1.1 What are the terms that apply to your Service?
Under telecommunications laws, we can set out our standard service terms in a “Standard Form of Agreement”. This is our “Standard Form of Agreement” and pursuant to section 479 of the Telecommunications Act 1979 applies to any telecommunications service you apply for or obtain from us. You and we must comply with our Standard Form of Agreement unless you and we have agreed differently.
There are also other terms that apply to your service and which are incorporated into and form part of our Standard Form of Agreement. These are described below.
Nothing in our Standard Form of Agreement is intended to vary or override the terms and conditions on which we supply your gas or electricity energy services to you. Your energy service terms and conditions will continue to operate separately for the duration of your telecommunications service.
1.2 Terms applying to your Service
The terms applying to your Service with us comprise:
- Your Application;
- The Service Descriptions;
- These General Terms;
- The Pricing Schedule;
- The Telecommunications Direct Debit Terms;
- Our Acceptable Use Policy;
1.3 Order of Precedence
Unless expressly stated otherwise, the order of precedence between the various terms will be resolved in favour of the document appearing earlier in the list stated in clause 1.2 above, except where otherwise expressly stated.
1.4 Customer Assistance
If you require any assistance or further information, please contact our customer information line on 1800 448 305. If you have a hearing or speech impairment you may wish to contact the National Relay Service (NRS) on 133 677 from anywhere in Australia. For language assistance, contact the Translating & Interpreting Service (TIS) on 131 450 from anywhere in Australia.
2 Definitions and Interpretations
The following definitions apply unless the context requires otherwise:
Acceptable Use Policy means our policy which applies to your use of the Service, a copy of which is accessible here;
ACMA means the Australian Communications and Media Authority (www.acma.gov.au);
Application means an application made by you for the provision of Services by us, made by way of an online form approved by us;
Approved Purposes means:
- providing operator services or operator assistance services;
- publishing and maintaining public number directories;
- providing location dependent carriage services;
- the operation of emergency call services or assisting emergency services under Part 8 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;
- assisting enforcement agencies or safeguarding national security under the Telecommunications Act, the Telecommunications (Interception and Access) Act 1979 or any other applicable legal requirement;
- verifying the accuracy of information provided by the data provider and held in the Integrated Public Number Database (IPND) against the information the data provider holds;
- undertaking research of a kind specified in the Telecommunications IPND – Permitted Research Purposes Instrument 2007;
- assisting the ACMA, or its nominee, to verify the accuracy and completeness of information held in the IPND;
- meeting our obligations to any Government Agency (for example, the Australian Tax Office) or other law enforcement bodies; and
- any other purposes where permitted by the Telecommunications Act and any other applicable laws;
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth);
Business Hours means 9am to 5pm Monday to Friday (AEST), excluding days which are public holidays in the place where the Services are to be provided;
Claim includes any debt, cause of action, liability, claim, proceeding, suit or demand of any nature however arising under or in connection with your Service or its subject matter and whether present or future, fixed or unascertained, actual or contingent, arising under contract (including under any indemnity), tort (including negligence), under statute or otherwise;
Commercial Credit has the meaning given in section 6 of the Privacy Act;
Consequential Loss means loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any increased operating costs suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute, any other form of consequential, special, indirect, punitive or exemplary loss or damages and any third party loss;
Consumer Guarantee means a guarantee referred to in clause 12.4, as more fully described in the Australian Consumer Law;
Credit Reporting Agency has the meaning given in section 6 of the Privacy Act 1988 (Cth);
CSG has the meaning given in clause 12.4;
Customer Equipment means any equipment or facility in your ownership;
Due Date unless otherwise agreed, means the date specified on an invoice as the due date;
Early Termination Fee means the fee payable (if any) in accordance with clause 4.12, calculated in accordance with your Application, and the Pricing Schedule;
Equipment unless otherwise specified, means Purchased Equipment;
Facility or Facilities has the meaning given in the Telecommunications Act;
Fee(s) means a fee payable for a Service as set out in the Pricing Schedule in accordance with the Terms;
Fixed Term has the meaning given in clause 3.6;
Force Majeure Event means an event that is beyond our reasonable control, including acts of God or natural disasters, fire, lightning, explosions, flood, subsidence, insurrection, civil disorder or military operations, war, terrorism, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, strikes, lockouts or other industrial disputes of any kind, or an act or omission of any Government Agency or an act or omission of any third party (including any Third Party Supplier) where the act or omission is caused by an event or circumstance outside that third party’s reasonable control (including any of the things mentioned in this definition);
Government Agency means any Commonwealth, State or local or foreign government, government authority or semi-government authority (including a judicial body) that has legal power to require another person to act or not act in a particular way or to authorise a particular act, including a minister responsible for administering Part XIB or XIC of the Competition and Consumer Act 2010 (Cth), the Telecommunications Act, the ACMA or the Australian Competition and Consumer Commission;
GST has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Interest means interest at the rate prescribed by the Penalty Interest Rates Act 1983 (Vic) plus 2% calculated daily and compounded monthly;
Internet means the world-wide connection of computer networks which provides a number of services to users, including the transmission of electronic mail, provision of information on the world wide web and transfer of files;
Interruption means a delay in supplying, a failure to supply or an error or defect in the supply of, a Service;
Law means Commonwealth, State, or local legislation, judicial, administrative, or regulatory decrees, judgments, awards or orders, binding industry codes and all common laws and equity;
Our Network means the infrastructure used and/or maintained by us or our Third Party Suppliers to provide you with your Service. Our Network does not include the computer networks that make up the Internet;
Personal Information means any information or document referred to in section 276(1) of the Telecommunications Act and any personal information within the meaning given in section 6 of the Privacy Act;
Privacy Act means the Privacy Act 1988 (Cth);
Purchased Equipment has the meaning given in clause 10;
Service means the service requested by you in your Application and as described in it and any other documents forming the Terms, including any related goods and ancillary services provided to you by us in connection with that service;
Service Description means the document forming part of the Terms describing the Service and setting out specific terms and conditions for that Service;
Service Equipment has the meaning given in clause 9;
Taxable Supply has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Telecommunications Act means the Telecommunications Act 1997 (Cth);
Telecommunications Direct Debit Terms means the terms and conditions under which we are authorised to debit funds from your bank (or other financial institution) account, a copy of which is accessible in your MyAccount page;
Terms means these terms on which we will supply the Service you;
Third Party Supplier means a third party supplier from whom we acquire wholesale services that form all or part of the Service we provide to you;
We, our or us means EnergyAustralia Pty Ltd. ABN 99 086 014 968
you or your means the current account holder for the Service.
