1.       Understanding

          Broadband Anywhere Pty Limited (hereinafter “BA”) carries on business as an Internet service provider and provider of related goods and services including the “Broadband Anywhere (BA) Service (the “Service).  The Customer wishes to utilise the Service and BA wishes to provide the Service to the Customer on the terms and conditions outlined in this Agreement.

          If you made a Service application, and BA after consideration agrees to supply the Service, it will be on the terms and conditions set out in this Agreement.

          BA may engage an agent, dealer, contractor, or franchisee to conduct any aspect of service provision and maintenance under this Agreement, subject to the prior consent of the Customer.

2.       Customer’s Obligations

          The Customer agrees to comply with these Terms and Conditions, including the Acceptable Use Policy and the Service Level Agreement  (which are set out in Schedules 1 and 2 to these terms respectively) together referred to as “the Terms”.  A failure to comply with the Terms may result in a suspension of the BA Service.

3.       Period of Contract and Effective Date

3.1     Unless otherwise agreed upon, the period of contract for the provision of the BA Service is 18, 24 or 36 months (hereinafter referred to as the “Initial Service Period”). These Terms shall commence on the date each party signs the BA order form, unless the parties agree otherwise and continues until it is terminated in accordance with clause 11 of these Terms. If, during the post-sales service technical qualification process
(the process whereby BA verifies that the Customer’s premises is located in an area service enable by BA),
BA determines that it cannot provide the contemplated service to the customer, then the Terms will be null
and void.

3.2    In the case of a Broadband Connect service the price for the Broadband Connect service will not increase for a minimum of three years from the date the service is first connected.

4.       Nature of the Service

          Range

4.1     As part of the BA Service, BA agrees to provide the following to the Customer:

          (a)     Internet access,
          (b)     Email address
          (c)     Monitoring,
          (d)     Maintenance,
          (e)     Help desk support, and

4.2   Other related Internet services (such as web hosting and email) as mutually agreed upon by the parties.

          Third parties

4.2     BA does not guarantee the availability of third party telecommunication carriers’ networks that may be used to deliver the BA Service.  BA is not responsible for the non-performance of a third party network provider or provisioning agent for any delay in the BA Service including access to the Internet by the Customer.

4.3     BA reserves the right to vary the technical configuration or the components of the BA Service following consultation with the Customer. If however, as a result of this consultation, the Customer does not agree with the proposed changes being implemented, the Customer has the right to cancel the Service, with any associated fees or charges being waived.
         
          Customer’s Equipment
4.4    The Customer acknowledges that in order to access the BA Service, the Customer must possess a Customer Premises Equipment (CPE) (the hardware device at which the Ethernet connection is terminated, for example a router, hub or computer) with an RJ-45 Ethernet port. The customer must provide the power required to run the CPE.  The customer computer(s) or other attached device(s) must support the TCP/IP (Transmission Control Protocol / Internet Protocol) protocol. Once supplied to or purchased by the Customer, the Customer has ownership of the CPE and is solely responsible for this CPE and its operation.

4.5     The BA Service will be presented to the customer’s premises as a wireless connection. To enable connection to the customer’s premises, BA will use the CPE.

4.6     BA will supply wireless equipment (if required) to be located at the Customer’s premises, namely the “Standard BA Equipment” to which the BA Service will connect.

          Ownership
4.7     The Standard BA Equipment (Being all or some of the following equipment. A BA Wireless Receiver, power supply adaptor, UPS, solar panels, mounts, network antennas and Power over Ethernet device) remains the property of BA at all times.  As such:

1. The Customer must not interfere with or disconnect, or connect any unauthorised items to the BA Equipment;
2. The Customer must not sell or part with it, or allow it to be used as security and must not engage in illegal activities in relation to the BA Equipment;
3. The Customer must notify BA immediately upon becoming aware of any loss, theft or damage to BA’s equipment; and
4. The Customer agrees to take due care of any BA Equipment installed on the customer premises.
5. The Customer agrees to allow employees of BA or contractors of BA access to the BA Service Equipment at all times for repairs, upgrades or removal if required.

