Business Terms & Conditions

 

 

For mobile service terms, please refer to the information in the mobile section

 

 

This area sets out our General and Enterprise customer terms and conditions. The terms apply to supply of MyNetFone products and services from 1 January 2015, and you must comply with them unless we have agreed different terms. You need to read these documents to understand the agreement and your rights and obligations.

General terms


If you are a residential user, business or non-profit organisation, and you acquire a service primarily for personal or business use (but not for resale), and you have an annual spend with us of less than $20,000, and you did not have an opportunity to negotiate the contract terms with us, our General terms and conditions apply.

Enterprise terms


If you are a business or non-profit organisation and have an annual spend with us of more than $20,000, or if you had the chance to negotiate the contract terms with us, or if you purchase our service for resale, or if you are a government customer, our Enterprise terms and conditions apply.


 

 

1. THE AGREEMENT


(a) (When these General Terms apply) These General Terms are our standard terms and conditions for a customer (you/your) who:

(i) acquires a product or service for the primary purpose of personal, domestic or household use and not for resale; or

(ii) is a business or non-profit organisation which acquires a product or service for business use (or other use which is not personal, domestic or household use), but not for resale, and has, or we reasonably estimate will have, an annual spend with us of $20,000 or less, and did not have a genuine and reasonable opportunity to negotiate the terms of the contract with us.

(b) (Carriers and Carriage Service Providers) You represent and warrant to us that you are not a Carrier or Carriage Service Provider. You must notify us immediately, if you are, become, or operate as a Carrier or Carriage Service Provider. We may cancel or suspend the Service immediately by notice to you if we reasonably believe that you are, become, or operate as a Carrier or Carriage Service Provider and in that case, we may enter into an agreement with you for the supply of wholesale services.

(c) (What is the Agreement) An Agreement is created between you and us when we accept your order for goods or services. It is a standard form of agreement under the telecommunications legislation and you and we must comply with it. The Agreement is made up of the following documents:

(i) your order;

(ii) the Critical Information Summary;

(iii) the Service Description; and

(iv) these General Terms.

(d) (How to read the Agreement) You need to read these General Terms, your order, the Service Description and the Critical Information Summary for the Service you order to understand the Agreement and your rights and obligations. Words that start with a capital have defined meanings, set out in clause 16. You need to read the definitions in that clause to understand the meanings of those words.

(e) (Inconsistencies) If there is any inconsistency among the documents which make up the Agreement, the Agreement is interpreted by giving priority first to clause 10 (Liability) of these General Terms, second to your order, third to the Critical Information Summary, fourth to the Service Description and fifth to these General Terms (excepting clause 10 (Liability)).

(f) (For a copy and assistance) You can obtain a copy of these General Terms, the Service Description and the Critical Information Summary from our website or by contacting our customer service team. For assistance to read this document, contact our customer service team, the National Relay Service on 133 677 or the Translating and Interpreting Service on 131 450.

 

2. TERM


(a) The Agreement commences when we accept your order and continues until you or we cancel the Service as permitted under clause 9 of the Agreement.

(b) If you order a Service with a Fixed Contract Period, the Service will be supplied from the Start Date and continue, subject to the terms and conditions of the Agreement, for the Fixed Contract Period and after that period, month to month unless either you or we give notice of cancellation 30 days before expiry of the Fixed Contract Period. Either you or we can cancel the Service earlier as set out in clause 9, but you may incur a Break Fee if the Service is cancelled, or if you wish to change the plan for the Service, within the Fixed Contract Period. On expiry of the Fixed Contract Period, we can vary the Charges and other terms by giving you 30 days’ notice beforehand.

(c) If you order a Service with no Fixed Contract Period, the Service will be supplied from the Start Date and continue, subject to the terms and conditions of the Agreement, on a month to month basis until you or we cancel it as set out in clause 9.

 

3. SERVICE ORDERS AND CHANGES


(a) Your order specifies the equipment, the Service, the plan and the Fixed Contract Period (if any) which you order and which apply to the Agreement. The Service is described in the Service Description for that Service.

(b) To place an order, you must be at least 18 years of age. You must provide us with complete and accurate information as requested in our order form (or otherwise) and all consents we reasonably require in connection with the Service. If you do not do this, it may affect the way we assess your order and any credit terms, as well as cause delays, and you may incur additional costs of equipment delivery and provisioning the Service. You must promptly notify us of any change to your contact or other details stated in the Order.

(c) All orders are subject to our acceptance. When we receive your order, we assess it based on factors including your eligibility for the Service, availability of the Service to you and your credit risk. As part of this assessment, we may carry out a credit check. We may decide to accept or reject an order, or accept an order subject to provision of financial security or other conditions. If we reject your order, we will tell you our reasons. Any additional terms and conditions you state on an order are excluded from the Agreement unless we agree otherwise in writing.

(d) Before you place an order, you must identify your own requirements and verify that the Service and any equipment you order meet those requirements.

(e) After we have accepted your order, you can only cancel your order or the Service as permitted under clause 9.1, and you can only change your order or the Service as permitted under clause 14, and you may incur a Break Fee or other charges as a result.

(f) By ordering the Service, you:

(i) represent and warrant that you meet the customer eligibility criteria for the Service, if any, specified in the Agreement;

(ii) acknowledge and agree that the Service has the limitations, restrictions and qualifications stated in the Agreement;

(iii) warrant that you have authority to order the Service to be installed and connected as specified in the Order and you authorise us to undertake any work, order any equipment, and appoint us your agent to deal with other network suppliers, as required to connect and supply the Service in accordance with the Agreement; and

(iv) agree to pay us all Charges in connection with the Service, and to comply with any conditions and your obligations stated in the Agreement.

 

4. SUPPLYING THE SERVICE


(a) We will supply the Service as described in the Service Description from the Start Date subject to the terms and conditions of the Agreement.

(b) We will supply the Service and any equipment within a reasonable time after accepting your order and receiving any initial payment which may be required. We may choose not to commence the process until after a cooling off period (if any) has expired. Before we can connect a service, we may need to order, configure or install equipment and make arrangements with our suppliers, which may impact connection and delivery dates. We aim to meet any service and equipment connection and delivery dates we have given you but those dates are estimates and not guarantees, and except as required otherwise by law, we are not liable for any failure to meet them.

(c) Given the technology, we do not guarantee that we can provision and connect every service and we may cancel a Service under clause 9.2 if we determine that we will be unable to provision or connect it within a reasonable time after accepting your order.

(d) We choose the method of provisioning and supplying the Service and we can use a combination of infrastructure and services of our own or provided by third parties. We may at any time vary the method, infrastructure and services which we use to supply the Service and we and our suppliers may make changes to the Service and the infrastructure and services used to supply the Service at any time provided such variation or change does not materially impair supply of the Service.

(e) We will supply the Service using due care and skill but given the technology, we do not guarantee voice quality or data download speeds or other quality of service of a particular standard, or continuous access to the Service at all times, or that the Service will be fault free or uninterrupted or in the case of a data service, that any material sent or received will be sent or received correctly, except if we have agreed otherwise with you in writing or if the law requires otherwise. Quality of service can vary by location and is affected by many factors outside our control, including the customer equipment you use, distance from the exchange and the quality of the line connecting the exchange to your premises.

(f) You are responsible for providing, installing, operating, upgrading and keeping in good working order all Customer Equipment unless stated otherwise in the Critical Information Summary or Service Description, or we agree otherwise in writing. You are also responsible for obtaining all necessary consents and approvals (including landlord or building manager approval if required) in connection with the Service, and for providing adequate power supply and a suitable physical environment for equipment.

(g) You must arrange to give us safe access to your premises promptly when we ask if we need access to provision, connect, supply, install, maintain, support, upgrade, or repair the Service, and on cancellation to remove the Service. You must also, if we ask, arrange that your suitably qualified representative is available onsite to assist. If you do not, you may incur additional charges and connection, service and repair times may be impacted.

 

5. EQUIPMENT


5.1 Customer Equipment

(a) You must ensure that all Customer Equipment complies with applicable Australian laws and standards and our reasonable directions and is suitably provisioned and configured, and compatible for use with the Service.

(b) You must upgrade or reconfigure the Customer Equipment as we may reasonably request at any time, including as a result of changes to the infrastructure used to supply the Service.

(c) We may disconnect Customer Equipment from the Service if, in our reasonable opinion, it may interfere with or disrupt the Service.

(d) You acknowledge and agree that if Customer Equipment is faulty or not compatible, it may affect your ability to access the Service, the quality of the Service or our ability to provide support to you.

 

5.2 Purchase of equipment from us

(a) This clause 5.2 applies if you purchase equipment from us (including by instalment payments or by bundling with the Service).

(b) If you receive the equipment in damaged or incomplete condition, you must notify us immediately and follow our directions.

(c) Your ownership of equipment we sell you commences when you have paid in full for it, and your responsibility for all risk of loss or damage to it commences on delivery of the equipment to you.

(d) The equipment we supply you may be locked and programmed to work only with the infrastructure used to supply the Service. If you ask us, we may (but are not obliged to) agree to unlock the equipment and in that case, we will not be liable to you for any associated loss, damage, expense or liability, except if we have been negligent.

(e) If you change the electronic serial number or equipment identifier of the equipment or perform a factory reset of equipment we supply you, we will not be liable to you for any resulting impact on our ability to supply the Service or to provide you with remote support, and you must pay our reasonable charges for any additional costs incurred as a result. It may also affect any rights and remedies you may have in relation to supply of the equipment.

(f) You are responsible for installation, upgrade and maintenance of all equipment you purchase from us unless we agree otherwise in writing.

(g) Until your ownership commences under clause 5.2(c), we retain legal and equitable ownership of the equipment. If you sell equipment in which we retain ownership, you sell as principal not as our agent, you must hold the proceeds of sale in a separate account on trust for us and you have a duty to account to us for the proceeds. This retention of ownership constitutes the grant of a purchase money security interest by you in favour of us in respect of all present and after-acquired equipment which we supply to you (refer to clause 5.4).

(h) Until ownership passes to you under clause 5.2(c), you must comply with the obligations set out in clause 5.3(d).

(i) If the equipment we supply you has the benefit of a warranty, details will be stated in the warranty information on our website.

(j) If for any reason we provide you replacement equipment in advance of receiving the original equipment from you, we will bill you our standard retail price for the equipment. The charge will be cancelled when we receive the original equipment from you. If we do not receive the original equipment, or we have no obligation to repair or replace the equipment under warranty or other legal obligation, then you must pay us the charges billed.

 

5.3 Our Equipment

(a) This clause 5.3 applies if we loan or rent Our Equipment to you in connection with the Service.

(b) We own Our Equipment at all times and ownership of Our Equipment does not pass to you even at the end of the loan or rental period.

(c) You are responsible for any loss of or damage to Our Equipment from the time of delivery to you until it is returned to us.

(d) You must, in respect of Our Equipment:

(i) keep it in your control at all times and at the premises to which we delivered it or other premises we have agreed to in writing;

(ii) not loan, rent, give or sell Our Equipment to any other person, or allow a security interest, charge, lien or encumbrance to be created over it, not attach it to any real property and not remove from it any nameplate identifying Our Equipment as our property;

(iii) only use it in connection with the Service and for the manufacturer’s intended purpose;

(iv) obtain all necessary consents and approvals (including landlord or building manager approval if required) for installation;

(v) provide a suitable physical environment for installation and operation including an adequate power supply;

(vi) install, operate and maintain the equipment in accordance with manufacturer’s requirements and our directions;

(vii) not change the electronic serial number or equipment identifier or perform a factory reset of it without our prior written consent;

(viii)comply with our directions; and

(ix) make sure that anyone using the equipment complies with your obligations under this clause 5.3(d).

(e) You must allow us to inspect, service, upgrade, reconfigure, repair, replace or disconnect Our Equipment at any time we reasonably request and ensure that no other person modifies, services, upgrades, reconfigures, repairs or disconnects Our Equipment except with our prior written consent.

(f) You must notify us immediately, and follow our directions, if Our Equipment is damaged or incomplete when you receive it, or if at any time Our Equipment is lost, damaged, stolen or becomes faulty while in your care custody or control.

(g) On cancellation of the Service for any reason, the loan or rental of Our Equipment is automatically cancelled. We may cancel the loan or rental of Our Equipment immediately at any time by giving you notice:

(i) if, in our reasonable opinion, you are in breach of any obligation under this clause 5.3; or

(ii) if we are entitled to cancel the Service.

(h) On the sooner of expiry or cancellation of any agreed loan or rental period, you must permit us to enter onto the premises where Our Equipment is located and to disconnect and remove it, or if we request, at your cost, and in accordance with our directions, immediately return Our Equipment to us in good condition (except fair wear and tear).


5.4 PPSA & Security Interest

(a) This clause 5.4 applies to the extent that the Agreement creates or evidences a security interest in equipment (and in proceeds of sale equipment) including equipment to which we retain ownership under clause 5.2(g), and Our Equipment, for the purposes of the Personal Property Securities Act 2009 (Cth) ('PPSA'). The terms 'accession,' 'perfected security interest,' 'security agreement,' 'security interest', and 'verification statement' have the meanings given them in the PPSA.

(b) If we ask you, you must promptly sign any document and do anything else we reasonably require to ensure that our security interest is a perfected security interest. You must not enter into any security agreement that permits any other person to have or to register any security interest in respect of the equipment or proceeds of sale of the equipment until we have perfected our security interest.

(c) If you are a business or a non-profit organisation, you acknowledge and agree that the equipment is not used predominantly for personal, domestic or household purposes and accordingly you and we agree to contract out of sections 95, 118, 121(4), 130, 132(4), 135, 142 and 143 to the extent permitted by section 115(1) of the PPSA. You waive any rights you may otherwise have to receive notices under sections 95, 118, 121, 130, 132 or 135 of the PPSA, to apply to court for an order concerning the removal of an accession under section 97 of the PPSA, to object to a proposal by us to retain any collateral under sections 130 and 135 of the PPSA, and to receive a verification statement in relation to registration events in respect of the equipment supplied to you from time to time.

(d) You and we agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. You must do everything on your part necessary to ensure that section 275(6)(a) of the PPSA continues to apply.

 

6. NETWORK MAINTENANCE, SUPPORT SERVICES AND FAULT REPAIR


Our responsibility and obligations:

(a) We and our suppliers may perform maintenance, upgrade or repair services at any time on Our Equipment, and the infrastructure we and they use to supply the Service and will try to minimise any interruption to the Service or adverse impact on quality.

(b) We provide remote support for use of the Service in Australia within the hours stated in the Critical Information Summary, or if not stated there, those stated on our website for the Service. We may agree to provide additional support services, for additional charges.

(c) We are only responsible for repairing a fault in the Service which you notify to us if the fault is created or caused within Our Equipment or the infrastructure we and our suppliers use to supply the Service, up to our side of the Network Boundary.

(d) If we are responsible for repairing a fault in the Service we will take reasonable steps to restore the Service as soon as we reasonably can. We aim to meet any fault repair times that we give you but (except if we have agreed otherwise with you in writing or if the law requires otherwise) those times are estimates only and we do not guarantee to meet them. If we become aware that a fault in the Service is on your side of the Network Boundary, our sole responsibility is to notify you. We may, but are not obliged to, provide additional help.

 

Your responsibility and obligations:

(e) You are responsible for, and must repair or arrange the repair of a fault in the Service created in or caused by Customer Equipment or on your side of the Network Boundary. You are responsible for providing all support services in respect of the Customer Equipment and infrastructure on your side of the Network Boundary.