In the Terms unless the contrary intention appears:
- a reference to a person includes a reference to a corporation, an association, joint venture, an unincorporated body, partnership, government or local authority or agency or other entity;
- a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
- the singular includes the plural and vice versa;
- a reference to any gender includes a reference to all other genders;
- a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;
- where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;
- an agreement, representation or warranty made in favour of two or more persons is made for the benefit of them jointly and for each of them severally;
- a reference to a recital, clause, paragraph, schedule or annexure is to a recital, clause or paragraph of, or schedule or annexure to, these General Terms, and a reference to these General Terms includes any schedule or annexure;
- a reference to dollars and $ is to Australian currency;
- headings are inserted for convenience only and do not affect the interpretation of the Terms; and
- specifying anything in the Terms after the words ‘including’, ‘includes’ or ‘for example’ or similar expressions does not limit what else is included unless there is express wording to the contrary.
3 Provision of the Service
3.1 Service Availability
Subject to your rights under the Australian Consumer Law, we aim to provide, but cannot guarantee, a continuous Service free of any Interruptions. You are aware that we may be reliant on Third Party Suppliers for supplying the Service to you and that circumstances beyond our control may cause Interruptions to the Service from time to time. Our liability to you for any Interruption to a Service is limited in accordance with clause 12.
- Depending on the nature of your circumstances, the installation process can take up to 21 business days to be completed.
- We will provide email or SMS updates to you as to the progress of the installation process.
- If hardware installation is required at your premises, you or an authorised adult may need to be present at your service location address.
3.3 Maintenance and Fault Restoration
Subject to your rights under the Australian Consumer Law and to the maximum extent permitted by law, we are not obliged to restore any fault with a Service that is caused as a result of:
- damage due to causes external to the facilities used by us and/or our Third Party Suppliers to provide the Service;
- a Force Majeure Event; or
- planned outages.
3.4 Technical Support
We will provide technical support services in accordance with the Terms. We are not responsible for, and will not provide support for, any fault caused by:
- the interaction of the Service with third party software packages used by you;
- the inability to gain wireless connectivity from your wireless access point/router to your computer; or
- services provided by any Third Party Supplier or carrier (other than our Third Party Suppliers).
Your Service will commence when we accept (at our sole discretion) your Application and continues until terminated in accordance with the Terms.
When you request us to supply the Service to you, using our online Application form, we decide whether to accept your Application and to supply the
Service to you based on a variety of factors including:
- your eligibility for the Service;
- its availability to you; and
- your prior conduct or history with respect to any previous supply by us or a reseller of any goods or service to you.
These General Terms do not apply to the extent that they are varied in writing between the parties. In particular, the Application which you completed in order to receive the Service and the Service Description relating to your required service may provide different terms. For example, you may be required to receive the Service from us for a minimum or fixed term that is greater than a month to month period (Fixed Term). In such cases, your Application and any applicable Service Description will state the specific details of the term that applies.
3.7 Third Party Suppliers
We may use Third Party Suppliers for the provision of the Service to you. You will not contact any of our Third Party Suppliers for any reason in relation to the Service. You acknowledge that if you do contact one of our Third Party Suppliers, you will be liable for all costs imposed on us by our Third Party Supplier in connection with you having contacted that Third Party Supplier directly.
3.8 Changing the terms of your Service
- During the term of your Service, we may need to change the terms of your Service due to circumstances beyond our control, including changes in Law, urgent changes required for security reasons, changes by one of our Third Party Suppliers of the terms on which they supply services to us or to the functionality or nature of a Service or its underlying technology. We may not always be able to provide you with ongoing supply of a Service on the same terms and conditions that existed when we first commenced providing that Service to you.
- In addition to changes which we are required to make due to circumstances beyond our control, we may elect to make changes for our own purposes during the term of your Service. Any changes we elect to make will take effect for your Service in accordance with clauses 3.9 and 3.10 below.
You acknowledge that:
- in accordance with paragraphs a and b, from time to time the nature of the Service and the Terms on which we supply the Service to you may change; and
- if we elect to change those Terms we will give you notice in accordance with clauses 3.9 and 3.10 below.
3.9 Your Rights if we change the terms of your Service
- Subject to the exceptions permitted by clause 3.10:
- we will give you notice of any changes we propose to make to your Service, including these Telecommunications General Terms, at least 21 days prior to the date on which those changes are to take effect; and
- if the changes we propose to make will cause more than a minor detriment to you then you may immediately cancel the affected Service without incurring any Early Termination Fee or penalty (provided that we can recover any outstanding Fees incurred up to the date on which your Service ends and any outstanding amounts that cover installation costs or equipment where such equipment can be used in connection with services provided by other suppliers), by giving us notice in writing to that effect within 42 days of the date of the notice referred to in paragraph i above.