          Installing the Service
4.8     The Customer agrees to provide BA personnel, and other third-party carrier representatives that may be involved in the implementation of the BA Service, with reasonable access to the Customer’s premises as required. The Customer may also be called upon to assist BA personnel gain access to facilities within the Customer’s premises or building to enable activities such as the installation and removal of BA Equipment to the Customer’s premises, perform maintenance and generally ensure that the Customer complies with the Terms.

4.9     BA may agree with the Customer to a date on which BA will seek to connect the BA Service and BA will endeavour to keep to the agreed date but will not be liable for any loss suffered by the Customer if connection is not made on that date.

4.10   The Customer acknowledges that, while BA will take reasonable care not to cause any damage, BA's installation, inspection and maintenance of the BA Service has the potential to cause damage to the Customer’s computer software, hardware or data and may also invalidate the Customer’s computer warranty.

4.11   The Customer agrees to accept the risk of any of the occurrences described in clause 4.10.  The Customer further agrees to back up all existing computer files by copying them to another storage medium or to another computer before BA performs the installation.  BA does not accept any responsibility or liability for any loss or damage it may cause to the Customer’s computer, software, files, data or peripherals, except where the loss or damage is caused by a negligent act or omission of BA or its employees, contractors or agents.

4.12   BA reserves the right to charge for non-standard installation, relocation of the computer outlet within the Customer’s premises and/or the reinstallation at a new address, subject to prior agreement being reached with the Customer.

5.       Customer Support

5.1 BA shall be responsible for the repair and replacement of the Standard BA Equipment, if required.

However, for the purposes of clause 5.1, if the Equipment fault was caused by:

(a) Any non-BA equipment (such as the CPE, software or data), or
(b) Any interference with or modification to the BA Equipment, or
(c) Failure to use the BA Equipment in accordance with instructions,

5.2 Then BA will be entitled to charge the Customer for the service call, repair or replacement.  Furthermore, if BA makes a service call at the Customer’s request but there is no fault with the BA Equipment, BA may charge the Customer a service fee.

 5.3 BA shall provide a free 24x7 fault reporting and help desk facility. The manned help desk will operate between the hours of 8.30am and 8.00pm. After hours customers can report a fault to our help desk by way of a message service.

6.       Payment

6.1 In return for the provision of the BA Service, the Customer is required to pay to BA the charges specified in the Service Agreement (“the Charges”).

6.2 Except as expressly stated, prices quoted are GST inclusive.  When BA issues the Customer a tax invoice, the Charges will be calculated including GST.  GST will be calculated on the total amount of taxable supplies during the billing period and shown as a separate entry.  Under this clause the expression “GST” has the same meaning given to it under A New Tax System (Goods and Services Tax) Act 1999.  The charges for the Service are generally listed on the bill (tax invoice) without GST.  These amounts are totalled (or subtotalled) on the bill and the GST is then calculated and added separately.  Due to rounding, differences may arise between the GST inclusive prices in this Agreement and the charge calculated on the bill using the GST inclusive prices.

Note:  any discounts applicable will be calculated on the charge without the GST.

Note:  Some charges are GST exempt.  For these charges only 1 price will be listed in this Agreement or the price without the GST will be applicable.

Note:  In some cases advertised prices are rounded up for ease of understanding.

6.3 Except as provided for in clause 6.2, the monthly charge, installation charge and any other fee charged by BA does not include any amount on account of any withholding tax, charge, rate, duty or impost imposed by any authority, any GST or income or capital gains tax (“Tax”).  If any Tax is payable by BA in relation to these Terms, BA will increase the Charge on account of the Tax and the Customer must pay the increased Charge.  BA will adjust the Charge having regard to Part VB of the Trade Practices Act 1974 (Cth).

6.4 Unless otherwise specified, setup, installation and monthly rental fees are payable monthly in advance.  Traffic and VoIP call charges by default are charged monthly in arrears.  Traffic and VoIP charges for the previous month will be incorporated into the same invoice listing the advance month’s rental charges.