(f) You must promptly report any fault in the Service which you reasonably believe is our responsibility, and you must make any request for other support services, by contacting our customer service team by telephone or online inquiry as stated in the Critical Information Summary, or if not stated there, those stated on our website for the Service. Before reporting a fault to us, you must try to ensure that the fault is not in the Customer Equipment or on your side of the Network Boundary.

(g) You must notify us promptly of any changes to the Customer Equipment which may be relevant to the Service.
(h) You must arrange access to the premises if we request and provide other help if needed to enable us and our suppliers to investigate and repair a fault and provide support services.

 

7. USING THE SERVICE

 

Your responsibility and obligations:

(a) You must ensure that the Service is used only for its intended use as specified in the Critical Information Summary or Service Description.

(b) You must comply with our acceptable use policy available on our website and fair use policy, if any, referred to or specified in the Critical Information Summary or Service Description.

(c) You are responsible for keeping secure the means of access to the Service to ensure that unauthorised access does not occur. You must keep secure any equipment you connect to the Service and any data stored on that equipment (including keeping user names and passwords secure) and you are responsible for the risk of unauthorised access, misuse and loss or corruption of that data. You must take reasonable steps to keep the Service and your account secure from unauthorised access. You must notify us immediately you become aware of any actual or attempted unauthorised use of the Service or breach of security, giving us your account number and full details of the security breach. Information about security tools is available on our website.

(d) You are solely responsible for all use of the Service and for all risks associated with your activities when you use the Service (including risks associated with transmitting, communicating, accessing, downloading, or publishing material, content of communications, making purchases or providing personal or confidential information, ensuring that material is sent or received correctly, and data loss, corruption or interception, whether by using the internet or other means). We are not liable for any loss, cost, damage or liability arising from your activities when using the Service.

(e) You must ensure that anyone you authorise to use the Service complies with your obligations under this clause 7 and you are responsible if they fail to do so.

(f) You must comply with our reasonable directions and all directions of any regulatory body in connection with use of the Service. Where you access third party content or where a third party network is used to transmit material in connection with the Service, you must comply with any applicable acceptable use terms or other rules of those third parties.

(g) You must provide us all the information and assistance we reasonably require to enable supply of the Service and compliance with any request or direction of a government agency, emergency services organisation or other authority, and to investigate if we reasonably suspect unauthorised use of the Service or if you have misused the Service or breached the Agreement.

(h) You must use the Service only for lawful purposes and activities and must comply with all laws, regulations and industry codes of practice which apply to your use.

(i) You must not use the Service in any manner which could cause you or us to violate a law, regulation or industry code, commit an offence, endanger any person, damage any property, infringe a person’s rights (including copyright), or which could give rise to us incurring a liability. You must not use the Service to transmit, communicate, access or publish any material which is unlawful, offensive, indecent, defamatory, abusive, menacing or harassing, material which is unsolicited and material known to contain a virus or similar.

(j) You must not knowingly do anything, or use the Service in any manner, which might compromise the security or safety of, or which might damage, interrupt or interfere with the operation of, the Service, the infrastructure used to supply the Service, Our Equipment or any other computer, system, network or services, including hack or otherwise obtain unauthorised access to any of them.

 

Our Rights to intercept, monitor and take other action

(k) You acknowledge and agree that, without liability to you, we may:

(i) intercept communications and provide call related information to government authorities (including law enforcement agencies), to the extent required by law to do so;

(ii) (but we are not obliged to) monitor the usage of the Service and communications sent over it for compliance with the Agreement and to protect the infrastructure used to supply the Service and its other users;

(iii) implement traffic management measures as set out in our acceptable use policy to; and

(iv) take any steps necessary to monitor and ensure our compliance with the law, relevant industry code of practice, court order, or notification or direction from a regulatory body.

(l) We may (but are not obliged) to scan Customer Equipment or otherwise test the security of your Service, in order to help you to keep your Service secure from unauthorised access.

 

8. CHARGES, BILLING AND PAYMENT


8.1 Charges

(a) You must pay all Charges in connection with the equipment, the Service and the Agreement set out in your order, the Critical Information Summary, the Special Offer (if any), these General Terms and our Standard Fee Table.

(b) Charges for the Service accrue from the Start Date and may include set up Charges (which may be payable before we commence provisioning), usage based Charges and recurring Charges and any other charges set out in the Agreement.

(c) You are responsible for all Charges for use of the Service whether or not you authorised the use, including those arising from toll fraud or other unauthorised or fraudulent usage, or from your failure to keep your Service secure. You are also responsible for any Charges arising from your failure to access or disconnect a call properly or from your failure to disconnect a Service when vacating premises.

(d) Recurring Charges are payable from the Start Date until cancellation of the Service. The recurring Charges continue to be incurred during any period of interruption to the Service including if caused by your failure to connect equipment to the Service, failure of Customer Equipment or other fault of you or anyone else who uses the Service, relocation of the Service, failure of services provided to you by anyone else (including broadband internet service where this is not provided by us), interruption for an insignificant period, or suspension of the Service for any reason. Recurring Charges also continue to be incurred during any period when the Service is not available because you failed to pay the Charges or in the case of a prepaid service, you failed to maintain the minimum balance required for the Service. If the interruption was caused by our fault or negligence, you may claim a credit for the recurring charge for the period of interruption as set out in clause 10.1(c).

(e) If you ask us to provide services onsite, or outside the support hours specified in clause 6(b), or if you ask us to provide services in connection with Customer Equipment which are outside any warranty or Consumer Guarantee obligations we may have, you must pay our reasonable charges for those services. We will advise you of our charges before you incur them.

(f) You must pay our reasonable charges to repair, replace, modify or service the Service or Our Equipment if required as a result of:

(i) failure of Customer Equipment arising from any act or omission of you, your employees, agents or contractors or anyone authorised by any of them;

(ii) your failure to return Our Equipment in good condition (excepting fair wear and tear) when required under the Agreement or loss, theft or damage of Our Equipment (except to the extent caused or contributed to by us); or

(iii) any negligence, fraud or breach of the Agreement by you, your employees, agents or contractors or anyone authorised by any of them.

We will try to advise you of these charges before you incur them but given their nature, we may not always be able to do so.

(g) You must pay our call out fees if we make an onsite visit after giving you reasonable prior notice, and you fail to give us access or to have a suitably qualified representative onsite to assist us.

(h) We may from time to time make a Special Offer with Charges and terms and conditions that differ from those in the Critical Information Summary. If you accept a Special Offer from us, the Charges and terms and conditions of the Special Offer take priority over the Critical Information Summary, to the extent they differ, only for the limited period specified in the Special Offer.

(i) All Charges are in Australian dollars. If a Charge is stated to exclude GST, and we are liable to pay GST on supply of the Service to you, we may increase the Charge by the amount of GST and you must pay us the whole of that amount when we ask. If the charge is stated to be inclusive of GST, but the GST rate used is incorrect or changes, the amount of the charge will be adjusted to reflect the actual GST rate.

 

8.2 Billing and Payment

When we bill you:

(a) We may bill and require payment of certain Charges as set out in the Agreement before we commence to deliver equipment or connect the Service. Typically these are Charges for equipment and set up and provisioning of the Service. We may bill and require payment of Charges for any additional services before we provide those services. Unless otherwise stated in the Critical Information Summary, recurring Charges are billed in advance and usage based Charges are billed in arrears, except in the case of a prepaid service.

(b) We will bill you monthly, commencing on the date which is one calendar month after the date we accept your order, unless otherwise specified in the Critical Information Summary. We will try to include all Charges relating to the current billing period on your bill but usage based Charges and some other Charges may not appear on your bill until up to 160 days from the date you incurred the charge. We may bill and you must pay any minimum monthly Charge stated in the Critical Information Summary even if you have not incurred the services related to those Charges.

(c) We may ask you to make interim payments at other times if there is unusually high usage on your account, to maintain your account within any credit limit we have approved or to maintain any minimum account balance stated in the Critical Information Summary, if we have reason to be concerned about your ability to pay at any time or if permitted under another provision of the Agreement. We may bill you after a Service has been cancelled for Charges you incurred before or when the Service was cancelled, but we will bill them within a reasonable time after cancellation.

How we bill you

(d) We will send bills to your address (by email, facsimile or post and in HTML, pdf or paper format, at our option). If we send or offer to send your bill by email, and you ask us to provide a paper copy, we may charge you a paper invoice fee.
(e) If we have taken reasonable steps to ensure you receive it, a bill remains payable even if you do not receive it because you have changed address and not notified us or because your email mailbox is full or for other reason attributable to you.

(f) If you ask us to re-send you a bill more than 3 months after the issue date, and that billing information is available without charge through our website, we may charge you an invoice copy fee for each bill you request.

Billing errors and adjustments

(g) If we find an error on a bill, we will apply an adjustment to your service account and this will appear on your next bill. We will credit your account with any overpayment and you must pay any underpayment by the due date. If you no longer have an account with us, we will take reasonable steps to refund any overpayment to you.

(h) If we owe you an amount, we can provide it as a credit on your service account and deduct it from amounts you owe us.

When to pay

(i) You must pay the Charges by the due date specified on the bill and must make any interim payment described in clause 8.2(c) by the due date notified by us.

(j) For all prepaid accounts, you must pay all Charges in advance each month and keep your account topped up as required to maintain the minimum balance set out in the Critical Information Summary.

Payment Option

(k) You must pay the Charges using the payment method specified on the bill or on our website except that if a specific payment method is required in the Critical Information Summary, or otherwise agreed with you, you must use that payment method.

(l) If you have agreed to pay by automatic payment or direct debit from your credit card, charge card or bank account:

(i) you authorise us to:

(A) (in the case of payments by card) disclose your card details to and obtain information from the card issuer to verify those details and your ability to pay the Charges using the card; and

(B) debit your credit card, charge card or bank account all Charges you owe us from time to time in accordance with the Agreement, including any Charges which may become owing as a result of cancellation of the Service;

(ii) you must ensure that your account has sufficient funds to allow payment when required; and

(iii) you must notify us promptly if there is a change to your card or bank details.

(m) If you pay by credit card, you must pay a credit card fee if applicable as set out in the Standard Fee Table. We may choose to stop accepting credit or charge cards from one or more providers, by giving you reasonable notice.

Payment Default

(n) If you fail to pay the Charges in accordance with the Agreement, we may:

(i) withdraw any discounts in connection with the Service and/or restrict, suspend or cancel the Service as permitted under clause 9.2;

(ii) charge you a late payment fee as set out in the Standard Fee Table;

(iii) exercise a general lien over any Customer Equipment in our possession until any outstanding charges have been paid in full; and

(iv) charge you our costs of recovering payment for outstanding charges, including reasonable debt recovery agent costs and legal costs.

(o) If your payment is dishonoured by the bank or credit or charge card issuer, we may charge you a dishonour fee.
Financial Hardship

(p) Our Financial Hardship Policy sets out how we can assist customers who are experiencing financial hardship. You can obtain a copy from our website or by contacting our customer service team.

Changes to credit accounts

(q) If at any time we have reason to become concerned about your ability to pay the Charges, we may in respect of your credit account (if any), decline to extend further credit or vary your credit limit and any related conditions.

(r) If you fail to pay any amount when due or otherwise breach the Agreement, become bankrupt, insolvent, enter into an arrangement with your creditors, receivership, liquidation or similar, or if we become concerned about your ability to pay the Charges for any other reason, we may cancel your credit account (if any) without prior notice and all balances owing will become immediately due and payable.

 

8.3 Billing Disputes

(a) If you have reason to believe there is an omission or error in relation to a charge on a bill, you may dispute the bill, by giving written notice to our customer service team before the due date for payment of the bill. Your notice must set out the date and number of the disputed bill, itemised details of the charges in dispute, your detailed reasons and any documentation to support your claim and enable us to investigate it. You must pay any undisputed amount by the due date.

(b) We are committed to ensuring that our bills are accurate and unless you provide reasonable substantiation of your claim, we may rely on our records as proof of usage and Charges incurred.

(c) Our Complaint Handling Process sets out our process for handling billing disputes and other complaints. You can obtain a copy from our website or by contacting our customer service team.

 

8.4 Financial Security

(a) As a condition of our acceptance of your order, or if we have reason to be concerned about your ability to pay at any time and based on the outcome of a credit assessment conducted in relation to you, we may ask you to provide a security in the form of a cash deposit to be held by us, or a bank guarantee in a form acceptable to us, or to increase any security previously provided.

(b) If you fail to provide adequate security within 5 working days of our request, we may, without liability, suspend the Service to you in accordance with the Agreement until we receive adequate security.

(c) We may access the security at any time to pay outstanding Charges you owe us but only after giving you at least 5 working days’ notice that we intend to access the security if you fail to pay the Charges within that period.

(d) We will refund you the security deposit less any amounts owing, without interest, within 10 working days of the sooner of you satisfactorily completing the terms of the security arrangements, or cancellation of the Service.

 

9. SUSPENSION AND CANCELLATION


9.1 Your Rights to Cancel the Service

(a) To cancel the Service you must give us written notice as set out in clause 15(e) (unless the law specifies otherwise) with the notice periods set out in this clause 9.1. Failure to pay Charges does not automatically cancel the Service and recurring Charges will continue to be incurred until the Service is cancelled by you or us.

(b) You may cancel the Service if the law gives you a right to cancel which cannot be excluded by contract. You and we must comply with the obligations relating to return of equipment, refunds and payments set out in clause 9.3 unless the law requires otherwise.

(c) You may cancel the Service at any time before we give you notice of Service connection and in this case you may incur the Charges set out in clause 9.3(b).

(d) You may cancel the Service at any time after we give you notice of Service connection by giving us 30 days’ notice before the end of a billing period. In this case you may incur the Charges set out in clause 9.3(c), which for a Service with a Fixed Contract Period include the Break Fee.

(e) You may cancel the Service if we commit a material breach of the Agreement and fail to correct the breach within 30 days of receiving notice from you to do so. In this case you may incur the Charges set out in clauses 9.3(b) or 9.3(c) (depending on the timing), but you will not be charged a Break Fee.

(f) You may cancel the Service if permitted under any other clause of the Agreement.

 

9.2 Our Rights to Restrict, Suspend or Cancel the Service

(a) To cancel the Service we must give you notice as set out in clause 15(e) if required but there are also circumstances where we can cancel immediately without giving you notice beforehand, as set out in this clause 9.2.

(b) (General) We may cancel the Service:

(i) if we determine that for technical or other reasons we will be unable to provision or connect the Service to you within a reasonable time after accepting your order, immediately by giving you notice;

(ii) where the Service has no Fixed Contract Period, or the Fixed Contract Period has expired, at any time by giving you 30 days’ notice;

(iii) where the Service has a Fixed Contract Period, by giving you notice 30 days before expiry of the Fixed Contract Period; or

(iv) if you consent to cancellation of the Service.

(c) (Cancellation or suspension for credit management reasons) We may cancel or suspend the Service immediately and without notice beforehand if you fail to pay any amount by the due date for payment and:

(i) we assess that you or your account status present an unacceptably high credit risk to us;

(ii) we reasonably suspect fraud or attempted fraud; or

(iii) you fail to pay the amount owing within 5 working days of us giving you notice that the amount is overdue and that the Service may be disconnected, suspended or restricted.

(d) (Restriction for credit management reasons) We may restrict the Service immediately and without notice beforehand if:

(i) we have agreed to restrict the Service at a certain point and you have reached that restriction point. (A restriction point is the point (if any) you have nominated at which access to a service or an aspect of a service is limited.); or

(ii) you have a prepaid service and your account balance falls below the required minimum balance.