- If the date on which you give notice to us to cancel your Service in accordance with paragraph ii occurs after the date of the change to the Terms, the change will not apply to you. We will issue a corrected invoice or adjustment note as appropriate and, if you have overpaid as a result of the change to the Terms, credit your account with the overpaid amount or, if you have cancelled your Service with us, refund the overpaid amount promptly after deduction of any other amounts due by you to us. Upon cancellation of the Service due to a change to the Terms that has more than a minor detrimental impact on you, the charge for costs of equipment that we have provided to you and that you have not paid for will be owed by you as a lump sum and payable by the relevant due date.
- If you do not give notice to us within the 42 day period referred to in paragraph ii, you are deemed to have accepted our changes from the date those changes are to take effect and that the Terms of your Service, as amended by those changes, will govern the relationship between you and us from that date.
Our obligation to give you 21 days’ notice of our proposed changes and to afford you a right to terminate your Service in accordance with clause 3.9 will not apply in relation to:
- urgent changes we are required to make by Law, for security reasons or technical reasons necessary to protect the integrity of Our Network;
- the introduction of a new Fee or an increase in an existing Fee due to an additional tax or levy imposed by Law (where it is fair and reasonable for us to pass that on to you);
- the introduction of a new Fee or an increase in existing administrative Fees for ancillary services such as credit card transaction fees (provided we have offered you a reasonable alternative at the same or lesser cost to the original Fee); and
- increases in Fees due to increases imposed on us by other suppliers (including Third Party Suppliers) for the following types of services and charges:
- international carriage services (including for voice and data) the current Fees for which are available in the Pricing Schedule; and
- content and premium services (including 1900 prefix services) which we resell to you from a third party, including where we collect fees from you on behalf of that third party.
We will give you reasonable notice of the changes referred to in this clause 3.10 in accordance with the notice provisions of clause 15.1.
4 Fees for the Service
- You are liable to pay all Fees arising out of the use of the Service that we provide to you, whether that use was by you or any other person with or without your consent.
- If a Service is used to access the facilities or services of another supplier, amounts charged by that other supplier are, unless the Terms specify otherwise, your responsibility, and you will indemnify us in relation to any such charges. If we are charged those amounts we may include them in the Fees.
Unless expressly stated otherwise, all amounts payable by you under or in connection with your Service are inclusive of GST. If GST is payable on a Taxable Supply made to you, the amount payable by you for that Taxable Supply will be the amount expressed in the Terms.
- Invoices and bills will be issued by email and to your MyAccount page.
- Your monthly plan billing cycle will commence on the date that your connection becomes active.
- If your connection was activated on the 29th, 30th or 31st of a calendar month, your monthly plan billing cycle will be shifted to the 1st of the following month (or the first business day should the 1st fall on a weekend). Your second invoice will contain the unpaid portion of the prior month calculated on a pro-rata basis from the day the service was activated until the first day of the following month.
- Your credit card will be debited on the Due Date as indicated on your invoice.
- Recurring monthly Plan Fees are billed in advance and any applicable usage or excess usage charges are billed in arrears; these additional call and data charges can take up to 21 days to be reflected on your invoice.
- Any applicable hardware will be billed on your first invoice, and non-standard connection Fees will be billed on your second invoice.
- We may vary invoice frequency upon giving you reasonable notice. All portions of your use of the Service are charged for and unused allocations are not transferable or refundable. We reserve the right to reissue an invoice if any error in the amount shown as owing on the invoice is subsequently discovered.
- We may issue an interim bill in the following circumstances:
- you change your existing plan;
- you request a new Service to be connected;
- you relocate an existing Service;
- you request to be invoiced for any ‘unbilled’ charges;
- we have reasonable grounds to believe that you may be a credit risk; or
- as otherwise agreed with you.
- We will refund or credit any overpaid amount due to a variation in the Fees or cancellation of a Service. If we have undercharged you, you will be liable for any underpayment.
4.4 Calculation of Fees
Fees are calculated by reference to data recorded or logged by us. We are required to ensure that our bills are accurate and verifiable. Records held by us will be conclusive evidence of the usage of your Service and charges payable by you unless they are shown to be incorrect.
4.5 Spend Management
Usage charges, plan details and other personal information are available to view in your MyAccount page.
4.6 Bundled Offer
- You must remain connected to an EnergyAustralia gas and/or electricity energy service to receive any applicable bundled offer discount of $10 per month for your EnergyAustralia NBN or NBN+Voice service.
- If you cancel both your EnergyAustralia gas and electricity services, we may remove any bundled offer discount applied to your remaining EnergyAustralia NBN or NBN+Voice service.
4.7 Time for Payment
All Fees must be paid in full by the Due Date. We reserve the right to charge Interest on any unpaid amount from the Due Date until the date of payment in full.
4.8 Methods of Payment
Payment for your Service must be made by credit card direct debit.
4.9 Suspension for Non-Payment
We reserve the right to:
- physically disconnect your Service if Fees or any other amount payable by you remains unpaid 45 days after the applicable Due Date (unless we have received written notice from you of a legitimate dispute of those Fees or other amount prior to the Due Date and that dispute remains unresolved); and
- suspend the Service if you fail to pay the outstanding amount in full within 7 days after we give you a notice demanding payment of the Fees, which, for the avoidance of doubt, will include any administrative fees.
4.10 Dishonoured Direct Debit Transaction or Credit Card Authorisation
In addition to any other rights that we have under the Terms in relation to late payment, if an invoice is paid by direct debit credit card authorisation and the payment is declined by the bank, we reserve the right to pass any bank fee that we incur as a result of the declined or dishonoured transaction on to you.