6.5 The Customer will be responsible for and liable to pay all applicable charges relating to the Service, including upload and download traffic, whether such use was made by:

(a) The Customer;
(b) Another person with or without customer knowledge or consent.

6.6 All payments must be made within 14 days of the date of the invoice.  The Customer can pay the Charges by credit card, cheque and money order or such other method as agreed to by the parties.

6.7 Invoices will be sent to your BA Online email account. Posting of paper invoices is available but discouraged for environmental reasons, and if requested will attract a $1.50 surcharge per invoice. If the Customer fails to pay invoices within time, BA will issue a reminder notice. If the Customer fails to pay after a reminder notice has been issued, BA will approach the Customer directly and seek explanation for the delay in payment.  Unless extenuating circumstances are provided to BA, failure to pay after such steps have been taken will entitle BA to suspend the BA Service until payment has been received.  If payment is not received within 14 days of the suspension of the BA Service, BA may exercise its rights under clause 13.

6.8 BA may charge a late payment fee on any overdue amounts due under an invoice; min charge will be $5.50 inc. GST. In addition, BA may impose an administrative charge to cover its reasonable expenses and costs incurred in enforcing any failure or delay in the Customer’s payment (including the cost of engaging a mercantile agent).

6.9 The Customer will pay BA’s charges without any set off, counter-claim or deduction.

6.10 BA may set off any amount payable to the Customer against any amount payable to the Customer by BA.

7. Copy of Previous Bills

You may request a copy of your bill from a previous billing period.  BA may charge for the copy of the bill at the rate of $10.00 ($11.00 including GST) or such other amount as considered reasonable by BA.

8.      Confidential and Personal Information

Confidential Information

8.1 Subject to clauses 8.4 to 8.9, each party agrees to strictly maintain the confidentiality of all Confidential Information of the other party disclosed, exchanged or otherwise provided under these Terms.  Neither party may use, copy or disclose any Confidential Information of the other party except as described by these Terms.

8.2 A party may disclose Confidential Information of the other party if either:

(a) The disclosure of that Confidential Information is permitted or required by law or the disclosure is required by the rules of any stock exchange, 

(b) The party whose Confidential Information is to be disclosed consents to the disclosure in writing; or 

(c) Disclosure to a third party is necessary for the performance of a party’s obligations under these Terms, and the third party acknowledges the confidential nature of the Confidential Information and agrees to be bound by the provisions of this clause.

8.3     For the purposes of this clause, Confidential Information means any information, whether it is oral, written, visual or other form, of, or relating to a party, which    is not public knowledge, including without limitation the Terms, all information received from the other party in connection with these Terms and all negotiations and discussions relating to these Terms.

Personal Information

8.4     For the purpose of applying its credit policy, and ongoing credit management of the Customer’s account, the Customer authorises BA to obtain credit information from a credit reporting agency, and to obtain information about the Customers’ personal or commercial activities or credit worthiness from a business which provides that information.

8.5     The Customer also authorises BA to seek from, or give to, any credit providers named in a credit report or any BA Related Corporations, or BA agents, dealers, contractors and franchisees, information about your credit arrangements.  This information can only include any information about you credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act 1988 (Cth).

a. BA may monitor usage of, or limit or cancel the Customer’s Service or require a deposit on the basis of its assessment of the Customer’s credit risk profile.  The Customer is usually entitled to access and correct any credit information that BA holds about the Customer.

b. The Customer authorises BA to use this information for business planning and research purposes only.

c. BA may, with Customer’s prior written consent, make any disclosure of the Customer’s service usage information, or which BA is requested and required to make by law.

d. The Customer may not mention the BA Service in any promotional material or press releases without prior written consent of BA.


e. In relation to the use of the Service, the Customer authorises BA to share information obtained in connection with the supply of the Service to the Customer to any Related Corporation, BA’s agents, dealers, contractors and franchisees and in particular where required for the provision of the Service to the Customer and in the context of BA’s ongoing relationships with Suppliers.

f.  In certain other limited circumstances, BA is permitted by law to disclose your name, address, service number and other details.  This disclosure may be made in circumstances including: to law enforcement agencies; to assist in the recovery of lost or stolen equipment; by court order; or for purposes relating to the enforcement of the criminal law.