(e) (Cancellation or suspension for other customer cause) We may cancel or suspend the Service immediately by giving you notice if you:

(i) commit a material breach of the Agreement which is capable of being corrected and you fail to correct the breach within 30 days of receiving notice from us to do so;

(ii) commit a material breach of the Agreement which is not capable of being corrected;

(iii) withdraw your consent (if any) to waive your rights and protections under the Customer Service Guarantee Standard;

(iv) fail to provide us with access, authority or information reasonably notified as required by us to enable us to provide the Service or as set out in clause 11;

(v) or anyone using the Service, in our reasonable opinion, have been, or is, involved in fraud or other illegal conduct in connection with the Service;

(vi) or anyone using the Service fail to use the Service as permitted under the Agreement;

(vii) in our reasonable opinion, are, or are operating as, or using the Service as, a Carrier or Carriage Service Provider;

(viii) in our reasonable opinion, are using the Service for a purpose other than that for which it is intended as set out in the Critical Information Summary or Service Description, and you fail to change to a more suitable service within 30 days of receiving notice from us asking you to do so;

(ix) fail to provide or increase financial security, as required under the Agreement, within 5 working days of receiving notice from us to do so;

(x) become bankrupt, insolvent, or have a receiver, manager, administrator, provisional liquidator or liquidator appointed, enter into an arrangement with your creditors or if a partnership, the partnership is dissolved or application made to dissolve it;

(xi) vacate your premises;

(xii) if an individual, die; or

(xiii)(in the case of a Service with no Fixed Contract Period) do not use the Service for a period of at least 6 months, have a zero or negative account balance, and do not notify us that you wish to retain the Service, within 30 days of receiving notice from us of our intention to cancel.

(f) (Cancellation or suspension for other reasons) We will try to give you notice beforehand, but we may cancel or suspend the Service immediately and without giving notice beforehand, if:

(i) required by law, or to comply with a direction or order of a government authority or court;

(ii) a competition notice is or is likely to be issued by a government authority in connection with the Service;

(iii) there is an emergency;

(iv) we have reasonable grounds to believe there is a threat or risk to the security of the Service or integrity of the network, or the Service may cause death, personal injury or damage to property;

(v) we are unable to supply the Service because of an Event;

(vi) prudent or necessary to allow maintenance or repair of, or to avoid or minimise a risk to the networks and infrastructure used to supply the Service, or for other operational reasons; or

(vii) where we supply the Service using another supplier’s network or services, our supplier ceases to supply its services to us.

(g) We may cancel the Service if permitted under any other clause of the Agreement.

(h) If we suspend or restrict a Service, we may later cancel the Service for the same reason.

9.3 Effect of restriction, suspension, cancellation and termination

(a) During any period of restriction or suspension by us under clause 9.2 or requested by you, you remain responsible for all recurring Charges which will continue to be incurred and any usage based Charges incurred.

(b) If the Service is cancelled before we give you notice of Service connection, you must pay:

(i) (except if the Service is cancelled under clause 9.1(e) or 9.2(b)(i)) our reasonable charges and all third party costs we have incurred in connection with preparing to supply the Service; and

(ii) equipment charges in accordance with clause 9.3(d).

(c) If the Service is cancelled for any reason after we give you notice of Service connection, you must pay:

(i) all Charges incurred for the Service including any usage based Charges whether incurred before or after the date of cancellation;

(ii) if the Service is cancelled within a Fixed Contract Period (except under clause 9.1(e), 9.2(f), 14(c) or (d)), the applicable Break Fee; and

(iii) equipment charges in accordance with clause 9.3(d).

(d) If any equipment you purchased from us has not been paid in full or was supplied free (including because it was purchased by instalment payments) or at a discount to our standard retail price as part of a Service with a Fixed Contract Period or otherwise, on cancellation of the Service for any reason, you must:

(i) (except if the Service is cancelled under clause 9.1(e), 9.2(b)(i), 14(c) or (d)) pay us the unpaid balance of our standard retail price for the equipment (including the amount of any discount given); and

(ii) if the Service is cancelled under clause 9.1(e), 9.2(b)(i), 14(c) or (d), promptly:

(A) return the equipment to us in good condition, fair wear and tear excepted; or

(B) give us notice that you wish to retain the equipment and in this case you must pay us the unpaid balance of our standard retail price for the equipment (including the amount of any discount given).

(e) Cancellation of the Service takes effect on expiry of any notice period required by the Agreement, unless we agree otherwise. On cancellation of the Service for any reason, we may disconnect the Service and you must:

(i) immediately cease to use the Service;

(ii) immediately cease to use and comply with your obligations in respect of Our Equipment as set out in clause 5.3(h) and in respect of any software we licensed as set out in clause 12(e)(vi); and

(iii) pay all invoices for the Charges by the due dates.

(f) Except if required otherwise by law, or if the Service is cancelled under clause 9.1(e), 9.2(b), 14(c) or (d), we are not liable to refund any monies which you have paid in advance or prepaid. If the Service is cancelled under clause 9.1(e), 9.2(b), 14(c) or (d), we will refund you the balance of any monies which you have paid in advance or prepaid, after you have met your obligations under clauses 9.3(b),(c),(d) and (e).

(g) Except if required otherwise by law or as otherwise stated in this clause 9.3, we are not liable to you for any loss, cost, damage or liability in connection with suspension or cancellation of the Service by us in accordance with the Agreement.

(h) Cancellation of one Service does not affect your contract obligations in connection with any other services we supply to you.

(i) If we agree to reconnect a Service after suspension or cancellation in accordance with the Agreement, you may incur a reconnection fee.

(j) If a Service is cancelled and the Agreement terminates, clause 10 (Liability) and any provision of the Agreement which is clearly intended to operate after termination will continue as will the rights and liabilities that have accrued to you or us.

 

10. LIABILITY

 

10.1 Our Liability to you

What terms apply

(a) The only terms and conditions which apply to our supply of the Service and any other goods and services to you are the terms and conditions expressly set out in the Agreement and any rights you have at law which cannot be excluded. For example, we have obligations under the Consumer Guarantees, which may apply to the supply of goods and services to you. If you have rights and remedies under the law which cannot be excluded, nothing in the Agreement excludes those rights or remedies. We exclude any other liability we may otherwise have to you in connection with this Agreement and the Service, and we exclude all implied terms, conditions, warranties, rights, remedies.

Limiting liability for breach of Consumer Guarantee for some services

(b) If we have obligations to you under the Consumer Guarantees which cannot be excluded, but the law allows a supplier to limit liability for a breach of those obligations, we limit our liability to replace or repair goods, resupply the services or pay the cost of replacement, repair or resupply, only if it is fair and reasonable to do so.

Interruptions or delay to the Service.

(c) Subject to clauses 10.1(d), 10.1(e) and 10.1(i), if your use of the Service is interrupted, or connection of the Service is delayed, as a result of our fault or negligence, within a reasonable period of the interruption you can ask us to credit the amount of any recurring Charges billed to you for the affected Service for the period of the interruption or delay, unless we have an obligation under a service level to provide you a service credit in which case you can ask us to provide the service credit, and we limit our liability to you to that amount.

(d) Except for any liability we have to you under the law which cannot be excluded, an interruption or delay to the Service is not caused by our fault or negligence, and we are not liable, if it is caused by an Excluded Incident.

(e) If the law requires, we will also pay you compensation for any reasonably foreseeable loss you suffer as a result of interruption or delay to the Service caused by our fault or negligence. A Residential Service is intended to be used for personal, domestic or household purposes. To the full extent the law permits, we do not accept liability for any loss in connection with the use of a Residential Service for business purposes because it is not reasonably foreseeable loss.
Property Damage and Personal Injury

(f) The limitations set out in clauses 10.1(j) and 10.1(k) do not apply to any legal liability we may have for direct loss or damage to tangible property or for personal injury or death.

Failures and delay outside our control

(g) Except for any liability we have to you under the law which cannot be excluded, we are not liable for any delay, interruption or failure to perform an obligation under the Agreement to the extent caused by an Event.

Consequential loss

(h) Except for any liability we have to you under the law which cannot be excluded, we exclude all liability to you for loss of profits, loss of revenue, loss of opportunity or goodwill, loss of actual or anticipated savings, loss or corruption of data, loss of any equipment value, any exemplary, punitive or special damage and any kind of indirect or consequential loss.
Your contribution to the loss

(i) We are not liable for any loss you suffer to the extent that you or any of your officers, employees, agents or contractors caused or contributed to the loss, or to the extent caused by you failing to take reasonable steps to reduce or avoid the loss.

General limit and exclusion

(j) Except for any liability we have to you under the law which cannot be excluded, if we do not expressly accept liability to you in connection with the Agreement or the Service under this clause 10.1, then we exclude that liability.

(k) Except if the law requires otherwise, we limit our total cumulative liability to you in connection with the Agreement and the Service to the amount you paid us for the Service during the minimum contracted term.

(l) The limitations and exclusions of our liability set out in this clause 10.1 are to be construed for our benefit and that of our group companies.

 

10.2 Your liability to us

(a) You are liable to us for any breach of the Agreement or negligence by you according to general legal principles.
Use, Customer Equipment, information and authorisation

(b) You must pay us the amount of any loss, cost (including legal costs), damage, expense or liability we suffer or incur in connection with:

(i) use of the Service, or equipment used in connection with the Service, arising from negligence, fraud or breach of the Agreement by you, your employees, agents or contractors or anyone authorised by any of them; and

(ii) any third party claim arising from inaccurate or incomplete information or improper authorisation provided to us or our contractors by you, your employees, agents or contractors in connection with the Service.

Failures and delay outside your control

(c) You are not liable for any delay or failure to perform any obligation under the Agreement due to circumstances outside your reasonable control.

Our contribution to the loss

(d) You are not liable for any loss we suffer to the extent that we or any of our officers, employees, agents or contractors caused or contributed to the loss, or to the extent caused by Our Equipment, the networks and infrastructure we or our suppliers use to supply the Service, or by us failing to take reasonable steps to reduce or avoid the loss.

Consequential loss

(e) Except as set out in clause 10.2(b), you are not liable to us for loss of profits, loss of revenue, loss of opportunity or goodwill, loss of actual or anticipated savings, loss or corruption of data, loss of any equipment value, any exemplary, punitive or special damage and any other indirect or consequential loss.

Other

(f) If the customer for a Service is more than one person, each of you is jointly and individually responsible for the Charges and other obligations relating to the Service.

 

11. PRIVACY


(a) We collect, use and disclose your personal information as set out in our privacy policy published on our website, and as disclosed to you when we collect information from you.

(b) If you do not provide personal information which we reasonably require, we may choose not to supply, or to cancel or suspend supply of the Service to you, or to limit or not to provide credit terms to you.

(c) You may ask us only to send you communications about your account, the Agreement or as required by law, and not to send communications which market our services or Special Offers. You can access and update the personal information we hold about you. Please see our privacy policy on our website for information about this.


12. SOFTWARE LICENCE


(a) This clause 12 applies if we provide you any software to use with the Service except to the extent stated otherwise in the Critical Information Summary or Service Description or agreed in writing by us.

(b) We grant you a revocable, non-exclusive, non-transferable licence to use the software:

(i) if third party software, subject to the terms and conditions of the applicable third party software licence; and

(ii) otherwise, subject to the terms and conditions of any licence agreement packaged with the software; and

to the extent there is no conflict, the terms and conditions of this clause 12.

(c) You acknowledge and agree that we do not warrant the performance or features of the software and we are not responsible for providing any upgrades or updates for the software.

(d) You may only use the software until cancellation of the software licence or the Service in connection with which the software is licensed.

(e) You must:

(i) only use the software with the Service and in accordance with our directions;

(ii) comply with any restriction on the number of end users or other capacity restriction applicable to the software;

(iii) not copy, modify, decompile or reverse engineer the software or derive or develop other software based on the software we supply;

(iv) not remove or modify any copyright notice on the software;

(v) not sub-license, assign or otherwise transfer the right to use the software to any other person; and

(vi) cease to use the software on the sooner of our request or cancellation of the Service, and if we request, promptly return to us or delete or destroy all copies of the software in your possession or control.

 

13. TELEPHONE NUMBERS AND IP ADDRESSES


(a) You acknowledge and agree that any telephone number used in connection with the Service is allocated and regulated by law and your right to use it may cease on cancellation of the Service (unless you transfer the telephone number to another service provider) or if the number is required by the numbering regulations to be changed. If on cancellation of the Service, you do not transfer the telephone number to another service provider, it may be issued to another customer as set out in the numbering regulations. We will not be liable for any loss, cost, expense, damage or liability you suffer in connection with loss of the right to use a telephone number or change of a telephone number, in accordance with the numbering regulations.

(b) If we allocate an IP address to you for the Service, you must use it only connection with the Service. You do not own the IP address and your right to use it ceases on cancellation or suspension of the Service for any reason.

 

Continued in Part 2...


 

 

Continued from Part 1...

 

14. CHANGES TO THE AGREEMENT


(a) We may make a change to the Agreement at any time and without giving you notice if:

(i) you agree to the change;

(ii) the change benefits or has a neutral impact on you; or

(iii) the change is necessary for security or technical reasons or required by law and in this case we will try, but do not have to give you notice of the change beforehand.

(b) We may vary any Charge and introduce any new Charge at any time and without giving you notice (unless stated otherwise):

(i) for international rates or any other Charge described as variable or subject to change or similar, and for incidental charges such as credit card fees;

(ii) to reflect an increase in our costs of supplying the Service resulting from a regulatory decision and in this case we will give you notice within a reasonable period but may not be able to give you notice beforehand; and

(iii) to reflect a change in tax laws and in this case we will give you notice within a reasonable period but may not be able to give you notice beforehand.

(c) Apart from the kinds of changes set out in clauses 14(a) and 14(b), we may make a change to the Agreement which we reasonably expect to adversely affect you by giving you reasonable notice of the change.

(d)   If you have an Agreement with a Fixed Contract Period and we give you notice of a change under clause 14(c) and you can demonstrate that the change is likely to have more than a minor detrimental impact on you during the Fixed Contract Period, you may terminate the Agreement by giving us notice 15 days before the change of agreement takes effect. You will not incur any Break Fee but you must pay other Charges as set out in clause 9.3(c).

(e)   You can only change the Agreement with our written agreement. An upgrade, downgrade, relocation or other change to the Service (if we agree) may result in revised Charges, incur additional Charges (including Break Fee), impact provisioning times and quality of service and cause interruption to the Service.

 

15. GENERAL


(a)   (Complaints) We aim to resolve complaints efficiently, fairly and courteously. For information on how to lodge complaints and how they are handled, refer to our Complaint Handling Process available from our website or by contacting our customer service team.

(b)   (Priority Assistance Service) We do not provide a priority assistance service for life threatening medical conditions, and we have no legal obligation to do so.

(c)   (Authorised representative) You can appoint an authorised representative to deal with us on your behalf as your authorised agent, by nominating that person in your order, or notifying us as we reasonably request. If you appoint an authorised representative, that person has the power to act on your behalf as if they were you, or if appointed with more limited rights, to the level of access you have allowed them. If you are a business or non-profit organisation and you do not nominate anyone, we can rely on the authority of any of your employees who tell us they have authority and you will be bound by any order, consent or direction made or given by them.  

(d)   (Advocate) You can nominate an advocate to deal with us on your behalf, but unlike an authorised representative, your advocate has no power to act on your behalf and has no access to your account information, unless your advocate is also your authorised representative, or you are present and agree to that access or action.