4.11 Debt Recovery Services
We may use debt recovery services to recover any outstanding Fees (including any administrative fees). You may be liable for any charges and collection costs, such as legal costs.
4.12 Early Termination Fee
You may cancel the Service at any time in accordance with clause 11.1, however, if you do so (other than due to our fault) you may be liable to pay the Early Termination Fee set out in the Pricing Schedule.
4.13 Refunds and Credits
- Any connection fee for a non-standard installation is non-refundable unless we are unable to provision the service you have requested us to provide. This does not limit any rights you may have to a refund under an applicable Consumer Guarantee.
- If your account for the Service is terminated and monies are owed to you by us (for example, for the unexpired portion of any Fee paid in advance by you), you acknowledge that we may deduct any outstanding Fees on final settlement of your account and state on your final invoice (as applicable) the amount credited to you or the amount you must pay to us.
- You may elect to claim a refund for any amount credited on your final invoice or apply the credited amount to another service we may supply to you by notifying us within 90 days of your receipt of the final invoice.
4.14 Disputed Invoices
- If you become aware of an error in your invoice or Fees you have paid, you can dispute an invoice or claim a refund for overpayment of any Fees under the Terms. We recommend that you do so within 5 months of the date of the invoice to which the disputed amount or alleged overpayment relates. It may be more difficult for us to process disputes or claims after this period.
- The process for disputing an invoice is set out in the Complaints Handling Policy.
- The disputed amount remains payable on the Due Date pending the resolution of the dispute, at which time any applicable refund or credit will be issued.
- Nothing in this clause 4.14 limits your right to issue proceedings in relation to a disputed invoice or alleged overpayment.
4.15 Cancellation, Suspension or Disconnection for non-payment
If we cancel, suspend or disconnect the Service for non-payment, you remain liable for:
- all Fees and other liabilities incurred before the date of cancellation, suspension or disconnection of the relevant Service;
- the payment of accruing monthly fees despite the suspension of the Service; and
- in circumstances where the Service has been cancelled or disconnected, any applicable Early Termination Fee set out in the Pricing Schedule.
4.16 Set Off
Unless otherwise varied by us in writing, you must pay the Fees without any set off, counterclaim or deduction.
5 TRANSFER OF YOUR SERVICE FROM US TO ANOTHER SUPPLIER
If you ask us to transfer any of the Services to another supplier, you remain liable to us for any amount payable in relation to the supply of the Services up to the date on which we transfer those Services to another supplier. You will pay us that amount by the applicable Due Date.
5.2 Termination of Services on Transfer
The provision of your Service will cease on the date on which we transfer your Services to another supplier.
We will endeavour to invoice you for Fees incurred in relation to Services that you transfer to another supplier within the next normal billing period. If, after that time, we become aware of other Fees or amounts (including fees payable to any other supplier) for those Services up to the date of transfer, or we resolve any dispute so that any liability relating to those Services is quantified and payable by you, then you will pay us all such amounts within 7 days of your receipt of our invoice for them.
We will not accept liability for any amounts owing by you to a supplier or other person. You must indemnify us against any Claim made by a supplier or other person against us in relation to any such amounts.
6 PERSONAL INFORMATION
6.1 Consent to Collection and Use
You consent to us obtaining, using and disclosing your Personal Information for any Approved Purpose including the purposes specified in this clause 6. If you choose not to provide all or part of the Personal Information we request, we may not be able to provide you with the Services, or we may refuse to provide or limit the provision to you of any Service or credit.
6.2 Use of Personal Information
- We are required by Law to provide your name, address, telephone service number and other public number customer details to the manager of the Integrated Public Number Database (IPND) for the Approved Purposes.
- Unlisted service information is marked and controlled by the manager of the IPND to ensure that it is only used for the relevant Approved Purposes (unlisted numbers or suppressed address listings recorded in the IPND are not available to the general public via public number directories or directory assistance services). You must notify us of any change to your IPND data and you may request changes to the listing status of your Service by contacting us on 1300 448 305.
7 YOUR OBLIGATIONS
- You are responsible for the use of your Service and you will not use your Service other than in accordance with the Terms and Laws and obligations applicable to the Services and their use.
- You must comply with any reasonable direction given by us in relation to the Service.
7.2 Responsibility for persons who you allow to use your Service
You must ensure that any person you allow to use your Service complies with the Terms as if they were you.
- In providing the Services to you, you acknowledge that we, or a Third Party Supplier, may take any steps deemed necessary in order to comply with the Law, industry codes of practice or under direction from a relevant regulatory authority, Government Agency or court order, including:
- intercepting communications made using a Service; and
- monitoring data accessed or transmitted by you while using the Service.
- You must not do or allow to be done, in relation to a Service, any of the following:
- engage in denial-of-service attacks, or allow a computer under your authority to be used as part of one;
- obtain or attempt to obtain unauthorised access to or control of any other computer or network;
- scan ports on other computers or otherwise probe them for means of access or vulnerabilities;
- spread (either deliberately or through want of reasonable care) any virus, Trojan horse or other harmful action;
- breach any Law regulating content on the Internet or email;
- contravene the Privacy Act, the National Privacy Principles, or any guidelines made under them; or
- send spam.
- If we or a Third Party Supplier provide you with any software, you will only use it in accordance with its licence terms as notified to you from time to time.
- Except to the extent that we have specifically agreed otherwise, the Service that is supplied to you is for domestic and personal use only and you will not resell the Service, nor to establish, maintain or permit multiple concurrent connections to the Service, nor to connect the Service to a local area network, except if the Service is designated by us as one which supports use of a local area network.