9.     Intellectual property

          BA retains all present and future intellectual property rights pertaining to the BA Service including information, such as promotional material (web based and printed), technical documentation of the BA network and hosting infrastructure or business plans prepared for the Customer in relation to the BA Service.

10.     Liability

a. BA does not warrant that the BA Service will be uninterrupted or error-free.

b. BA excludes all implied conditions and warranties from these Terms, except those implied conditions and warranties (such as those implied by the Trade Practices Act) the exclusion of which would be illegal or render this clause void (“Non-Excludable Condition”).  Except to the extent that the BA Service is deemed to be a service ordinarily acquired for business or household use, BA limits its liability for breach of any Non-Excludable Condition (except any warranty as to title) to re-supplying the goods or services which gave rise to the loss or damage or paying the cost of re-supply.

c. Subject to clauses 11.2, 11.4, 11.5 and the service level guarantees provided in Schedule 2, BA limits its liability for breach of these Terms and all loss, damage, costs and expenses suffered or incurred by the Customer in connection with the Service (whether arising in contract, tort (including negligence) or under statute) to re-supplying the goods or services which gave rise to the loss or damage or paying the cost of that re-supply.

d. BA excludes all liability to the Customer (whether arising in contract, tort (including negligence) or under statute) for any indirect or consequential loss and damage the Customer may suffer or incur in connection with the Service, including, but not limited to, loss of revenue, profits or business opportunities.

e. Nothing under this clause 11 limits or seeks to limit any rights the Customer may have pursuant to the Customer Service Guarantee established under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.  BA undertakes to provide further information to the Customer regarding this legislation if so requested by the Customer.

f. The Customer indemnifies BA for any costs, expenses, loss or liability directly or indirectly suffered or incurred by BA arising from the Customer’s breach of these Terms, or the Customer’s use or misuse of the BA Service.

12.     Handling of Customer Disputes

The Customer may complain about the BA Service in writing or by calling one of BA's customer service representatives.  BA will comply with its consumer complaints procedures (a copy of which will be supplied to the Customer on request) in endeavouring to resolve the Customer’s complaint.  If BA is not able to resolve the Customer’s complaint to the Customer’s satisfaction, the Customer may refer his/her complaint to the independent Telecommunications Industry Ombudsman.

13.     Suspension and Termination

a. BA may suspend or terminate the BA Service if the Customer breaches these Terms.  BA may terminate the BA Service immediately if the customer either becomes insolvent or has a receiver, manager, administrator or liquidator appointed or appears likely to do so.  In each of these circumstances, BA will give the Customer at least 5 days written notice of such suspension or termination.

b. Where the Customer’s access to the BA Service is suspended, BA may, in its absolute discretion, re-connect the Customer to the BA Service after such a suspension, if the Customer undertakes to comply with these Terms in the future. 

c. BA may also suspend the BA Service, at any time without notice, for any reason including but not limited to, technical reasons, network repairs, or to comply with any law or an order of an emergency service or government authority. When BA anticipates, or has advance knowledge of a suspension to the BA Service they will notify the Customer of this suspension via e-mail or any other means.  BA acknowledges that, in some circumstances, this may render BA liable to the payment of Service Credits to the Customer under the terms of the Service Level Agreement as set out in Schedule 2.

d. The Customer may terminate the Service by giving BA 30 day’s written notice. The Customer must pay for the BA Service up until the end of the contract period. 

e. The Customer authorises BA to debit these payments to the Customer’s credit card or bank account on receipt of a termination notice from the Customer.

d. If the Service is terminated:

1. The Customer must allow BA to disconnect the Service (and BA may charge the Customer a disconnection fee); and
2. The Customer must immediately return the BA Equipment (or allow BA, or nominated agent to collect it) and pay any outstanding Charges, subject always to the provisions of clause 4.8 of these Terms and BA is under no obligation to return the Customer’s premises to its original condition after the BA Service is terminated (for example, by removing wall sockets BA has installed).