(e)   (Notices) If the Agreement requires you or us to give notice, it must be given in writing unless otherwise specified in the Agreement. We may give you notice by mail, facsimile, by message on or sent with the bill or by email to your last known address (but we will only give notice of changes to the Agreement by email if you have agreed beforehand that we can give them by email). You can give us notice by mail, facsimile or email to our customer service team. A notice will be deemed to be received as follows: if given by normal mail on the 3rd day after posting, if given by express post on the next day after posting, if given by facsimile or email immediately when sent if during normal working hours, or if outside those hours, at 9am on the next working day.  

(f)    (Copyright & Other Intellectual Property Rights) We do not assign or grant a licence of any copyright or other intellectual property rights to you under the Agreement. You must not use any of our trade names, trade marks, service marks, domain names or logos without our prior written consent.

(g)   (Relationship) We are an independent contractor to you. You are not authorised to act on our behalf or to bind us to any obligation.

(h)   (Commissions) You acknowledge and agree that we may at our absolute discretion pay commission to any person in connection with the Agreement. 

(i)     (Subcontractors) We may engage other suppliers and subcontractors to perform any of our obligations under the Agreement, but we will remain responsible for their performance.  We may also arrange for any of our obligations under the Agreement to be performed by any of our group companies.

(j)     (Void terms) If any term of the Agreement is considered void or voidable or unenforceable because of law, the rest of the Agreement will not be affected.

(k)   (Waiver) If you or we do not exercise any right under the Agreement, it will not be considered to waive that right or any other rights under the Agreement. If you or we waive a right under the Agreement, that waiver is effective only in the specific instance and for the specific purpose for which it is given.

(l)     (Assignment) You can only assign or transfer your rights or obligations under the Agreement with our prior written consent, which we must not unreasonably withhold. We can assign our rights under the Agreement to any person.

(m)  (Governing law) This Agreement is governed by the laws of the Australian state or territory in which you reside and the courts of that state or territory will have non-exclusive jurisdiction.   

 

16. DICTIONARY AND INTERPRETATION


(a) In this document, words have the meanings given them in this clause 16.

Agreement means the terms and conditions on which we supply the Service to you and is made up of these General Terms, the Service Description, the Critical Information Summary and your order.

Break Fee means the fee payable by you in respect of a Service with a Fixed Contract Period if you change a plan or if the Service is cancelled and unless stated otherwise in the Critical Information Summary, is calculated by multiplying the minimum monthly charge by the number of months remaining in the Fixed Contract Period as at the date of Service cancellation (months remaining x minimum monthly charge).

Carrier and Carriage Service Provider have the meanings given them in the Telecommunications Act 1997 (Cth).

Charges means those monies payable by you to us under the Agreement as varied in accordance with the Agreement. Charges include those set out in your order, the Critical Information Summary, the Standard Fee Table, the Special Offer (if any), and any amounts payable for rental of Our Equipment and for provision of any additional services by us.

Complaint Handling Process means our complaint handling process available on our website.

Consumer Guarantee has the meaning given in Division 1 of Part 3-2 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

Critical Information Summary means our document headed ‘Critical Information Summary’ which sets out charges and information related to the plan ordered for the Service.

Customer Equipment means equipment, cabling, software, infrastructure and services of your own, or provided to you by a third party, or located on your side of the Network Boundary, including all equipment you purchase from us but excluding Our Equipment and Our Network.

Customer Service Guarantee Standard or CSG means the Telecommunications (Customer Service Guarantee) Standard 2011.

Event means any circumstance outside the reasonable control of the affected party, including act of god, fire, flood, storm, earthquake, war, riot, strike or unforeseen labour dispute, shortage of labour, equipment or materials, change of law or regulation, act or omission of any government authority including failure or delay in granting any approval or licence, electromagnetic interference, failure or variations in power supply, air conditioning or humidity control, act or omission of any of our suppliers or other third party, cable cut, failure of network, equipment, software, facilities or infrastructure owned or operated by any of our suppliers or another third party.

Excluded Incident means an interruption or delay to the Service caused directly or indirectly by:

(i)     an Event;

(ii)    any fraud, negligence or breach of the Agreement by you or any of your officers, employees, agents or contractors;

(iii)   Customer Equipment;

(iv)  Our Equipment loaned to you;

(v)   provisioning, upgrade or reconfiguring of systems or equipment requested by you;

(vi)  cancellation, suspension or restriction of the Service in accordance with the Agreement; or

(vii) scheduled maintenance, upgrade or repair of Our Network or Our Equipment or network, equipment, software, facilities or infrastructure owned or operated by any of our suppliers.

Financial Hardship Policy means our financial hardship policy available on our website.

Fixed Contract Period, in respect of a Service, means the minimum contracted term (if any) specified in your order for the Service, commencing on the Start Date, but does not mean a month to month term.

General Terms means the terms and conditions set out in this document.

Network Boundary means the point where responsibility for the Service transfers from us to you as set out below unless stated otherwise in the Service Description:

(i)     for a broadband or other data service to a single dwelling residence, the Network Boundary is the network termination device (NTD) on the exterior wall of the premises or if there is no NTD the first telephone socket in the premises;

(ii)    for a broadband or other data service to a business premises or a multi-storey building, the Network Boundary is the main distribution frame (MDF); and

(iii)   for a voice service, the Network Boundary is the external carrier interconnect port on our core router at the edge of Our Network.

Our Equipment means equipment which we loan or rent to you together with any cabling or other ancillary items provided with it. For clarity, it does not include equipment you purchase from us by instalment payments or otherwise.

Our Network means the telecommunications network owned or controlled by us or our group company. For clarity, it excludes any network of a supplier to us.

Residential Service means a service described as 'residential' or as intended for personal, domestic or household use or similar in a Critical Information Summary or Service Description.

Service means the service requested in your order as described in the relevant Service Description and any related equipment, software, firmware and other goods and services we supply you in connection with the Service. 

Service Description means our document headed ‘Service Description’ which describes the Service and sets out information related to the Service.

Special Offer means a special offer or promotion we may make in relation to the Service from time to time.

Standard Fee Table means our standard fee table available on our website.

Start Date means the earlier of the date when you first use the Service and the date on which the Service is first available for use as notified by us unless stated otherwise in the Critical Information Summary or Service Description.

we, our, us means My Net Fone Australia Pty Ltd  ABN 73 109 671 285.

you, your means the customer whose name appears on the order.

(b)   In these General Terms, unless the context requires otherwise:

(i)     headings are used for convenience only and do not affect the interpretation of the terms;

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

(i)     a reference to a person includes a reference to a person, corporation, firm or other legal entity;

(iii)   “including” and similar expressions are not words of limitation;

(iv)  a reference to a clause is a reference to a clause in the General Terms; and

(v)   a reference to all or any part of a statute, regulation or code (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time

 

Last update: 1 November 2013

 


 

 

ENTERPRISE TERMS


1. THE AGREEMENT


(a) These Enterprise Terms are our standard terms and conditions for a customer (you/your) who:


(i) acquires a product or service for the purpose of resale;
(ii) is a government department or agency; or
(iii) is a business or non-profit organisation and acquires a product or service primarily for business use (or other use which is not personal, domestic or household use), and which:


(A) has, or we reasonably estimate will have, an annual spend with us of more than $20,000; or
(B) had a genuine and reasonable opportunity to negotiate the terms of the contract with us.


(b) You represent and warrant to us that you are not a Carrier or Carriage Service Provider. You must notify us immediately if you are, become or operate as a Carrier or Carriage Service Provider. If, in our reasonable opinion, you are, become, or operate as, a Carrier or Carriage Service Provider, we may cancel or suspend the Service, and in such event, we may enter into an agreement with you for the supply of wholesale services.
(c) An Agreement between you and us is created when we accept your Order for goods and services. It is a standard form of agreement under the telecommunications legislation and both parties must comply with it. The Agreement is made up of the following documents:


(i) the Order;
(ii) the Service Schedule; and
(iii) the Enterprise Terms.


(d) If there is any inconsistency among the documents comprising the Agreement, the order of precedence applies in descending order of the documents listed in clause 1(c) except that clause 10 (Liability and Indemnity) of the Enterprise Terms takes precedence over all other provisions of the Agreement.
(e) A copy of these Enterprise Terms and the Service Schedule is available on our website or by contacting our customer service team.
(f) If you are an ACL Customer, and a term of the Agreement would (except for this clause) be unfair (within the meaning of section 24 of the ACL) we will not apply or rely on that term without also taking steps to appropriately mitigate any unfairness. Those steps will be tailored to the particular situation, but may include, for example, offering you Walk Away Rights and a reasonable period to exercise them.


2. TERM


(a) The Agreement commences on the date we accept your Order and terminates when the Service is cancelled in accordance with the Agreement.
(b) If you order a Service with a Fixed Contract Period, the Service will be supplied from the Start Date and continue, subject to the terms and conditions of the Agreement, for the Fixed Contract Period and after that period, month to month unless either you or we give notice of cancellation 30 days before the end of the Fixed Contract Period.
(c) If you order a Service with no Fixed Contract Period, the Service will be supplied from the Start Date and continue, subject to the terms and conditions of the Agreement, on a month to month basis until cancelled by either party in accordance with the Agreement.


3. SERVICE ORDERS AND CHANGES


(a) The Order specifies the equipment, the Service, the plan and the Fixed Contract Period (if any) ordered by the Customer and which apply to the Agreement. The Service is described in the Service Schedule for that Service.
(b) You must submit each Order for the Service, or any change to the Service, in writing using our order form or in such other manner we reasonably require.
(c) To place an order, you must be at least 18 years of age. You must provide complete and accurate information as requested in our order form or otherwise and all consents we reasonably require in connection with the Service. If you do not do this, it may affect the way we assess your order and any credit terms, as well as cause delays, and you may incur additional costs of equipment delivery and provisioning the Service. You must promptly notify us of any change to your contact or other details stated in the Order.
(d) All Orders are subject to our acceptance. We may carry out a credit check and, at our absolute discretion, accept or reject an Order or accept an Order subject to provision of financial security or other conditions.
(e) We may rely on the authority of any of your employees who places an Order or gives a direction or consent on your behalf and you are bound by such an Order, direction or consent.
(f) Any of your terms and conditions stated on an Order is excluded from the Agreement unless we agree otherwise in writing.
(g) Before placing an Order, you are responsible for identifying your own business, functional and other requirements and for verifying that the Service and any equipment you order meet those requirements.
(h) After we have accepted the Order, you can only cancel or change the Order or the Service as permitted under the Agreement and you may incur a Break Fee or other charges as a result.


(i) By ordering the Service, you:
(i) represent and warrant that you meet the customer eligibility criteria for the Service, if any, specified in the Agreement;
(ii) acknowledge and agree that the Service has the limitations, restrictions and qualifications stated in the Agreement;
(iii) warrant that you have authority to order the Service to be installed and connected a specified in the Order and you authorise us to undertake any work, order any equipment and appoint us your agent to deal with other network suppliers, as required to supply the Service in accordance with the Agreement; and
(iv) agree to pay us all Charges in connection with the Service, and to comply with any conditions and your obligations stated in the Agreement.


4. SUPPLYING THE SERVICE


(a) We will supply the Service as described in the Service Schedule from the Start Date subject to the terms and conditions of the Agreement.
(b) We will supply the Service and any equipment within a reasonable time after acceptance of the Order and receipt of any initial payment which may be required. We may choose not to commence the process until after a cooling off period (if any) has expired. Before we can connect a service, we may need to order, configure or install equipment and make arrangements with our suppliers, which may impact connection and delivery dates. We aim to meet any service and equipment connection and delivery dates we have given you but those dates are estimates and not guarantees, and we are not liable for any failure to meet them except if we have agreed with you otherwise in writing, or if the law requires otherwise.
(c) Given the technology, we do not guarantee that we can provision and connect every service and we may cancel a Service under clause 9.2 if we determine that we will be unable to provision or connect it within a reasonable time after accepting an Order.
(d) We choose the method of provisioning and supplying the Service and we may use a combination of infrastructure and services of our own or provided by third parties. We may at any time vary the method, infrastructure and services which we use to supply the Service and we and our suppliers may make changes to the Service and to the infrastructure and services used to supply the Service at any time provided such variation or change does not materially impair supply of the Service.
(e) We aim to provide a quality service but given the technology, we do not guarantee voice quality or data download speeds or other quality of service of a particular standard, or continuous access to the Service at all times, or that the Service will be fault free or uninterrupted or in the case of a data service, that any material sent or received will be sent or received correctly, except if we have agreed otherwise in writing or if the law requires otherwise. Quality of service can vary by location and is affected by many factors outside our control, including the customer equipment you use, distance from the exchange and the quality of the line connecting the exchange to your premises.
(f) Except if we have agreed otherwise in writing, you are responsible for providing, installing, operating, upgrading and keeping in good working order all Customer Equipment. You are also responsible for obtaining all necessary consents and approvals (including landlord or building manager approval if required) in connection with the Service, and for providing adequate power supply and a suitable physical environment for equipment.
(g) You must arrange to give us safe access to your premises promptly when we ask if we need access to provision, connect, supply, install, maintain, support, upgrade, or repair the Service, and on cancellation to remove the Service. You must also, if we ask arrange that your suitably qualified representative is available onsite to assist. If you do not, you may incur additional charges and impact connection, service and repair times.


5. EQUIPMENT


5.1 Customer Equipment


(a) You must ensure that all Customer Equipment complies with applicable Australian laws and standards and our reasonable directions and is suitably provisioned and configured, and compatible for use with the Service.
(b) You must upgrade or reconfigure the Customer Equipment as we may reasonably request at any time, including as a result of changes to the infrastructure used to supply the Service.
(c) We may disconnect Customer Equipment from the Service if, in our reasonable opinion, it may interfere with or disrupt the Service.
(d) You acknowledge and agree that if Customer Equipment is faulty or not compatible, it may affect your ability to access the Service, the quality of the Service or our ability to provide support to you.
5.2 Purchase of equipment from us
(a) This clause 5.2 applies if you purchase equipment from us (including by instalment payments or by bundling with the Service).
(b) You must notify us immediately, and follow our directions, if you receive the equipment in damaged or incomplete condition.
(c) Title to equipment you purchase from us passes to you on payment in full for the equipment and risk of the equipment passes to you on delivery.
(d) The equipment we supply you may be locked and programmed to work only with the infrastructure used to supply the Service. If you ask us, we may (but are not obliged to) agree to unlock the equipment and in that case, we will not be liable to you for any associated loss, damage, expense or liability.
(e) If you change the electronic serial number or equipment identifier or perform a factory reset of equipment supplied by us, we will not be liable to you in connection with any resulting impact on our ability to supply the Service or provide remote support, and you must pay us our charges for any additional costs incurred as a result. It may also affect any rights and remedies you may have in relation to supply of the equipment.
(f) You are responsible for installation, upgrade and maintenance of all equipment you purchase from us unless we agree otherwise in writing.
(g) Until title passes to you under clause 5.2(c), we retain legal and equitable title in the equipment. If you sell equipment in which we retain title, you sell as principal not as our agent, must hold the proceeds of sale in a separate account on trust for us and you have a duty to account to us for the proceeds. This retention of title constitutes the grant of a purchase money security interest by you in favour of us in respect of all present and after-acquired equipment which we supply to you.
(h) Until title passes to you under clause 5.2(c), you must comply with the obligations set out in clause 5.3(d).
(i) If the equipment we supply you has the benefit of a warranty, details will be stated in the warranty information on our website.
(j) If for any reason we provide replacement equipment to you in advance of receiving the original equipment from you, we will bill you our standard retail price for the equipment. The charge will be cancelled when we receive the original equipment from you. If we do not receive the original equipment, or we have no obligation to repair or replace the equipment under warranty or other legal obligation, then you must pay us the charges billed.