- Except to the extent that we have specifically agreed otherwise, you are solely responsible at your own expense for providing and maintaining the modem and all other Customer Equipment and Equipment necessary for that purpose.
- To the extent permitted by Law, you acknowledge that:
- continuity and speed of access to the Internet depend on a wide range of factors, many of which are beyond our control;
- we have no control over the accuracy or appropriateness of any information on the Internet;
- we are not responsible for any software or data available on the Internet;
- if we provide to you technical or other support or advice in relation to any matter which is outside our direct responsibility under the Terms, we do so only in an attempt to assist you and without incurring any liability other than any which cannot Lawfully be excluded.
7.4 Internet Security
You acknowledge and accept that any access to the Internet involves security risks and that new threats to Internet security are continually evolving. You accept responsibility for maintaining your own security and acknowledge that we have recommended that you should at least:
- maintain and protect your user identity, email address and password (keeping the password secure, including not disclosing it, avoiding the use of dictionary words, names or dates, changing it regularly, not keeping it in writing or storing it on a computer);
- not disclose Personal Information (including credit card details) on the Internet;
- use and keep current anti-virus software and firewall;
- restrict access to Equipment;
- not accept emails or files from unknown sources;
- protect users from unsuitable Internet content;
- keep up to date on Internet security issues; and
- be aware that premium rate ’190’ and international ’0011’ telephone call fees can be incurred inadvertently by users accessing certain Internet sites and while using dialup services.
You warrant that the information supplied by you in relation to your Service is true and correct. You will promptly inform us of any changes to this information.
For the duration of your Service, you will provide us free of charge with all assistance, information, access, facilities and services reasonably required by us to enable us to perform our obligations under the Terms, including use of Customer Equipment (including PABX and key system equipment) and any other telecommunications facilities which you own or control, if required.
8 USE OF SERVICES
If inadequate capacity in the Customer Equipment or Equipment or your use of the Service interferes, or in our opinion threatens to interfere, with the efficiency of any network used in the supply of the Services, you must follow our directions or the directions of the relevant network operator on how to end or avoid that interference.
8.2 Use of Services
- ensure the Services are used solely for their intended purpose;
- notify us immediately of any security breach (suspected or otherwise) regarding the Service or your confidential password or customer login; and
- not permit any other person to resell or purport to resell any Service.
8.3 Technical Regulation
You must not connect or maintain a connection to a facility used in connection with the supply of Services to you or other parties that does not comply with technical codes, standards or regulations made under the Telecommunications Act, any declaration or other requirement of the ACMA or any code, standard or guideline published by the Australian Communications Alliance Ltd.
8.4 Illegal Use
You must not use or allow another person to use a Service to transmit or publish any material that is defamatory towards any person, or in breach of copyright, any obligations of confidentiality or otherwise in breach of any Law. If you breach this clause, we may suspend or cancel the Service in accordance with clause 12.3 e. You indemnify us against and must reimburse us for any Claim that we suffer as a result of your Service being used to commit an offence or otherwise breach this clause 8.4.
9 EQUIPMENT WE SUPPLY TO YOU
If we, or our Third Party Supplier, provides a facility or any item of equipment (Service Equipment) to you either for use in the provision of the Services (but we do not sell that Service Equipment to you):
- risk in the Service Equipment passes to you on delivery;
- that Service Equipment always remains our property unless, in our sole discretion, we deem that title has passed to you;
- you will allow us to and, where applicable, will ensure that the landlord allows us to, remove the Service Equipment from the premises where it is installed upon expiry or termination of the supply of the Services;
- you will not part with possession of the Service Equipment except to us;
- if we are unable to recover the Service Equipment, we may recover the value of it as a debt due by you, including offsetting the value of the ServiceEquipment against any monies owed to you by us;
- you indemnify us against and must reimburse us for any loss or damage to the Service Equipment, unless that loss or damage arises from fair wear and tear; and
- you must:
- not remove or obscure any identification marks on the Service Equipment;
- comply with our reasonable instructions to protect our ownership of the Service Equipment; and
- not do anything which might detrimentally affect our ownership of the Service Equipment.
9.2 Changes to Service Equipment
We may, in our sole discretion and at any time, replace any of our Service Equipment. If we have agreed to provide a Service to you for a Fixed Term, replacement of Service Equipment will be subject to our obligations under clauses 9.7.
- You will allow us access to the Service Equipment during Business Hours (or at such other times as we arrange with you), and this right of access will not end until all Service Equipment is returned to us, even if the Services have been cancelled.
- We (or a Third Party Supplier) may need access to your premises from time to time in connection with the provision and maintenance of the Service Equipment or a Service. If you do not provide such access as we, or a relevant Third Party Supplier, reasonably require, we may limit, suspend, cancel or disconnect your Service.
- If you want us to provide a Service and that Service requires the installation of any facility, equipment or cabling on your premises whether by us or a Third Party Supplier, you must allow us or any relevant Third Party Supplier to:
- have access to your premises to install the facility, equipment or cabling; and
- install the facility, equipment or cabling on your premises.
- If you do not own the premises referred to in paragraph c, you must have the owner’s permission and you warrant to us that you do have that permission.
- If we need access to your premises you must provide us with safe access and indemnify us against and must reimburse us for any Claim by the owner or occupier of the premises in relation to our entry onto the premises.
9.4 Maintenance of Service Equipment
We may suspend Services for a reasonable period of time to perform maintenance on the Service Equipment, provided that in each case, we will use our reasonable endeavours to:
- give you reasonable notice (bearing in mind the urgency and nature of the work) of any Interruption to the Services; and
- minimise any Interruption to the Services.
9.5 Maintenance of Customer Equipment
If we use any of your facilities or Customer Equipment to provide the Services to you, you are responsible for the maintenance of your facilities and Customer Equipment unless we otherwise agree in writing.