14.     Unavoidable delay

          BA may provide a target completion date for installation of the service however, BA is not liable for any failure to perform and delay in perform its obligations under these Terms if such failure or delay is due to anything beyond BA’s reasonable control.  If that failure or delay exceeds thirty (30) days, a party may terminate these Terms with immediate effect by giving written notice to the other party. 

15.     Initial Service Period and Renewal of Contract

a. The Customer agrees to acquire the Service for the Initial Service Period as specified in Clause 3.

b. ubject to Clause 15.3 of this Agreement the Customer may terminate the Service during the Initial Service Period by:

1. Giving to BA 1 month’s written notice; and

2. Paying to BA the amount described in Clause 15.3 below.

c. If the Customer cancels the Service pursuant to clause 15.2 above prior to expiry of the Initial Service Period, the Customer must pay on cancellation an amount equal to the Total Monthly Payment in the Service Application multiplied by the number of months remaining in the Initial Service Period as at the date of cancellation.

 d. The Customer acknowledges that if the Customer terminates the Service in accordance with clause 15.2 above, BA will suffer loss arising from the provision of the network components required to supply the Service.  Accordingly the payments in clause 15.3 represent a genuine pre-estimate of the loss BA will suffer and are not a penalty.

e. These Terms shall automatically renew on a month-to-month basis at the expiry of the Initial Service Period unless the Customer advises BA otherwise in writing 30 days prior to the expiry of the Initial Service Period.

16.     General

These Terms shall be binding on all successors, heirs and assigns of the parties.

a. References to clauses and schedules are references to clauses of and schedules to these Terms.  References to any law include any consolidations, amendments, re-enactments or replacements of that Law.  Words in the singular include the plural and vice-versa.  Headings have been inserted for convenience and are not to be interpreted as part of these Terms.

b. BA does not waive its rights under these Terms unless the waiver is in writing and signed by an authorised representative of BA.

c. The indemnities provided under these Terms survive the termination or expiration of these Terms.

d. The Customer shall not give or transfer any rights or obligations under these Terms without BA’s prior written approval.

e. The Customer must not resell the BA Service or permit any other person to do so unless authorised by BA.

f. The Customer agrees to BA telemarketing the Customer using its own employees or through another party for the purpose of informing the Customer of network updates and new products and services.

g. Any provision of these Terms which declared void, voidable or unenforceable, by a court of competent jurisdiction, may be severed from these Terms and the remainder of these Terms will continue unaffected.

h. BA may amend these Terms by giving the Customer 30 days notice, by mail or email informing them that the new Terms will take effect within 60 days.  BA may communicate with the Customer by email in relation to the Service.  If the Customer does not wish to be governed by the amended Terms, the Customer may terminate the Service and will only be liable for the amounts owing under the original signed contract.

i. These Terms constitute the entire Agreement of the parties about its subject matter, and any previous Agreements, understandings or negotiations regarding the subject matter, either oral or in writing do not have any effect.

j. These Terms shall be construed and governed by the laws of the State of South Australia and the parties hereby agree to submit themselves to the non-exclusive jurisdiction of the courts of that State.

 

SCHEDULE 1
ACCEPTABLE USE POLICY

This is BA‘s Acceptable Use Policy.  This policy applies to all users of the BA Service regardless of the size, nature and location of the Customer.

1. The Customer must take all reasonable measures to prevent unauthorised access to the BA network.

The Customer must comply with all applicable local, state, Commonwealth and international laws.

1. Minors must be supervised by a parent, teacher or other responsible adult at all times while using the Service as BA is not responsible for Internet content that may be accessed using this service.