5.3 Our Equipment


(a) This clause 5.3 applies if we loan or rent Our Equipment to you in connection with the Service.
(b) Title to Our Equipment does not pass to you at any time (including at the end of the loan or rental period).
(c) You are responsible for any loss of or damage to Our Equipment from the time of delivery to you until it is returned to us.
(d) You must, in respect of Our Equipment:


(i) keep it in your control at all times and at the premises to which we delivered it or other premises we have agreed to in writing;
(ii) not loan, rent, give or sell Our Equipment to any other person, or allow a security interest, charge, lien or encumbrance to be created over it, not attach it to any real property and not remove from it any nameplate identifying Our Equipment as our property;
(iii) only use it in connection with the Service and for the manufacturer’s intended purpose;
(iv) obtain all necessary consents and approvals (including landlord or building manager approval if required) for installation;
(v) provide a suitable physical environment for installation and operation and an adequate power supply;
(vi) install, operate and maintain the equipment in accordance with manufacturer’s requirements and our directions;
(vii) not change the electronic serial number or equipment identifier or perform a factory reset of it without our prior written consent;
(viii) comply with our directions; and
(ix) procure that all Users comply with your obligations under this clause 5.3(d).


(e) You must allow us to inspect, service, upgrade, reconfigure, repair, replace or disconnect Our Equipment at any time we reasonably request and ensure that no other person modifies, services, upgrades, reconfigures, repairs or disconnects Our Equipment except with our prior written consent.
(f) You must notify us immediately, and follow our directions, if you receive Our Equipment in damaged or incomplete condition, or if at any time Our Equipment is lost, damaged, stolen or becomes faulty while in your care, custody or control.
(g) On cancellation of the Service for any reason, the loan or rental of Our Equipment is automatically cancelled. We may cancel the loan or rental of Our Equipment immediately at any time by giving you notice:


(i) if, in our reasonable opinion, you are in breach of any obligation under this clause 5.3; or
(ii) if we are entitled to cancel the Service.
(h) On the sooner of expiry or cancellation of any agreed loan or rental period, you must permit us to enter onto the premises where Our Equipment is located and to disconnect and remove it, or if we request, at your cost, and in accordance with our directions, immediately return Our Equipment to us in good condition (except fair wear and tear).


5.4 PPSA & Security Interest


(a) This clause 5.4 applies to the extent that the Agreement creates or evidences a security interest in equipment (and in proceeds of sale of equipment) including equipment to which we retain title under clause 5.2(f), and Our Equipment, for the purposes of the Personal Property Securities Act 2009 (Cth) (‘PPSA’). The terms ‘accession,’ ‘perfected security interest,’ ‘security agreement,’ ‘security interest’, and ‘verification statement’ have the meanings given them in the PPSA.
(b) You must, if requested by us, promptly sign any document and do anything else we reasonably require to ensure that our security interest is a perfected security interest. You must not enter into any security agreement that permits any other person to have or to register any security interest in respect of the equipment or proceeds of sale of the equipment until we have perfected our security interest.
(c) You acknowledge and agree that the equipment is not used predominantly for personal, domestic or household purposes and accordingly the parties agree to contract out of sections 95, 118, 121(4), 130, 132(4), 135, 142 and 143 to the extent permitted by section 115(1) of the PPSA. You waive any rights you may otherwise have to receive notices under sections 95, 118, 121, 130, 132 or 135 of the PPSA, to apply to court for an order concerning the removal of an accession under section 97 of the PPSA, to object to a proposal from us to retain any collateral under sections 130 and 135 of the PPSA, and to receive a verification statement in relation to registration events in respect of the equipment supplied to you from time to time.
(d) You and we agree not to disclose information of the kind that can be requested under section 275(1) of the PPSA. You must do everything on your part necessary to ensure that section 275(6)(a) of the PPSA continues to apply.


6. NETWORK MAINTENANCE, SUPPORT SERVICES AND FAULT REPAIR


Our responsibility and obligations


(a) We and our suppliers may perform maintenance, upgrade or repair services at any time on the infrastructure we and they use to supply the Service and will try to minimise any interruption to the Service or adverse impact on quality.
(b) We provide remote support for use of the Service in Australia within the hours stated in the Service Schedule, or if not stated there, those stated on our website for the Service. We may agree to provide additional support services, for additional charges.
(c) We are only responsible for repairing a fault in the Service which you notify to us if that the fault is created or caused within Our Equipment or the infrastructure we and our suppliers use to supply the Service, up to our side of the Network Boundary.
(d) If we are responsible for repairing a fault in the Service, we will take reasonable steps to restore the Service as soon as reasonably practicable. We aim to meet any fault repair times that we give you but (except if we have agreed otherwise with you in writing or if the law requires otherwise) those times are estimates only and we do not guarantee to meet them. If we become aware that a fault in the Service is outside our responsibility for repair, our sole responsibility is to notify the supplier, you or other person whom we reasonably consider responsible for repairing the fault. We may, but are not obliged to, provide additional assistance
Your responsibility and obligations
(e) You are responsible for, and must repair or procure the repair of a fault in the Service created in or caused by the Customer Equipment or on your side of the Network Boundary. You are responsible for providing all support services in respect of the Customer Equipment and infrastructure on your side of the Network Boundary.
(f) You must promptly report any fault in the Service which in your reasonable opinion is our responsibility, and you must make any request for other support services, by contacting our customer service team by telephone or online inquiry as stated in the Service Schedule, or if not stated there, those stated on our website for the Service. Before reporting a fault to us, you must try to ensure that the fault is not in the Customer Equipment or on your side of the Network Boundary.
(g) You must promptly notify us of any changes to the Customer Equipment which may be relevant to the Service.
(h) You must arrange access to the premises if we request and provide other help if needed to enable us, our contractors and suppliers to investigate and repair a fault and provide support services.


7. USING THE SERVICE


Your responsibility and obligations


(a) You must ensure that the Service is used only for its intended use as specified in the Service Schedule.
(b) You must comply with our acceptable use policy available on our website and fair use policy, if any, referred to or specified in the Service Schedule.
(c) You are responsible for keeping secure the means of access to the Service to ensure that unauthorised access does not occur. You must keep secure any equipment you connect to the Service and any data stored on that equipment (including keeping user names and passwords secure) and you are responsible for the risk of unauthorised access, misuse and loss or corruption of that data. You must take reasonable steps to keep the Service and your account secure from unauthorised access. You must notify us immediately you become aware of any actual or attempted unauthorised use of the Service or breach of security, giving us your account number and full details of the security breach. Information about security tools is available on our website.
(d) You are solely responsible for all use of the Service and all risks associated with your activities using the Service (including risks associated with transmitting, communicating, accessing, downloading, or publishing material, content of communications, making purchases or providing personal or confidential information, ensuring that material is sent or received correctly and data loss, corruption or interception, whether by using the internet or other means). We are not liable for any claim, loss, cost or damage arising from your activities in connection with using the Service.
(e) You must ensure that all Users comply with your obligations under clause 7 and you are responsible if they fail to do so.
(f) You must comply with our reasonable directions and all directions of any regulatory body in connection with use of the Service. Where you access third party content or where a third party network is used to transmit material in connection with the Service, you must comply with any applicable acceptable use terms or other rules of those third parties.
(g) You must provide us all information and assistance reasonably required to enable supply of the Service and compliance with any request or direction of a government agency, emergency services organisation or other authority and to investigate if we reasonably suspect unauthorised use of the Service or you have misused the Service or breached the Agreement.
(h) You must use the Service only for lawful purposes and activities and must comply with all laws, regulations and industry codes of practice which apply to your use.
(i) You must not use the Service in any manner which could cause you or us to violate a law, regulation or industry code, commit an offence, endanger any person, damage any property, infringe a person’s rights (including Intellectual Property Rights), or which could give rise to us incurring a liability. You must not use the Service to transmit, communicate, access or publish any material which is unlawful, offensive, indecent, defamatory, abusive, menacing or harassing, material which is unsolicited and material known to contain a virus or similar.
(j) You must not knowingly do anything or use the Service in any manner which may compromise the security or safety of, or which might damage, interrupt or interfere with the operation of the Service, the infrastructure used to supply the Service, Our Equipment, or any other computer, system, network or services, including hack or otherwise obtain unauthorised access to any of them.
(k) You are responsible for billing your own customers including Users for services provided by you using the Service (except if we agree in writing to supply billing services to you), for collecting payments from them, for defending all claims from them and for providing support services to them in respect of the Service including receiving, handling and resolving all of their inquiries, fault reports and complaints.


Our Rights to intercept, monitor and take other action


(l) You acknowledge and agree that, without incurring liability to you or any User, we may:


(i) intercept communications and provide call related information to government authorities (including law enforcement agencies), to the extent required by law to do so;
(ii) (but are not obliged to) monitor the usage of the Service and communications sent over it for compliance with the Agreement and to protect the networks and infrastructure used to supply the Service and its other users;
(iii) implement traffic management measures as set out in our acceptable use policy;
(iv) if, in our reasonable opinion, you or any User are not complying with clause 7, take such action as we deem necessary; and
(v) take any steps necessary to monitor and ensure our compliance with the law, relevant industry code of practice, court order, or notification or direction from a regulatory body.


(m) We may, but are not obliged to, scan Customer Equipment or otherwise test the security of your Service, in order to assist you to keep your Service secure from unauthorised access.


8. CHARGES, INVOICING AND PAYMENT


8.1 Charges


(a) You must pay all Charges in connection with the equipment, the Service and the Agreement set out in the Order, the Service Schedule, the Special Offer (if any), these Enterprise Terms and the Standard Fee Table and any other charges we invoice in accordance with the Agreement.
(b) Charges for the Service accrue from the Start Date and may include set up Charges (which may be payable before we commence provisioning), usage based Charges and recurring Charges and any other charges set out in the Agreement.
(c) You are responsible for all Charges in connection with the Service whether or not you authorised the use, including those incurred by any User or other person, those arising from toll fraud or other unauthorised or fraudulent usage, from your failure to access or disconnect a call properly, from your failure to disconnect a Service when vacating premises or from your failure to keep your Service secure.
(d) Recurring Charges are payable from the Start Date until cancellation of the Service. The recurring Charges continue to be incurred during any period of interruption to the Service including if caused directly or indirectly by your failure to connect equipment to the Service, failure of Customer Equipment or other fault of you or any User, relocation of the Service, failure of services provided to you by anyone else (including broadband internet service where this is not provided by us), interruption for an insignificant period, or suspension of the Service for any reason.
(e) If you ask us to provide services onsite, or outside the support hours specified in clause 6(b), or in connection with Customer Equipment, you must pay our charges for those services. Those services may include repair, replacement, upgrade, provisioning, reconfiguring or support and any other kind of services.
(f) You must pay our charges to repair, replace, modify or service the Service or Our Equipment if required in connection with:


(i) Customer Equipment;
(ii) your failure to return Our Equipment in good condition (excepting fair wear and tear) when required under the Agreement or loss, theft or damage of Our Equipment except to the extent caused or contributed to by us; and
(iii) any negligence, fraud or breach of the Agreement by you or any User or any of your or their officers, employees, agents or contractors.


(g) You must pay our charges incurred in connection with any failure by you to comply with your obligations set out in clauses 4(g), 6(f), 6(g) and 6(h).
(h) We may from time to time make a Special Offer subject to Charges, terms and conditions that differ from those in the Service Schedule. If you accept a Special Offer from us, the Charges and terms and conditions of the Special Offer take priority over the Service Schedule, to the extent they differ, only for the limited period specified in the Special Offer.
(i) All Charges are in Australian dollars. If a Charge excludes GST, and we are liable to pay GST or other tax on supply of the Service to you, we may increase the Charge by the amount of GST or other tax and you must pay us the whole of that amount when we ask. If the charge is stated to be inclusive of GST, but the GST rate used is incorrect or changes, the amount of the charge will be adjusted to reflect the actual GST rate.


8.2 Invoicing and Payment


(a) We may invoice and require payment of certain Charges, including those for equipment, installation, set up and provisioning of the Service, before commencing to deliver equipment or provision the Service. We may invoice and require payment of Charges for any additional services before provision of those services. Unless otherwise stated in the Service Schedule, recurring Charges are billed in advance and usage based Charges are billed in arrears. We may invoice and you must pay any minimum monthly Charge stated in the Service Schedule even if you have not incurred the services related to those Charges.
(b) We will send a monthly itemised invoice for the Charges to your address (by email, facsimile or post and in HTML, pdf or other format at our option) and may issue interim invoices and require interim payments to maintain your account within any credit limit approved by us or to maintain any minimum account balance stated in the Critical Information Summary. We aim to include all charges relating to the current billing period on the invoice but some of the charges may appear on later invoices. If we send or offer to send your invoice by email, and you ask us to provide a paper copy, we may charge you a paper invoice fee.
(c) If we have taken reasonable steps to ensure you receive it, an invoice remains payable even if you do not receive it because you have changed address and not notified us or because your email mailbox is full or for other reason attributable to you.
(d) If you ask us to re-send you an invoice more than 3 months after the issue date, we may charge you an invoice copy fee for each invoice you request.
(e) You must pay the Charges by the due date specified on the invoice and must make any interim payment described in clause 8.2(b) by the due date notified by us.
(f) You must pay the Charges using the payment method specified on the invoice, or on our website, except that if a specific payment method is required in the Service Schedule, or otherwise agreed with you, you must use that payment method.
(g) If you have agreed to pay by automatic payment or direct debit from your credit card, charge card or bank account, you:


(i) authorise us to:


(A) (in the case of payments by card) disclose your card details to and obtain information from the card issuer to verify those details and your ability to pay the Charges using the card; and
(B) debit your credit card, charge card or bank account all Charges you owe us from time to time in accordance with the Agreement, including any Charges which may become owing as a result of cancellation of the Service;


(ii) must ensure that your account has sufficient funds to allow payment when required; and
(iii) must notify us promptly if there is a change to your card or bank details.


(h) If you pay by credit card, you must pay a credit card fee if applicable as specified on the invoice. We may choose to stop accepting credit or charge cards from one or more providers, by giving you reasonable notice.
(i) If we identify an error in an invoice, we will apply an adjustment to your account which will appear on your next invoice. Any overpayment will be credited to your account and you must pay us for any underpayment.
(j) If you fail to pay the Charges in accordance with clause 8.2(e), we may:


(i) withdraw any discounts in connection with the Service and/or suspend or cancel the Service in accordance with the Agreement;
(ii) charge you a late payment fee;
(iii) exercise a general lien over any Customer Equipment in our possession until any outstanding charges have been paid in full; and
(iv) charge you our costs of recovering payment for outstanding charges, including reasonable debt recovery agent costs and legal costs.


(k) If your payment is dishonoured by the bank or credit or charge card issuer, we may charge you a dishonour fee.
(l) If at any time we have reason to become concerned about your ability to pay the Charges, we may, in respect of your credit account (if any), decline to extend further credit or vary your credit limit and any related conditions.
(m) If you fail to pay any amount when due or otherwise breach the Agreement, become bankrupt, insolvent, enter into an arrangement with your creditors, receivership, liquidation or similar, or if we become concerned about your ability to pay the charges for any other reason, we may cancel your credit account without prior notice and all balances owing will become immediately due and payable.
(n) You must not set off or deduct any amount from payments you owe us. We may set off or deduct any amount we owe you.


