition to any other availableremedies.10.6Indemnity: You indemnify us against any loss, liability or expense we suffer or incur in connectionwith any breach or threatened breach by you of your obligations under this clause.11Telstra Customer Data11.1Ownership of Telstra Customer Data: All Telstra Customer Data is and remains our propertyand nothing in this agreement or in any other related agreement confers any rights on you inrelation to Telstra Customer Data (including without limitation, intellectual property or otherproprietary rights).11.2Use of Telstra Customer Data: Subject to clause 11.4, you must only use Telstra Customer Dataduring the term of this agreement for the purpose that it is provided to you by us.11.3Prohibited use of Telstra Customer Data: You must not use or disclose Telstra Customer Datato develop a separate list of customers or customer information (for example by using TelstraCustomer Data to contact customers and compile a separate or updated list of customers orcustomer information).11.4Permitted uses and disclosures: You must not use or disclose Telstra Customer Data except:(a)V3to your Representatives and Key Personnel to the extent necessary for the PermittedPurpose and you must ensure that your Representatives and Key Personnel understandand comply with obligations imposed by this clause;8

Telstra Online Services AgreementGeneral Terms(b)as required by law, subject to you notifying us immediately if you become aware that sucha disclosure may be required; or(c)with our prior consent.12Notices12.1Notices and other communication: Subject to clause 12.2, a notice, direction, approval, consentor other communication in connection with this agreement including any writ of summons or otheroriginating process or any third or other party notice (“notice”) must be in writing and:(a)(b)must be marked:(i)if sent to us - for the attention of the person nominated in item 6 of the GeneralDetails; and(ii)if sent to you - for the attention of the person nominated in item 6 of the GeneralDetails (unless sent via a Dealer Communication System); andmust be left at, or sent by prepaid ordinary post (airmail if posted to or from a place outsideAustralia) to, the address of the addressee or sent by facsimile to the facsimile number ofthe addressee set out in item 6 of the General Details. We may also send notices to youvia the Dealer Communication System or any like or replacement system.12.2Electronic communications: We may provide notices to you via Dealer CommunicationSystems. It is your responsibility to check our Dealer Communication Systems regularly for anynotices or communications to you.12.3Time of effect of notices: A notice takes effect from the time it is received unless a later time isspecified in it.12.4Receipt of notices: A letter, facsimile or notice posted on a Dealer Communication System istaken to be received:(a)in the case of a posted letter, on the third (seventh, if posted to or from a place outsideAustralia) day after posting;(b)in the case of facsimile, on production of a transmission report by the machine from whichthe facsimile was sent which indicates that the facsimile was sent in its entirety to thefacsimile number of the recipient; and(c)in the case of a notice posted on a Dealer Communication System, at 9am on thebusiness day following the day the notice is posted on that system.13General13.1Entire agreement: This agreement constitutes the entire agreement of the parties about itssubject matter and any previous agreements, understandings and negotiations on that subjectmatter cease to have any effect. You acknowledge that in entering into this agreement you havenot relied on any representations or warranties about its subject matter except as provided in thisagreement.13.2Assignment: Neither party may assign any of its rights or obligations under this agreementwithout the written consent of the other party.13.3Limitation of our liability: We and our Representatives will not be liable to you for any indirect orconsequential loss or damage incurred or suffered by you in connection with this agreementV39