You will ensure that the Service Equipment, and any other Customer Equipment, facilities or connections used in providing Services, are not altered, maintained, repaired or connected to, or disconnected from, any power source or line except by service personnel approved by us.
On the termination of supply of the Services for any reason you will immediately return all Service Equipment to us, or make it available for collection by us. If you do not return the Service Equipment, you must pay to us on demand the full retail price of the Service Equipment (including the cost of acquiring or renewing any necessary software licences).
10 EQUIPMENT YOU ACQUIRE FROM US
If we sell to you a facility or any item of equipment (Purchased Equipment) either for use in the provision of the Services to you or otherwise, then:
- that Purchased Equipment remains our property until we receive full payment from you or we otherwise deem in our sole discretion that title has passed to you (prior to the receipt of full payment);
- until we receive full payment from you, you will not part with possession of the Purchased Equipment except to us;
- if you do part with the Purchased Equipment before making full payment to us, we may recover the value of it as a debt due, including offsetting the value of the Purchased Equipment against any monies owed to you by us;
- until full payment of the Purchased Equipment is received, you indemnify us against and must reimburse us for any loss or damage to it, unless that loss or damage arises from fair wear and tear; and
- until we receive full payment for the Purchased Equipment, you must not remove or obscure any identification marks on it, and must comply with our reasonable instructions to protect our ownership and not do anything which might detrimentally affect our ownership of the Purchased Equipment.
Risk of loss or damage to the Purchased Equipment will pass to you upon delivery.
Subject to agreement between us and you as to which Services we or a contractor on behalf of us will install, such Services will be installed at the service location address nominated by you. We may charge you our current Fees for a non-standard installation of a Service. We will use reasonable endeavours to install a Service on or around the installation date requested by you.
10.4 Returns and Refunds
Subject to any rights you have in respect of our breach of a Consumer Guarantee:
- we do not refund unwanted Purchased Equipment. If you require a different model, we allow 7 business days from the date you receive the Purchased Equipment to return to us at your own cost.
- No credit will be applicable on any Purchased Equipment returned after the 7 business day period referred to in paragraph a.
11 CHANGE, SUSPENSION AND CANCELLATION OF SERVICES
11.1 Your rights to change, cancel or terminate
- You may notify us of your intention to change a Service at any time by giving us written notice. The change of Service will occur at the start of the month following the date of receipt of notice.
- You may cancel a Service by giving us 30 days’ notice. If you cancel a Service during an applicable Fixed Term for that Service, you may be liable to pay an Early Termination Fee in accordance with clause 4.13.
- You may also cancel a Service at any time by giving us notice if:
- you are entitled to do so in accordance with clause 3.9;
- you are entitled to do so in accordance with clause 13.2;
- we are in material breach of the Terms, which is capable of being remedied, but which we have failed to remedy within 30 days after you telling us of that breach; or
- we are in material breach of the Terms and it is something which cannot be remedied, including where there have been prolonged or repeated Interruptions to the Service. This clause does not apply to Interruptions which occur because of:
- a cancellation, suspension or restriction to the supply of the Service in any of the circumstances listed in clause 11.3;
- a system or network outage for an insignificant period;
- scheduled maintenance of Our Network in accordance with clause 11.3.e;
- a fault or other event which may reasonably be attributed directly or indirectly to your Equipment; or
- your acts or omissions.
- If you cancel a Service for any of the reasons set out in paragraph c:
- you will not be liable to pay an Early Termination Fee (provided that we can recover any outstanding Fees incurred up to the date on which your Service ends and any other outstanding amounts); and
- you will be entitled to a refund of the unexpired portion of any amounts you have paid in advance for the Service in accordance with clause 4.13.
11.2 Our Suspension and Cancellation Rights
We may suspend, limit or cancel a Service:
- if you notify us in accordance with clause 11.1;
- to the extent necessary for us to comply with an order, instruction or request of a Government Agency, an emergency services organisation or any other competent authority (whether such an order, instruction or request is received or reasonably anticipated by us);
- if we are required to do so by Law;
- if there is an emergency;
- if the Network is being modernised or upgraded;
- if a third party (including any Third Party Supplier) withdraws or suspends a service which means we cannot provide your Service;
- during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as practicable;
- if there are reasonable grounds for believing a threat or risk exists to the security or integrity of Our Network or that provision of the Service may cause death, personal injury or damage to property;
- if we reasonably determine that such action is necessary to repair, maintain or restore any part of Our Network;
- if the provision of the Services by us does or may contravene any Law or we have reasonable grounds to believe that it may in the immediate future contravene any Law;
- a Force Majeure Event prevents us from supplying the Service in accordance with the Terms for 30 days; or
- if your Service has not been used or accessed for a continuous period of 24 months.