8.3 Billing Disputes


(a) If, in your reasonable opinion, there is an omission or error in relation to a charge on an invoice, you may, before the due date for payment of the invoice, dispute the invoice by giving written notice (‘Billing Dispute Notice’) of a billing dispute to our customer service team. The Billing Dispute Notice must, as a minimum, include the date and number of the disputed invoice, itemised details of the charges in dispute, detailed reasons for dispute and any documentation sufficient to support your claim and to enable us to investigate it.
(b) You must pay any undisputed amount by the invoice due date.
(c) We may, at any time, reject a billing dispute if:


(i) we receive the Billing Dispute Notice after the due date for payment of the invoice;
(ii) the Billing Dispute Notice does not contain the minimum information required by clause 8.3(a);
(iii) you do not, within 5 business days of our request, provide such additional information and documentation as we may reasonably request to enable us to investigate the billing dispute; or
(iv) in our reasonable opinion, the billing dispute is not genuine.


(d) If we reject a billing dispute for any reason under clause 8.3(c), you must pay the whole of the invoice (disputed and undisputed amounts) by the due date, or if the due date has passed, immediately, together with interest, if charged, from the due date of the disputed invoice until the date of payment calculated in accordance with clause 8.2(e).
(e) Where you give us a Billing Dispute Notice in accordance with clause 8.3(a) and promptly provide such other information and documentation as we may reasonably request, we will investigate the dispute within a reasonable period and notify you of our determination and reasons.
(f) Within 7 days after receiving notice of our determination, you must pay any outstanding amount which we have determined is payable, together with interest, if charged, from the due date of the disputed invoice until the date of payment calculated in accordance with clause 8.2(e).
(g) We are committed to ensuring that our bills are accurate and unless you provide reasonable substantiation of your claim, we are entitled to rely on our records as proof of usage and charges incurred. If you ask us to investigate a dispute using material provided by you, you must pay our reasonable charges to evaluate the material provided.


8.4 Financial Security


(a) As a condition of our acceptance of an Order, or if we have reason to be concerned about your ability to pay at any time, we may require you to provide a security (if not already provided) in the form of a cash deposit to be held by us, or a bank guarantee in a form acceptable to us, or to increase any security previously provided.
(b) If you fail to provide adequate security within 7 days of our request, we may, without liability, suspend the Service to you in accordance with the Agreement until we receive adequate financial security.
(c) We may access the security at any time to pay outstanding Charges you owe us.
(d) We will refund you the security deposit less any amounts owing, without interest, within a reasonable period of the sooner of you satisfactorily completing the terms of the security arrangements, or cancellation of the Service.


9. SUSPENSION AND CANCELLATION


9.1 Your Rights to Cancel the Service


(a) To cancel the Service you must give us written notice as set out in clause 17(a) (unless the law specifies otherwise) with the notice periods set out in this clause 9.1. Failure to pay Charges does not automatically cancel the Service and Charges will continue to be incurred until the Service is cancelled by you or us.
(b) You may cancel a Service with no Fixed Contract Period at any time by giving us 30 days’ notice before the end of a billing period. You acknowledge and agree that you may incur the Charges set out in clause 9.3 as a result.
(c) You may cancel a Service with a Fixed Contract Period:
(i) on expiry of the Fixed Contract Period by giving us notice 30 days before expiry of the Fixed Contract Period; or
(ii) at any time after expiry of the Fixed Contract Period by giving us 30 days’ notice before the end of a billing period.
(d) You may cancel the Service by giving us notice if we commit a material breach of the Agreement and fail to correct the breach within 30 days of receiving notice from you to do so.
(e) You may cancel the Service if permitted under the law or under any other clause of the Agreement.


9.2 Our Rights to Cancel or Suspend the Service


(a) To cancel the Service we must give you notice as set out in clause 17(a) if required but there are also circumstances where we can cancel immediately without giving you notice beforehand, as set out in this clause 9.2.
(b) We may cancel the Service:


(i) if we determine that for technical or other reasons we will be unable to provision or connect the Service to you within a reasonable time after accepting the Order, immediately by giving you notice;
(ii) where the Service has no Fixed Contract Period, or the Fixed Contract Period has expired, at any time by giving you 30 days’ notice;
(iii) where the Service has a Fixed Contract Period, by giving you notice 30 days before expiry of the Fixed Contract Period;
(iv) if we are entitled to cancel any other Service we supply to you, by giving you notice; or
(v) if you consent to cancellation of the Service.


(c) We may cancel or suspend a Service immediately by notice to you, if you:


(i) commit a material breach of the Agreement which is capable of being corrected and fail to correct the breach within 30 days of receiving notice from us to do so;
(ii) commit a material breach of the Agreement which is not capable of being corrected;
(iii) withdraw your consent (if any) to waive your rights and protections under the Customer Service Guarantee Standard;
(iv) fail to provide us with access, authority or information reasonably notified as required by us to enable us to provide the Service or as set out in clause 11;
(v) or any User, in our reasonable opinion, have been, or are, involved in fraud or other illegal conduct in connection with the Service;
(vi) or any User fail to use the Service as permitted under the Agreement;
(vii) in our reasonable opinion, are, or are operating as, or using the Service as, a Carrier or Carriage Service Provider;
(viii) in our reasonable opinion, are using the Service for a purpose other than for which it is intended as specified in the Service Schedule, and you fail to change to a more suitable Service within 30 days of receiving our notice requesting you to do so;
(ix) fail to pay any amount owing to us within 7 days of us giving notice to you that the amount is overdue;
(x) in our reasonable opinion, present an unacceptably high credit risk to us;
(xi) fail to provide or increase financial security as required under the Agreement;
(xii) become bankrupt, insolvent, or have a receiver, manager, administrator, provisional liquidator or liquidator appointed, enter into an arrangement with your creditors, or if a partnership the partnership is dissolved or application made to dissolve the partnership;
(xiii) vacate your premises; or
(xiv) (in the case of a Service with no Fixed Contract Period) do not use the Service for a period of at least 6 months, have a zero or negative account balance, and do not notify us that you wish to retain the Service, within 30 days of receiving notice from us of our intention to cancel.


(d) We may cancel or suspend a Service immediately and we will try, but are not obliged, to give notice to you, if:


(i) we are required to do so by law, or to comply with a direction or order of a government authority;
(ii) a competition notice is or is likely to be issued by a government authority in connection with the Service;
(iii) there is an emergency;
(iv) we have reasonable grounds to believe there is a threat or risk to the security of the Service or integrity of the network or the Service may cause death, personal injury or damage to property;
(v) we are unable to supply the Service because of an Event;
(vi) prudent or necessary to allow maintenance, upgrade or repair of, or to avoid or minimise a risk to the networks and infrastructure used to supply the Service, or for other operational reasons; or
(vii) where we supply the Service using another supplier’s network or services, our supplier ceases to supply its services to us.


(e) We may cancel the Service if permitted under any other clause of the Agreement.
(f) If we suspend the Service under the Agreement, we may later cancel the Service for the same reason.


9.3 Effect of Suspension or Cancellation


(a) During any period of suspension, you remain responsible for all recurring Charges which will continue to be incurred for the Service and any usage based Charges incurred.
(b) If the Service is cancelled before we give you notice of Service connection, you must pay:


(i) (except if the Service is cancelled under clause 9.1(d) or 9.2(b)(i)), our charges and all third party costs we have incurred in connection with preparing to supply the Service; and
(ii) equipment charges in accordance with clause 9.3(d).


(c) If the Service is cancelled for any reason after we give you notice of Service connection, you must pay:


(i) all Charges incurred for the Service, including any usage based Charges whether incurred before or after the date of cancellation;
(ii) if the Service is cancelled within a Fixed Contract Period (except under clause 9.1(d) or 9.2(d)), the applicable Break Fee; and
(iii) equipment charges in accordance with clause 9.3(d).


(d) If any equipment you purchased from us has not been paid in full (including because it was purchased by instalment payments), or was supplied free or at a discount to our standard retail price as part of a Service with a Fixed Contract Period or otherwise, on cancellation of the Service for any reason, you must pay us the unpaid balance of our standard retail price for the equipment (including the amount of any discount given).
(e) If any other service was supplied free or at a discount to our standard retail price because it was supplied with the cancelled Service, we may vary the Charges for the other service and you must pay those varied Charges for that other service.
(f) Cancellation of the Service takes effect on expiry of any notice period required by the Agreement, unless we agree otherwise. On cancellation of the Service for any reason, we may disconnect the Service and you must:


(i) immediately cease to use the Service;
(ii) immediately cease to use, and comply with your obligations in respect of Our Equipment as set out in clause 5.3(h), and in respect of any software licensed by us as set out in clause 12(e)(vi); and
(iii) pay all invoices for the Charges by the due dates.


(g) Except if the Service is cancelled under clause 9.1(d) or 9.2(b)(i),(ii) or (iii), we are not liable to refund any monies which you have paid in advance. If the Service is cancelled under clause 9.1(d) or 9.2(b)(i),(ii) or (iii), we will refund you the balance of any monies which you have paid in advance, after you have met your obligations under clauses 9.3(b), 9.3(c), 9.3(d) and 9.3(f).
(h) Except if required otherwise by law or as otherwise stated in this clause 9, we are not liable to you for any loss, cost, damage or liability in connection with suspension or cancellation of the Service by us in accordance with the Agreement.
(i) Subject to clause 9.3(e), cancellation of one Service does not affect your contract obligations in connection with any other services we supply to you.
(j) If we agree to reconnect a Service after suspension or cancellation, you may incur a reconnection fee.
(k) You acknowledge and agree that the Break Fee (if any) is a genuine pre-estimate of the damage we will suffer as a result of cancellation or change of the Service.
(l) Cancellation of the Service or termination of the Agreement does not extinguish a party’s debt, obligation or liability which has accrued under it.
(m) On cancellation of the Service or termination of the Agreement for any reason, the parties are released from the obligation to continue to perform the Agreement except those obligations in clauses 8 (Charges, Invoicing and Payment), 9.3 (Effect of Suspension or Cancelation), 10 (Liability and Indemnity), 11 (Privacy), 12 (Software Licence) and 16 (Intellectual Property Rights and Documents) and any other obligations that, by their nature, survive termination.


10. LIABILITY AND INDEMNITY


10.1 Our Liability


Service Interruption and Delay


(a) Subject to clause 10.1(b), we accept liability for any interruption or delay to supply of the Service to you to the extent caused by our negligence, and to the full extent the law permits, we limit our liability for the interruption or delay and all related claims to crediting to you, if claimed within a reasonable period by you:


(i) the amount of the applicable service credit we are obliged to give, if any, under any agreed service level for the Service; or
(ii) if no service credit or rebate applies to the interruption or delay, the amount of any recurring Charges billed to you for the affected Service for the period of the interruption or delay.


(b) To the full extent the law permits, an interruption or delay to the Service is considered not to be caused by our negligence, and we are not liable, if it is caused or contributed to by an Excluded Incident.


Implied terms


(c) If we are not permitted to exclude liability to you under any law, we accept that liability, and to the full extent the law permits, limit our liability to replacing or repairing goods or resupplying services or paying the cost of replacement, repair or resupply. If the law requires us to pay you compensation for reasonably foreseeable loss, to the full extent the law permits, we do not accept liability for any loss in connection with the use of a Residential Service for business purposes because it is not reasonably foreseeable loss as a Residential Service is intended to be used for personal, domestic or household purposes.
(d) Subject to clause 10.1(c), to the full extent the law permits, we exclude all terms, conditions, warranties and guarantees implied or imposed by law.


Personal injury or death


(e) The limitations set out in this clause 10.1 do not apply to any legal liability we may have for personal injury or death.


Events


(f) To the full extent the law permits, we are not liable for any delay or failure to perform an obligation to the extent that the delay or failure is caused by an Event.


Consequential Loss


(g) To the full extent the law permits, we exclude all liability to you for loss of profits, loss of revenue, loss of opportunity or goodwill, loss of actual or anticipated savings, loss or corruption of data, loss of any equipment value, any exemplary, punitive or special damage and any kind of indirect or consequential loss.
Contributory negligence
(h) We reduce any liability we may have to you to the extent any loss, cost, damage or expense is caused or contributed to by you, a User or any of your or their officers, employees, agents or contractors, or by anyone else, or by Customer Equipment, or by your failure to take reasonable steps to mitigate your loss, cost, damage or expense.


User Claims


(i) To the full extent the law permits, we exclude all liability to all Users and all liability to you to the extent caused or contributed to by any Claim by a User, whether arising under contract, negligence or other tort, statute or otherwise.
General exclusion and limitation of liability
(j) To the full extent the law permits, if we do not expressly accept liability to you in connection with the Agreement or the Service under this clause 10.1, then we exclude that liability, whether arising under contract, negligence or other tort, statute or otherwise.
(k) To the full extent the law permits, and subject to clause 10.1(c), we limit our total cumulative liability to you, for all loss, cost (including legal costs), damage or expense suffered or incurred by you for all Claims, in aggregate total, to the lesser of the amount you paid us for the Service in the 6 months preceding the most recent claim and $100,000.
(l) The limitations and exclusions of our liability set out in this clause 10.1 are to be construed for our benefit and that of each of our Related Bodies Corporate.


10.2 Customer Indemnity


(a) You must pay us on demand the amount of any loss, cost (including legal costs), damage, expense, Claim (including third party claims) and any other liability, whether arising under contract, negligence or other tort, statute or otherwise, suffered or incurred by us, any of our Related Bodies Corporate and contractors in connection with:


(i) use of the Service by you, a User or any of your or their officers, employees, agents or contractors;
(ii) Customer Equipment; and
(iii) any inaccurate or incomplete information or improper authorisation provided to us or our contractors by you, your employees, agents or contractors in connection with the Service.


(b) You must pay us on demand the amount of any loss, cost (including legal costs), damage, expense, Claim (including third party claims) and any other liability suffered or incurred by us, any of our Related Bodies Corporate and contractors arising from a Claim by a User in connection with:


(i) use of any goods and services including the Service; and
(ii) supply, or interruption, delay or defect in supply, of any goods and services including the Service.
(c) If the customer for a Service is more than one person then each of you is jointly and severally liable in all respects under the Agreement.


11. PRIVACY


(a) We collect, use and disclose your personal information as set out in our privacy policy published on our website, and as disclosed to you when we collect information from you.
(b) If you do not provide personal information which we reasonably require, we may choose not to supply, or to cancel or suspend supply of the Service to you, or to limit or not to provide credit terms to you.
(c) You may request us only to send you communications about your account, the Agreement or as required by law, and not to send communications which market our services or Special Offers. You can access and update the personal information we hold about you. Please see our privacy policy on our website for information about this.


12. SOFTWARE LICENCE


(a) This clause 12 applies if we supply any software to you in connection with the Service, except to the extent stated otherwise in the Service Schedule or agreed in writing by us.
(b) We grant you a revocable, non-exclusive, non-transferable licence to use the software:


(i) if third party software, subject to the terms and conditions of the applicable third party software licence; and
(ii) otherwise, subject to the terms and conditions of any licence agreement packaged with the software; and
to the extent there is no conflict, the terms and conditions of this clause 12.


(c) You acknowledge and agree that we do not warrant the performance or features of the software and are not responsible for providing any upgrades or updates for the software.
(d) You may only use the software until cancellation of the software licence or the Service in connection with which the software is licensed.
(e) You must:


(i) only use the software with the Service and in accordance with our directions;
(ii) comply with any restriction on the number of end users or other capacity restriction applicable to the software;
(iii) not copy, modify, decompile or reverse engineer the software or derive or develop other software based on the software we supply;
(iv) not remove or modify any copyright notice on the software;
(v) not sub-license, assign or otherwise transfer the right to use the software to any other person; and
(vi) cease to use the software on the sooner of our request or cancellation of the Service, and if we request, promptly return to us or delete or destroy all copies of the software in your possession or control.