Disruption of the network is not allowed.  As a user, the Customer may not use the Service to interfere with or disrupt other network users, services or equipment.  Activities which the Customer is forbidden from engaging in include, but are not limited to:

1. The distribution of messages to inappropriate or unrelated forums, newsgroups or mailing lists (`spamming');
2. The sending of unsolicited bulk or commercial messages;
3. The sending of messages to individuals who have indicated that they do not wish to receive messages,
4. The propagation of chain letters,
5. The collection of responses from unsolicited email sent from accounts on other Internet hosts or email services which violate this Acceptable Use Policy,
6. The forging, alteration or removal of electronic mail or newsgroup headers,
7. The sending of numerous copies of the same or substantially similar message, large messages or files, to a recipient with the intent of disrupting a server, account, or service (‘mail bombing’),
8. The posting of a large number of messages or amounts of text in newsgroups or chatrooms with the intent to disrupt discussion or the service of other users (‘flooding’),
9. The propagation of computer worms, viruses and other types of malicious programs,
10. Transmissions of any type or quantity which adversely affect BA’s operation or jeopardise the use of BA’s service, or its performance for other subscribers;
11. Harassment or impersonation of BA or other users.

The Customer must not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information, data, text, graphic, audio or other like material accessed through or received from the Service or otherwise that may infringe the intellectual property rights of any person.

1. The Customer must not download, upload or distribute public domain materials (eg. Images, text and/or programs) which are copyrighted, without the permission of the copyright holder.

The Customer must not illegally use any process, program or tool via the Service for breaking or accessing the passwords of Customers on BA or any other Internet Service Provider’s systems.

1. BA expressly forbids the Service to be used to host pornographic, racist, homophobic, offensive, or any unlawful material.  If a Customer is found to be knowingly hosting such material, BA reserves the right to terminate the Customer’s service forthwith.

The Customer must follow all procedures specified by BA in relation to the lodgement of hosted content.

1. The Customer must take all reasonable measures to prevent unauthorised access to the BA hosting platform.

The Customer must ensure that the content hosted on BA’s servers as part of the Service, coupled with any programming or software code does not contain any defects, or other code that is intended or is likely to:

1. Cause the hosted content to cease being operational,
2. Cause any damage to or interfere with the content, or information stored on the BA hosting platform, or
3. Result in unauthorised access to the BA hosting platform.

The Customer must ensure that all content on its site relates to that Customer only and its business or the business carried out by its parent company, subsidiaries, or subsidiaries of the parent company.

1. Pursuant to the above, the Customer must ensure that the Service is not used to host content or assist the business of a third party client, unless BA permission is expressly given to do so.  Resale of BA services is not allowed.

The Customer acknowledge that information available through BA from the Internet may not be accurate, that some of the information available through BA or the Internet may be intended for adult audiences and that Internet communications are not secure nor private and may be subject to interception or loss.  BA disclaims any liability for any material on the Internet that the Customer finds upsetting, defamatory or personally offensive.

1. The Customer acknowledges that the Internet is not an inherently secure system and undertakes responsibility for the protection of his/her/its data stored, or conveyed on the BA network.

The Customer acknowledges that the Internet may contain viruses (including other destructive programs) that may, if not eliminated, destroy parts or all of the data contained within the Customer’s system.  The Customer further acknowledges that BA has no control or authority over these viruses and is not liable for any damages that such viruses may cause.

1. To ensure that this policy is followed BA may (under certain conditions that relate to the Telecommunications Act, 1991) monitor the content of traffic over the Service but will respect the Customer’s privacy.  If BA monitors the content of a Customer’s traffic, BA will safeguard the Customer’s privacy unless to do so would involve BA in concealment of a criminal offence or inhibit the enforcement of this policy.  If BA becomes concerned that the Customer’s use of the Service may break the law or that the Customer has not complied with this policy BA will attempt to contact the Customer before taking action.  BA may terminate the Customer’s account and/or notify the authorities if BA believes that the Customer’s use of the Service may break the law or that the Customer has not complied with this policy.