11.3 Other Suspension or Cancellation Events
We may suspend, limit or cancel a Service if:
- you vacate the premises to which we have been supplying a Service to you;
- we are unable to enter the premises to inspect, repair or maintain any Equipment or cabling connected with a Service provided to you;
- we have the right to do so in accordance with clause 4.9 for your failure to pay Fees or other amounts;
- we have reasonable grounds to suspect fraud or other illegal conduct by you in applying for the Service;
- we have reasonable grounds to suspect fraud or other illegal conduct by you or any person using your Service;
- you fail to comply with our Acceptable Use Policy;
- you fail to rectify any defect or inadequacy in any Customer Equipment or cabling not owned or maintained by us within 30 days of being requested to do so by us;
- your use of the Services interferes with the efficiency of Our Network or a Third Party Supplier’s network and you fail to rectify the situation within 24 hours of being requested to do so by us;
- if you do, or allow to be done, anything which in our reasonable opinion may have the effect of jeopardising the operation of any Service;
- you become a carrier or carriage service provider within the meaning of the Telecommunications Act;
- you become bankrupt, insolvent or have a receiver, manager, administrator or liquidator appointed over you or any of your assets;
- we have reasonable grounds for believing you are a credit risk, including the following grounds:
- your usage of the Service is unusually high when compared to previous account activity and you fail to respond to notices from us about that usage (but you acknowledge that we are not obliged to monitor usage of a Service, or to suspend, limit or cancel a Service if there is unusual usage, and you remain liable to us for usage of that Service);
- you fail to pay an invoice by the Due Date and have a payment history indicating late payments, dishonoured payments or failures to pay; or
- we become aware of public notices of your pending bankruptcy, winding up or other insolvency events,
- and we have taken reasonable steps to notify you of the suspension, limitation or cancellation of the Service; or
- you are in material breach of any of the Terms, including these General Terms.
11.4 Cancellation for Convenience
We reserve the right to remove any Service:
- at any time after the end of the Fixed Term by giving you 30 days’ notice; or
- during the Fixed Term, if we have your consent; or
- during the Fixed Term, if we offer to migrate you to a reasonably comparable alternative service for the remainder of the Fixed Term and take reasonable steps to offset any more than minor detrimental effects of the migration caused by differences between the cancelled service and the alternative service we offer;
- if we reasonably determine that it is not technically or operationally feasible to supply the Service to you, at any time prior to the Service commencement date specified in clause 3.5 by giving you notice.
11.5 Consequences of Cancellation, Suspension or Termination
- If we cancel or suspend the Service for any of the reasons listed in clause 11.4, we will not charge you any disconnection or reconnection fee.
- Without limiting any of our rights under these Terms or at Law, if we cancel or suspend the Service for any of the reasons listed in clause 12.4, you will be liable to pay a disconnection fee and, if we agree to reconnect the Service, a reconnection fee in addition to your liability to pay all other Fees incurred up to the time of cancellation of the Service.
- If we advise you that we are removing your Service, you will not be liable to pay a disconnection fee, but will be liable to pay all other Fees incurred up to the time we remove your Service.
- If we suspend a Service in accordance with these Terms as a result of a breach of these Terms by you, you will have to pay all charges arising in respect of the Service during the suspension (excluding usage based charges).
- On termination of a Service for any reason, you must immediately:
- stop using the Service and any Equipment owned by us or any Third Party Supplier; and
- allow us to remove any Equipment owned by us or any Third Party Supplier or any Purchased Equipment that you have not paid for in full.
- You remain liable for all Fees payable in respect of Services provided to you up to the time of cancellation, suspension or termination.
- If your Service has been terminated or cancelled for any reason, we may delete all of your data from any storage media. You are solely responsible for backing up your data.
11.6 Expiration of a Fixed Term or Other Period
- we provide a Service to you for a Fixed Term or any other period;
- that Fixed Term or other period expires; and
- neither you nor we cancel the Service;
we will continue to supply the Service to you on a month to month basis.
11.7 Re-connection Fees
We may charge you a fee for the reconnection of any Service, except where the disconnection was caused by our error or our failure to perform our obligations as set out in the Terms or was the result of any of the events specified in clause 11.2.
12.1 Our liability for property damage, personal injury and death
We are liable to you for:
- any loss, destruction or damage to your tangible property during installation, repair or maintenance of Equipment; and
- personal injury (including illness and disability) or death, which is caused by our fault, negligence or fraud.
12.2 Our liability for Interruptions to the Service
- Subject to paragraph b, we accept liability to you for Interruptions to the Service to the extent of providing you with a pro-rata refund of service charges payable for the duration of the Interruption.
- The refund in paragraph a does not apply:
- to Interruptions which occur because of:
- a system or network outage for an insignificant period;
- scheduled maintenance to Our Network, a Third Party Supplier’s network, Our Equipment or Purchased Equipment;
- a cancellation, suspension or restriction to the supply of the Service in accordance with clause 12.4; or
- if you are separately entitled to receive compensation in respect of the same Interruption in accordance with clause 13.3 or clause 13.4.
- to Interruptions which occur because of:
- To receive the refund set out in paragraph (a), you must contact our team at firstname.lastname@example.org or call 1800 448 305 and lodge a complaint about the Interruption.
12.3 Our liability under the Customer Service Guarantee
- This clause 13.3 applies subject to any waiver of your entitlements under the Customer Service Guarantee Standard (the CSG) that you have provided to us. It may be a condition of some services that you waive your entitlements under the CSG.
- To the extent that we provide you with a standard telephone service (as defined in the Telecommunications (Consumer Protection and Service Standards) Act 1999) and specified enhanced call handling features, our service must comply with the CSG. The CSG sets out minimum performance standards in relation to service connection times, fault repair times and keeping appointments to provide you with a Service. The CSG does not apply to Customer Equipment or to customers that have more than five telephone services. We will connect Services not covered by the CSG within a reasonable time.
- If we do not meet the CSG performance standards, you may be entitled to receive monetary compensation as specified in the CSG. However, there are circumstances in which we may be exempt from meeting those requirements, including:
- if you have agreed to a CSG waiver under the terms of the relevant Service Description in accordance with Part 5 of the Telecommunications (Customer Service Guarantee) Standard 2011; or
- where you unreasonably refuse us access to your premises; or
- if you miss an appointment without giving us reasonable notice. For more information about the CSG, go to the ACMA website at www.acma.gov.au.