13. TELEPHONE NUMBERS AND IP ADDRESSES


(a) You acknowledge and agree that any telephone number used in connection with the Service is allocated and regulated by law and your right to use it may cease on cancellation of the Service (unless you transfer it away to another service provider) or if the number is required by the numbering regulations to be changed. If on cancellation of the Service, you do not transfer the telephone number to another service provider, it may be issued to another customer as set out in the numbering regulations. We will not be liable for any loss, cost, expense, damage or liability suffered or incurred by you or User arising from or in connection with loss of the right to use a telephone number or change of a telephone number, in accordance with the numbering regulations.
(b) If we allocate an IP address to you for the Service, you must use it only connection with the Service. You do not own the IP address and your right to use it ceases on cancellation or suspension of the Service for any reason.


14. CHANGES TO THE AGREEMENT


(a) We may make a change to the Agreement which impacts you, at any time, and without giving you prior notice, if you agree to the change or if the change is necessary for security or technical reasons or required by law.
(b) We may vary any Charge and introduce any new Charge (at any time and without prior notice unless stated otherwise):


(i) for international rates or any other Charge described as variable or subject to change or similar and for incidental charges such as credit card fees;
(ii) to reflect an increase in our costs of supplying the Service resulting from a regulatory decision;
(iii) to reflect an increase in price from a supplier to us (where we use the services of that other supplier to provide the Service);
(iv) to reflect a change in tax laws; and
(v) as permitted under any other clause of the Agreement.


(c) Apart from the kinds of changes set out in clauses 14(a) and 14(b), we may only vary the Agreement in a manner which could be reasonably expected to adversely affect you, by giving you reasonable notice in accordance with the telecommunications legislation relating to standard forms of agreement. We may make any other variation to the Agreement at any time and without prior notice to you.
(d) You can only change the Agreement with our written agreement. An upgrade, downgrade, relocation or other change to the Service (if we agree) may result in revised Charges, incur additional Charges (including Break Fee), impact provisioning times and quality of service and cause interruption to the Service.


15. RELATIONSHIP OF THE PARTIES


(a) The relationship between you and us is that of independent contractors and nothing in the Agreement creates a relationship of partnership or agency between you and us.
(b) You are not authorised to act on our behalf, to bind us to any obligation or to make any representation to a User or any other person on our behalf. You must not represent to a User or any other person that you are approved by us, or that you are our dealer, agent or representative.


16. INTELLECTUAL PROPERTY RIGHTS AND DOCUMENTS


(a) All Intellectual Property Rights remain the property of the party which owns or creates them.
(b) If we develop any Intellectual Property Rights in the course of performing the Agreement, in the course of preparing any proposal or quotation or other material for submission to you, or otherwise in connection with the Agreement, those Intellectual Property Rights remain our property and all information relating to those Intellectual Property Rights is our confidential information.
(c) Nothing in the Agreement is to be construed as, and the supply of the Service by us is not to be construed as, an assignment of any Intellectual Property Rights, or grant of licence of any Intellectual Property Rights, by us to you.
(d) You must not use any of our trade names, trademarks, service marks, domain names or logos or those of any of our Related Bodies Corporate without our prior written consent.


 

 

Continued from Part 3...

 

17. GENERAL


(a) A notice required to be given by one party to the other must be given in writing unless otherwise specified in the Agreement. We may give notice to you by mail, facsimile, by message on or sent with the invoice, or by email to your last known address. You may give notice to us by mail, facsimile or email to our customer service team. A notice will be deemed to be received as follows: if given by normal mail on the 3rd day after posting, if given by express post on the next day after posting, if given by facsimile or email immediately when sent if during normal working hours, or if outside those hours, at 9am on the next working day.
(b) You are responsible for complying with all laws, regulations, determinations, standards and industry codes applicable to your business, use of the Service by you and any User, and any resupply of the Service by you, including those applicable to supply of telecommunications services.
(c) We do not provide a priority assistance service for life threatening medical conditions.
(d) We may at our absolute discretion pay commission to any person in connection with the Agreement.
(e) We may subcontract any work to be performed under the Agreement but will retain responsibility for the work. We may arrange for any of our obligations under the Agreement to be performed by any of our Related Bodies Corporate.
(f) Each party must bear its own costs in respect of the Agreement and any document contemplated by it.
(g) If a provision of the Agreement is invalid or unenforceable in a jurisdiction, it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and that fact does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions.
(h) Failure by a party to exercise or delay in exercising a right does not prevent its exercise or operate as a waiver. A waiver is effective only in the specific instance and for the specific purpose for which it is given.
(i) The Agreement is the entire agreement of the parties about the subject matter of the Agreement and supersedes all prior oral or written representations, understandings or agreements about that subject matter.
(j) Except as otherwise stated, all rights and remedies granted to a party under this Agreement are cumulative and in addition to and not in place of any other rights or remedies available at law or equity.
(k) You acknowledge and agree that in entering into the Agreement you have not relied on any representations made by or on behalf of us, other than those expressly made in the Agreement.
(l) You may only assign your rights under the Agreement with our prior written consent. We may assign our rights under the Agreement to any person.
(m) The Agreement is governed by the laws of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of the courts of that state.


18. DICTIONARY AND INTERPRETATION


(a) Terms used in these Enterprise Terms have the meanings given them below unless the context requires otherwise.


ACL means the Australian Consumer Law, which is set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).


ACL Customer means a person who enters into a consumer contract or small business contract (as those terms are defined in the ACL) for goods and/or services.


Agreement means the terms and conditions on which we supply the Service to you and is made up of these Enterprise Terms, the Service Schedule and the Order.


Break Fee means the fee payable by you in respect of a Service with a Fixed Contract Period if you change a plan or if the Service is cancelled and unless stated otherwise in the Service Schedule, is calculated by multiplying the minimum monthly charge by the number of months remaining in the Fixed Contract Period as at the date of Service cancellation (months remaining x minimum monthly charge).


Carrier and Carriage Service Provider have the meanings given them in the Telecommunications Act 1997 (Cth).


Charges means those monies payable by you to us under the Agreement as varied in accordance with the Agreement. Charges include those set out in the Order, the Service Schedule, the Standard Fee Table, the Special Offer (if any) and any amounts payable for rental of Our Equipment and for provision of any services by us and any incidental charges.


Claim means any claim made (whether in the form of an allegation, demand, suit, action or other proceeding of any kind), whether arising under contract (including under any warranty or indemnity or any other breach, actual or anticipatory including repudiation), in equity, in restitution, negligence or any other tort, strict liability, under statute or otherwise at all.

Customer Equipment means equipment, used in connection with the Service and necessary for us to supply the Service to you, other than Our Equipment and the networks and infrastructure we and our suppliers use to supply the Service to you. Customer Equipment includes cabling, telephone access lines, modems, telephone and computer equipment, software, infrastructure and services of your own or a User, or provided to you or a User by a third party, including all equipment you purchase from us but excluding Our Equipment.


Customer Service Guarantee Standard or CSG means the Telecommunications (Customer Service Guarantee) Standard 2011.


Enterprise Terms means the terms and conditions set out in this document.


Event means any circumstance outside the reasonable control of the affected party, including act of god, fire, flood, storm, earthquake, war, riot, strike or unforeseen labour dispute, shortage of labour, equipment or materials, change of law or regulation, act or omission of any government authority including failure or delay in granting any approval or licence, electromagnetic interference, failure or variations in power supply, air conditioning or humidity control, act or omission of any of our suppliers or other third party, cable cut, failure of network, equipment, software, facilities or infrastructure owned or operated by any of our suppliers or another third party.


Excluded Incident means an interruption or delay to the Service caused directly or indirectly by:


(i) an Event;
(ii) any fraud, negligence or breach of the Agreement by you, a User or any of your or their officers, employees, agents or contractors;
(iii) Customer Equipment;
(i) Our Equipment loaned to you;
(iv) provisioning, upgrade or reconfiguring of systems or equipment requested by you;
(v) cancellation or suspension of the Service in accordance with the Agreement; or
(vi) scheduled maintenance, upgrade or repair of the networks and infrastructure we and our suppliers use to supply the Service to you or Our Equipment.


Fixed Contract Period in respect of a Service, means the minimum contract term (if any) specified in the Order for the Service, commencing on the Start Date, but does not mean a month to month term.


Intellectual Property Rights means all intellectual property rights throughout the world, including:


(i) copyright, inventions, patents, trademarks, trade names, logos, service marks, designs, semi-conductor or circuit layout rights and other related rights, whether created before or after the date of the Agreement and whether or not registered or able to be registered; and
(ii) any licence, consent, application or right, to use or grant the use of, or apply for the registration of, any of the rights referred to in (i).
Network Boundary means the physical point where responsibility for the Service transfers from us to you as set out below unless stated otherwise in the Service Schedule:
(i) for a fixed phone (not VOIP) or data service (including ADSL, NBN, ethernet, broadband, internet) where there is no main distribution frame (MDF) (typically a single dwelling residence), the first telephone socket we nominate inside the premises (typically the socket closest to the lead-in cable);
(ii) for a fixed phone (not VOIP) or data service (including ADSL, NBN, Ethernet, broadband, internet) where there is a main distribution frame (MDF) (typically a business premises or a multi-storey building), the A side of the MDF where A side means the side facing externally towards the network;
(iii) for a fixed data service where there is a Network Termination Unit (NTU), the port of the NTU which is used to supply the Service (NBN service); and
(iv) for a VOIP phone service (where internet protocol is used to carry voice calls over a data service), the external carrier interconnect port on our core router at the edge of the network we or our suppliers use to supply the Service to you.


Order means your written order for the Service or any change to the Service, submitted to us as described in clause 3.


Our Equipment means equipment loaned or rented to you by us together with any cabling or other ancillary items provided with it. For clarity, it does not include equipment you purchase from us by instalment payments or otherwise.


Related Body Corporate has the meaning given that term in the Corporations Act 2001 (Cth).


Residential Service means a service described as 'residential' or as intended for personal, domestic or household use or similar in a Service Schedule.


Service means the service requested in the Order as described in the relevant Service Schedule and any related equipment, software, firmware and other goods and services we supply to you in connection with the Service.


Service Schedule means our document headed ‘Service Schedule’ (or if there is no such document but we have document(s) headed ‘Critical Information Summary’ and/or ‘Service Description’, then those documents) which describes the Service, sets out charges and any additional terms and conditions or other matters related to the Service.


Special Offer means a special offer or promotion which we may make in relation to the Service from time to time.


Standard Fee Table means our standard fee table available on our website.


Start Date means the earlier of the date when you first use the Service and the date on which the Service is first available for use as notified by us unless stated otherwise in the Service Schedule.


User means a person:


(i) who acquires under contract a product or service that relies on the Service as an input;
(ii) who is the ultimate recipient or user of the Service or a product or service of the kind described in (i) (excepting you);
(iii) to whom we supply the Service at your request;
(iv) to whom the Service is resupplied by you; or
(v) authorised by you to use or distribute the Service.


Walk Away Rights means the right to cancel the Service (even during a Fixed Contract Period) without incurring a Break Fee.


we, us, our means the company named on the front page of this document.


you, your means the customer whose name appears on the Order.


(b) In these Enterprise Terms, unless the context requires otherwise:


(i) headings are used for convenience only and do not affect the interpretation of the terms;
(ii) the singular includes the plural and vice versa;
(i) a reference to a person includes a reference to a person, corporation, firm or other legal entity;
(iii) “including” and similar expressions are not words of limitation;
(iv) a reference to a clause is a reference to a clause in the Enterprise Terms; and
(v) a reference to all or any part of a statute, regulation or code (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time.

 

Last update: 4 August 2017

 


 



Application of terms

The Broadband Service Terms and Conditions apply to supply of the MyNetFone broadband products and services to all our customers. If you are purchasing a broadband service, you need to read these terms and conditions as well as the General Terms and Conditions. 

 

STANDARD AGREEMENT

These Terms & Conditions of Broadband Service form part of an agreement ("Agreement") between My Net Fone Australia Pty Ltd, (’MyNetFone’, ‘we’, ‘us’, ‘our’) and each of its customers ("you", “your”, or "Customer"). MyNetFone General Terms and Conditions posted on the MyNetFone website form part of this Agreement and if you are a business customer, MyNetFone Business Service Terms & Conditions posted on the MyNetFone website also form part of this Agreement. Together these documents are called the ‘Agreement.’ This Agreement governs both the Service and any devices (customer premises equipment), such as a modem, an adaptor, or any other IP connection device, ("Device" or "Equipment") used in conjunction with this Service. By activating the Service, you acknowledge that you have read and understand, and you agree, to the terms and conditions of this Agreement, and you represent that you are of legal age to enter this Agreement and become bound by its terms.

General Broadband Service Availability & Provision

i)             We agree to supply you the Service only in geographical region covered by MyNetFone broadband service Wholesale suppliers on the conditions that there is network infrastructure and free capacity available and that there is a continuous copper pair available between the customer’s premises and the local exchange.

ii)             Your application of Service is subject to qualification check during the provisioning process. If we cannot provide the Service, you can cancel the Service order without penalty. See section on “Service Order Cancellation and Refund” below.

iii)             You acknowledge and accept that we are not obligated to accept your application for the Broadband Service, and we reserve the right at our sole discretion to accept or reject an application without disclosure of reasons.

iv)             If we accept your application, we will endeavour to provide the Service as soon as we can, but cannot guarantee availability and a date of commencement.

v)             We rely on you to provide the correct telephone number and address of the premises to which the Service is required. Any incorrect information provided by you may result in delay and/or incorrect installation and you are then liable for cancellation and/or relocation charges.

vi)             If we provide the Service, it will be delivered to the network boundary point of the customer premises. The network boundary typically is the first telephone socket in a single dwelling residential home or the main distribution frame, MDF in a business premises or multi storey building. You are responsible for any cabling work required beyond the network boundary in terms of installation, maintenance and repairs. For NBN FTTP, NBN Fixed Wireless, NBN HFC and FTTN (where a passive network termination device is applicable) services, the network boundary point is to the NBN network termination device.

vii)             You are fully responsible for contacting your existing service provider and make the necessary arrangements in terms of contractual commitments and/or break disconnection fees & charges etc for the existing telephone services, DSL services and NBN services, if applicable.

viii)             To apply for ADSL or ADSL2+ BroadbandService, you must be the holder of the current telephone service account. By completing the service application form, you have given us permission to install our Service on your telephone line and you warrant that this requirement has been met.

ix)             You may include MyNetFone broadband phone VoIP service as part of the Broadband Service. While we endeavour to provide the best possible service quality, the VoIP service is not a standard telephony service and should not be relied on for emergency 000 call communications. The VoIP service may be disrupted if there is a power failure at your premises. 

x)             If the balance of the account reaches zero or below, customers cannot use the VoIP and Broadband Services for making outgoing 000 emergency calls, to other MNF nor to normal telephony users until the account is restored above zero. The exception is when the customer is on post-paid service.  