Telstra Online Services AgreementGeneral Terms(including as a result of our breach of this or any negligence on our part or on the part of ourRepresentatives).13.4Waiver: A provision of, or a right under, this agreement may not be waived except in writing signedby the party granting the waiver.13.5Governing Law: This agreement and the transactions contemplated by this agreement aregoverned by the law in force in Victoria.13.6Severability: If the whole or any part of a provision of this agreement is void, unenforceable orillegal in a jurisdiction it is severed for that jurisdiction. The remainder of this agreement has fullforce and effect and the validity or enforceability of that provision in any other jurisdiction is notaffected. This clause has no effect if the severance alters the basic nature of this agreement or iscontrary to public policy.13.7Exercise of rights: A party may exercise a right, power or remedy at its discretion, and separatelyor concurrently with another right, power or remedy. A single or partial exercise of a right, power orremedy by a party does not prevent a further exercise of that or of any other right, power orremedy. Failure by a party to exercise or delay in exercising a right, power or remedy does notprevent its exercise.13.8Remedies cumulative: The rights, powers, obligations and remedies provided in this agreementare cumulative with and not exclusive of the rights, powers or remedies provided by law or in equityindependently of this agreement.13.9Set-off: We may set-off any amount due to us from you or any of your Associated Companies,(whether or not the amount is due to us under this agreement), against any amount due to you byus.14GST14.1Recovery of GST: Where one party (“supplying party”) makes a taxable supply and theconsideration for that supply does not expressly include GST, the party that is liable to provide theconsideration (“receiving party”) must also pay an amount equal to the GST payable by thesupplying party.14.2Time for payment of GST amount: Subject to first receiving a tax invoice, the receiving partymust pay the GST amount when it is liable to provide the consideration.14.3Adjustments: If the amount of GST recovered by the supplying party from the receiving partydiffers from the amount of GST payable at law by the supplying party (or an entity grouped with thesupplying party for GST purposes) in respect of the supply, the amount payable by the receivingparty to the supplying party will be adjusted accordingly.14.4Indemnity and reimbursement payments: If one party must indemnify or reimburse anotherparty (“payee”) for any loss or expense incurred by the payee, the required payment does notinclude any amount which the payee (or an entity that is in the same GST group as the payee) isentitled to claim as an input tax credit, but will be increased under clause 14.1 if the payment isconsideration for a taxable supply.14.5Recipient Created Tax InvoicesV3(a)We can and will issue recipient created tax invoices in respect of any supplies by you to usunder this Agreement.(b)You must not issue a tax invoice in respect of any supply by you to us under thisAgreement unless we notify you that we will not be issuing a recipient created tax invoicefor that supply.(c)We are registered for GST purposes. We must notify you if we cease to be registered for10

Telstra Online Services AgreementGeneral TermsGST purposes or cease to satisfy the requirements for issuing recipient created taxinvoices as set out in the GST legislation or as determined by the Commissioner ofTaxation from time to time.(d)You are registered for GST purposes and have notified us of your ABN. You must notify usif you cease to be registered for GST purposes.(e)We must issue a copy of the recipient created tax invoice to you and must retain theoriginal. We must issue the copy within 28 days from the date the value of the relevantsupply is determined.14.6Change in the GST rate: If the GST rate changes after the date of this Agreement, anyconsideration that expressly includes GST must be adjusted to reflect the change in the GST rate.15General dictionary15.1Defined Terms: Capitalised terms that are used in this General Terms document but are notdefined below have the meaning given to those terms in the General Details (if any).Associated Company means a Related Body Corporate as defined in section 9 of theCorporations Act 2001 (Cth).Business means the business of promoting the Services under this agreement.Confidential Information means:(a)all information about our customers including Personal Information, customer informationcontained on an application form and customer lists in any form;(b)any other information relating to our business disclosed or developed (by either party)under or in connection with this agreement; and(c)any business processes or know-how disclosed under or in connection with thisagreement,but does not include any information that:(d)is in the public domain other than as a result of a breach of this agreement or an obligationof confidence; or(e)you can prove by contemporaneous written documentation was known to you independentof your dealings with us in connection with this agreement; or(f)you acquire from a source (other than us or our representatives) who was entitled todisclose it.Dealer Communication System means any electronic or web-based system that we notify youwill be used to provide notices to you.Key Personnel means your directors, officers and any person identified as key personnel in item 4of the General Details.Microsoft Agreement means the Online Services Reseller Agreement entered into betweenMicrosoft Corporation and us on [insert execution date].Microsoft Partner Program means the program that you and Microsoft Corporation enter into.Permitted Purpose means fulfilling your obligations under this agreement.V311

Telstra Online Services AgreementGeneral TermsPersonal Information means information or an opinion (including information or an opinionforming part of a database), whether true or not, and whether recorded in a material form or not:(a)about an individual whose identity is apparent, or can reasonably be ascertained, from theinformation or opinion; or(b)about the affairs or personal particulars of a legal entity such as a company or a business,which you receive or learn from any source as a consequence of or in the performance of yourrights and obligations under this agreement.Privacy Laws means:(a)the Privacy Act 1988 (Cth) and the Privacy Protection Policy issued by us; and(

Telstra Online Services Agreement General Terms V3 3 Interpretation – definitions are contained in the Dictionary sections of the General Terms and the Service Modules. 1 Your obligations 1.1 Your appointment as TOSA Dealer: This agreement governs the basis on which you are appointed as a TOSA

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