12.4 Consumer Guarantees
We will provide the Services to you subject only to the terms, conditions and warranties contained within the Terms and those imposed by Law which cannot be excluded. For example, if we supply Equipment or a Service to you which costs less than a prescribed amount (currently $40,000) or which, regardless of cost is of a kind ordinarily acquired for personal, domestic or household use, then Consumer Guarantees require that the Service will be provided with due care and skill and that the Equipment will be of acceptable quality. Certain remedies are available to you under the Australian Consumer Law if the Service or Equipment we supply to you fails to meet the standard required by applicable Consumer Guarantees.
12.5 Limitation of Liability for breach of a Consumer Guarantee
- Where we are not permitted to exclude our liability for our breach of a Consumer Guarantee but are permitted to limit our liability for such a breach, unless you are able to establish that it is not fair and reasonable for us to do so, our liability to you is limited to:
- if the breach relates to Equipment, the repair or replacement of the Equipment, the supply of equivalent Equipment or the payment of the cost of repairing or replacing the Equipment or supplying equivalent Equipment; or
- if the breach relates to a Service, resupplying the Service or payment of the cost of having the Service resupplied.
- The limitations of liability in clause 12.5(a) do not apply to:
- a breach of the Consumer Guarantees relating to clear title, undisclosed securities and undisturbed possession under sections 51 to 53 of Schedule 2 to the Competition and Consumer Act 2010 (Cth); or
- a breach of any Consumer Guarantee relating to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.
12.6 Exclusion of Liability
To the extent permitted by Law, neither a Third Party Supplier nor us have any liability to you or to any other person for:
- any Claim by you or any other person for Consequential Loss (other than loss resulting from our breach of a Consumer Guarantee);
- any loss or damage suffered by you in connection with your Service to the extent that your acts or omissions or any Customer Equipment cause or contribute to that loss or damage;
- any loss to the extent that it results from your failure to take reasonable steps to avoid or minimise your loss; and
- acts, omissions or defaults of any third party or any person who provides goods or services directly to you for use in connection with a Service.
12.7 Cancellation of a Service
Cancellation of a Service or termination or expiry of your Service does not affect the provisions of the Terms concerning limitation of liability and indemnity.
13 FORCE MAJEURE
13.1 No Liability
Subject to our obligations under the CSG as described in clause 13.3 and any non-excludable rights you have under the Australian Consumer Law, we are not liable for, and will not be deemed to be in breach of the Terms in the event of:
- any delay in installing a Service;
- any delay in correcting any fault in a Service;
- failure to provide a Service or incorrect operation of any Service;
- Service outages; or
- any default by us in compliance with the Terms,
if it is caused directly or indirectly by a Force Majeure Event.
13.2 Termination for Force Majeure
If any delay, Interruption or failure to deliver under clause 13.1 continues for more than 30 days after the commencement of the delay, Interruption or failure to deliver, then either party may terminate the affected Service(s) by notice in writing to the other party.
14 TELEPHONE NUMBERS AND PUBLIC ADDRESSING IDENTIFIERS
- The Telecommunications Numbering Plan 2015 (Cth) sets out the rules with which we must comply for the issuing, transferring and changing of telephone numbers.
- In addition to telephone numbers, the Service may use other identifiers such as an IP address or domain name (Public Addressing Identifiers). You must comply with the requirements of any Regulatory Authority or other body which administers Public Addressing Identifiers.
- You are entitled to continue to use any telephone number we issue to you, except in circumstances where the Telecommunications Numbering Plan allows us to recover the number from you.
- You acknowledge that:
- we do not control the allocation of Public Addressing Identifiers;
- we are not liable to you if we are required to change, withdraw, suspend or re-assign any Public Addressing Identifier as a result of any direction given by a Regulatory Authority or other body which administers Public Addressing Identifiers; and
- on cancellation of the Service, your right to use a Public Addressing Identifier may cease.
15.1 Giving Notice to You
We may satisfy any obligation to give you notice by:
- delivering the information to you in person;
- sending the information by pre-paid post to the address listed in our records for you;
- sending the information by SMS message to the mobile telephone number listed in our records for you if you have selected SMS as your preferred communication method;
- transmitting the information to the email address listed in our records for you. By applying for the Service, you consent to notices being sent to your email address. It is your responsibility to check your emails and to inform us of the most appropriate address for receipt of notices or if you do not wish to receive notices via email; or
- including the information on, in or with an invoice, including by an invoice made available to you online via MyAccount.
We will seek to resolve any dispute in accordance with our Complaint Handling Policy. If a dispute remains unresolved, you may have rights under the Telecommunications Industry Ombudsman (TIO) scheme. For further information go to www.tio.com.au or call the TIO on 1800 062 058 or (TTY) 1800 675 692.
15.3 Intellectual Property
You do not own or have any legal interest in any of our intellectual property or in any telephone number, IP address, domain name, personal identification number or other locator or identifier issued by us to you.
You must inform us if you want another person to act as an authorised representative in accessing or making changes to your Service or account. Subject to our rights and obligations in clause 6, we will not let another person access your account unless we have received your authority to so.
15.5 Governing Law
a. The Terms are governed by the laws of the Commonwealth of Australia and the laws of Victoria.
b. You and we submit to the exclusive jurisdiction of the courts of Victoria.
We may subcontract any of our obligations under the Terms.
15.7 No Waiver
No failure to exercise, or any delay in exercising, any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting the waiver unless made in writing.
Any provision of the Terms which by its nature is intended to survive termination or expiry of your Service (including without limitation any exclusion or limitation of liability or indemnity in the Terms) will survive termination or expiry of your Service for any reason.
15.9 Severability of Provisions
Any provision of the Terms that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of the Terms nor affect the validity or enforceability of that provision in any other jurisdiction.