Naked ADSL2+ Broadband

i)             This Service requires you to sacrifice your existing Telstra telephone number and line which must be active without any incompatible elements such as Complex Service or Incompatible Spectrum Shared Service when you submit your application to acquire broadband Service from us. Once we have converted your telephone line to our Service, you will permanently lose your Telstra telephone number and line as well as any services associated with it. These services may include Back to Base Alarms, EFTPOS, Dial-up services and Pay TV etc. MyNetFone will not able to return the Telstra number and line to you once the line has been sacrificed for naked ADSL2+ service.

ii)             After a customer has placed an on-line order via the MyNetFone website using the customer’s existing phone number, MyNetFone staff will call the customer to verify and confirm the order. The customer may cancel the order at this point and is entitled to a full refund.

iii)             This clause is not applicable for a new service using the customer’s address.

ADSL or ADSL2+ Broadband

i)             The Service requires you to provide your existing Telstra telephone number and line which must be active without any incompatible elements such as Complex Service or Incompatible Spectrum Shared Service when you submit your application to acquire the Service from us. Once we have installed our Service on your telephone line, you will keep your existing telephone number and line as well as any services associated with it. These may include Back to Base Alarms, EFTPOS, Dial-up services and Pay TV etc. You will still be liable for any telephone line charges from your existing telephone service provider

ii)             In order to keep our Service running, you must keep your telephone service and line active with your current telephone service provider. Terminating, or changing your existing telephone account or service with your provider will cause your ADSL or ADSL2+ service to be disconnected immediately. If the customer managed to re-connect their telephone service, MyNetFone may assist customer to reinstate the ADSL or ADSL2+ Service via MyNetFone’s wholesale supplier but we will not guarantee the outcome. Customer must notify MyNetFone within 2 business days to request for service reinstatement.

iii)             If the service cannot be reinstated for any reason, an early termination fee may apply and customer will have to pay for full service installation fee again to reconnect the service. Refer to specific service critical information summaries for termination fee amount.

iv)             ADSL customer may change ADSL speed between 256kbps/64kbps, 512kbps/128kbps, 1500kbps/286kbps and 8192kbps/384kbps in accordance to MyNetFone advertised ADSL plan. Customer must contact MyNetFone to modify the service speed and may take 3 business days to complete. Change Service Speed fee will apply.

NBN Broadband

i)             You are authorised to request the NBN service at the address and will be able to physically attend for installation if necessary. You will accept all liability and charges.

ii)             All our NBN services do not support battery backup and Priority Assistance and are not intended for end users who have medical and/or security alarms.  Where NBN Network Termination Device is provided as part of the Service, it will be connected to a standard Power Supply, i.e. no optional battery backup. This means your voice and data services will be temporarily unavailable for the duration of the power outage.

iii)             The installation of FTTB/N services will result in permanent disconnection of the current voiceband service (e.g. PSTN), non-voiceband service (e.g. DSL service) and existing ancillary services/devices relying on copper-line telecommunication at your premises. You will need to check with your device/service manufacturer or provider to see if the device is NBN compatible.

iv)             There may be a slight interruption to your new HFC service during the installation of your nbn™ supplied equipment, if you have existing pay TV or cable internet services.

 

Broadband Service Order Cancellation & Refund

i)             If you no longer wish to continue with the Service order, you must be the applicant of the order and notify MyNetFone within 3 business days, or before the end of the cooling off period if one applies, from the time you submit your order. An order cancellation fee will apply where cooling off period is not applicable.

ii)             If the customer cancels an order at the point after it has been submitted by MyNetFone to its wholesale provider, and it is due to be completed, the customer is required to pay for the installation and contract termination fees as well as the courier cost to return the equipment to MyNetFone office provided that the equipment has not been damaged or tampered with in any form. The customer is also required to pay a re-stocking fee of 20% to the value of the equipment.

iii)             If the service ordered is cancelled as a result of circumstances attributable to you before the service start date, you must pay MyNetFone all infrastructure and installation costs incurred by us in connection with preparation to supply the service to you.  

iv)             If MyNetFone’s wholesale supplier fails to provide the Service for whatever reasons after an order has been placed, the customer will pay for the courier cost to return the equipment to MyNetFone and is entitled to a full refund without paying any re-stocking fee.

v)             Other cancellation rights are set out in the General Terms and Conditions.

 Broadband Service Maintenance

i)        Before you report any service faults to MyNetfone, you must take all reasonable steps to ensure the faults are not caused by or attributed to MyNetFone. Customers may be liable for a Call Out charge if subsequent investigation by MyNetFone or its authorised wholesale supplier shows the faults lie beyond the Network Boundary Point (NBP) or the Main Distribution Frame (MDF).

ii)        You must provide all reasonable assistance to enable MyNetFone personnel or its supplier’s personnel, to investigate and, where applicable, repair faults. The assistance includes appropriate and timely access to customer’s premises up to the Network Boundary Point (NBP) or Main Distribution Frame (MDF), dependent on the premises type. You may be liable for a Call Out charge if such accesses were denied.

iii)        You agree to waive the application of the Customer Service Guarantee prescribed under the Telecommunications Act 1997.

Service Relocation

If you are on contract and move to another dwelling or location, you will pay a relocation fee and continues the contract if the Service is available at the new location. 

If there is no coverage at your new address, we will not be able to relocate your MyNetFone broadband service and will have to cancel it. You will be charged the early termination fee.

Service Installation

i)             We will notify you of the Service Activation via email address provided by you on the application form.

ii)             If MyNetFone or its supplier’s personnel are required to visit your premises to connect the service, you must provide appropriate and timely access to your Network Boundary Point (NBP) or Main Distribution Frame (MDF), dependent on the premises type. You may be liable to a Call Out charge if such accesses were denied.

iii)             You are responsible for all cabling and wiring within your premises. Where cabling does not exist or you have a fault with the wiring in your premises, you must arrange for your own service contractor to rectify this. MyNetFone or its supplier only deliver the service up to the Network Boundary Point (NBP) or Main Distribution Frame (MDF).

iv)             We do not provide hardware or software installation of the Broadband Service at your premises. You may either install yourself or request assistance from professionals to complete the installation. You are responsible for any installation costs incurred.

Equipment

We will provide the Service to you with the equipment supplied by us. You may subscribe the Service with your own equipment, (BYO). MyNetFone are under no obligation to provide the Service to you if you do not purchase the equipment from us. Even though you may be able to purchase the equipment on the open market, the equipment supplied by us have been optimised and configured to work with the MyNetFone Service to deliver the best possible quality. We will only provide technical support to the equipment supplied by us and are not responsible for the equipment purchased by you from third parties. 

Use of Service

i)          You must not use or permit any use of the Service:

1. To transmit any defamatory, abusive, menacing, threatening, harassing or illegal material or any unsolicited material of an offensive, obscene or indecent nature or otherwise contrary to law or any applicable code of conduct;
2. In any manner which constitutes a violation or infringement of any duty or obligation on contract or tort or otherwise, to any third party; or
3. In, or in relation to, the commission of an offence against any applicable law.

ii)         You must not use the service to create, use or distribute tools designed for compromising the security of MyNetFone’s network or any communications over that network.

iii)        You are responsible for all usage charges in respect of the use of the Services whether or not such usage was authorized by you because it is your responsibility to maintain the security of the means of access to the services and ensure unauthorized use does not occur. Information about security tools is available on the MyNetFone website.

Service Speed

i)              The service speed is dependent on numerous factors, including the length, gauge and quality of the local wire that connects your premises to the exchange. As we have no control over these external factors, we do not guarantee to customers that you will be able to obtain the maximum theoretical speed. 

ii)             For ADSL2+and naked ADSL, a speed of 1.5Mb/s is considered as an acceptable standard and no investigation will be undertaken by MyNetFone if the speed of the service reaches or exceeds 1.5Mb/s 

iii)            Due to the complexity of issues involved, MyNetFone requires up to 30 working days to investigate customer’s complaint that the speed of ADSL2+ or naked DSL service is less than 1.5Mb/s. During the investigation period, My Net Fone will not change the customer’s service status, e.g. suspension until the investigation has been completed and the results are known.  

iv)            NBN speed tiers indicate a denoted maximum port speed provided by NBN Co. The actual speed you can achieve could vary due to a number of factors, such as equipment used at your premises; the nature, quality and length of the connection to, and signal reception (including any interference within building cabling or prevailing radio conditions) at or affecting the relevant premises; the number of simultaneous end users using the network; the source and type of content being downloaded by the end-user; the distance from the node; the quality of the copper network and etc. Therefore, MyNetFone does NOT guarantee you can get the denoted maximum port speed at your premises.

Data Usage Allowance

Each MyNetFone Service Plan provides a maximum data usage that can be used during a billing month. At the start of each billing month, the data allowance is set to zero and all traffic is counted towards the monthly usage allowances which are split between peak and off peak periods. The timing of the peak and off peak periods is specified in each Service Plan. Any unused data allowances for any given billing month cannot be rolled over for use in subsequent billing months.

Shaping

Once the data allowances have been used up for the billing month, if you subscribe to a residential plan, your broadband service will be shaped for both upstream and downstream traffic and will remain shaped until the commencement of the next billing period. If you subscribe to a business plan, the excess data will be charged in accordance with MyNetFone pricing schedule or specific service critical information summaries

Service Charges & Billing

i)          You must pay the Service Charges as selected by you in the Service application form submitted by you. The relevant fees and charges are specified in the MyNetFone Pricing Schedule or specific service critical information summaries

ii)         The Service Charge will start from the time the device is despatched by us to you;

iii)        We will bill you for the charges of the Service in accordance with the billing cycle specified in the Pricing Schedule;

iv)        We will send an invoice to you electronically to the email address nominated by you. We do not provide paper copy invoice.

v)         If you have disputes with some charges, you must pay the undisputed amounts of the invoice on the due date.

 

Last update: 28 March 2017 


 

 

Application of terms

The Number Porting Terms and Conditions apply to supply of the MyNetFone number porting services to all our customers. If you are ordering a number port, you need to read these terms and conditions as well as the General Terms and Conditions. 

 

Number porting is usually free

Number porting, carried out in usual business hours, is free if successful. 

 

Special fees and charges are set out in the Price Book

In the rare event that a port fails, the customer will be charged a rejection fee. The customer will also be charged if they choose to cancel or reverse the port, if they choose to have numbers ported ouside of normal hours, or where the number needs to be ported from a third-party service provider, or where the customer requests an emergency return. 

 

Number hosting charged separately

Number hosting fees will apply if a customer chooses to keep more numbers than are allowed for in their voice or fax plan inclusion.

 

Emergency Calling

MyNetFone numbers are delivered via VoIP. This relies on an active, stable internet connection and an active power socket. Where the internet connection is unstable or power is unreliable, customers may experience outages or service disruption. Therefore, MyNetFone cannot guarentee faultless emergency call services.

Calls to Emergency Services ‘000’ may not work at all times. For example, a (VoIP) call cannot be made when the mains power is out or when the Internet is down. Emergency service operators are also unable to identify your physical location so you will need to inform them.

This limitation is easy to overcome! We recommend that you keep a mobile available for calling emergency services in the rare case of power outage or internet unavailability.

 

General Porting Terms & Conditions

  • Porting can only take place once the Business Number Porting Form has been submitted. It should be completed by a person who is the authorised representative for your MyNetFone account. The porting request is valid for 90 days after the signatory date.
  • It is your responsibility to ensure that all information provided on the number porting application matches the information held by your current service provider. Your current service provider may reject the port request if the information you provide is incorrect or does not match the data held by them.
  • If the port is a standalone (Cat A) number, it is your responsibility to ensure that no dependant services (ADSL, Fax/Duet etc) are using the phone line associated with the number to be ported. The presence of these services will cause the port to fail. 
  • Only your telephone number will be ported to MyNetFone. Porting may result in the loss of any dependant services using the phone line associated with the number to be ported.
  • MyNetFone provides no guarantee that we can port your telephone number from your current Service Provider. A porting request may be rejected for any of the reasons states in the Local Number Portability Code (C540), which is available on the ACMA website.
  • You are responsible for settling your financial account with your current Service Provider if you owe them outstanding contractual obligations and costs. MyNetFone is not liable for any such costs.
  • You must not deactivate your existing service when porting. Telephone numbers can only be ported while active.
  • You must not make any changes to your existing service once the porting request is submitted. 
  • You can only cancel your porting request up to 24 hours before the Electronic Cutover Advice is sent to your current Service Provider, which will be on or after the cutover date (MyNetFone will advise you of thise date).
  • In the event of a port, withdrawal or reversal, MyNetFone is not responsible for any period of outage of the service or features of your current service or any value-added service provided by your current Service Provider.
  • MyNetFone provides no guarantee that the telephone number will be ported within any specified timeframe.
  • If you wish to port your telephone number from MyNetFone to another Service Provider, then you must contact the other provider.

Last updated: March 17, 2016


 

 

Application of terms

The Premium Conferencing Terms and Conditions apply to supply of the MyNetFone Premium conferencing services to all our customers. If you are ordering conferencing service, you need to read these terms and conditions as well as the General Terms and Conditions. 

 

Charges

Customers who use the system agree to pay the conference per minute per participant service rate "charges" as advertised on the MyNetFone web site.

  • The charges may vary based on the access number used to dial into the conference. Customers agree to pay the charges for each caller into the conference and according to the respective access number used. 
  • The charges will be rounded to the next whole minute. Customers are charged for each caller from the minute each caller joins to the conference to the minute each caller leaves the conference - regardless of whether the conference is proceeding or whether the convenor of the conference is present.


PIN Numbers

MyNetFone will allocate a set of PIN numbers to each customer and it is the customer's responsibility to look after and distribute those PIN numbers. MyNetFone will not be liable for any misuse of a customer's conferencing PIN numbers. 

Last updated: 24 October, 2017


 

 

Application of terms

The International Toll Free Service (ITFS) Terms and Conditions apply to supply of the MyNetFone ITFS to all our customers. If you are ordering an ITFS service, you need to read these terms and conditions as well as the General Terms and Conditions.

 

Access Restrictions

In each country, there are various restrictions on access to ITFS numbers. For further information, please read our access restrictions document.

 

Trunk Utilization

The Customer is responsible for managing the channel/capacity of the Trunks to deliver an acceptable grade of service to Users for transiting calls via the Service.


Caller Line Identification (CLI)

The Customer acknowledges and agrees that:

  • If the User does not bar CLI in respect of calls transiting by the Service, when a call is made using the Service, the relevant telephone number may be sent automatically to the equipment of the called party;
  • If a party calling a MyNetFone Hosted Number has not barred their CLI from calls made from their equipment, the telephone number of the calling party may be displayed on the screen of the handset which receives the call, if the handset is technically capable of displaying CLI; and
  • Where a party calling a MyNetFone Hosted Number has chosen to bar CLI then, if the Customer requests, MyNetFone will pass the CLI of the calling party to the Customer via the Service, and the Customer must comply with its obligations under the Telecommunications Act 1997 (Cth) to bar the CLI prior to terminating the call to the User.

The Customer agrees to indemnify MyNetFone for any and all loss, cost, damage, expense or liability that arises from failure by the Customer to comply with the requirements of this clause.


Disclaimer

The Customer acknowledges that:

  • The MyNetFone Network is not necessarily a secure and confidential method of communication and the Customer transmits material on the MyNetFone Network at the Customer’s own risk;
  • MyNetFone does not and is not able in any way to supervise, edit or control the nature, content and form of any material available to be accessed through use of the Services and that MyNetFone is not responsible in any way for the nature, content and form of that material, access to that material or use of that material;
  • MyNetFone will not be responsible for ensuring that any material sent or received by means of the Services is sent or received correctly; and to the full extent the law permits, MyNetFone makes no representation or warranty as to the effectiveness or fitness for purpose of any access restrictions, their network security or the Customer’s network security. The Customer must make no claim against MyNetFone concerning any access restrictions, MyNetFone’s Network security or the Customer’s network security.

 



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