Rivertel Pty Ltd
General Customer terms & conditions
General Customer Terms and Conditions
1. Definition of General Customer Terms and Conditions (general terms)
1.1. This document sets out the basic terms on which Locall Australis provides goods and services to customers.
They apply to every service Locall Australis supplies, and are called the “general terms”.
1.2. The General Customer Terms and Conditions are part of our “standard form of agreement? under section
479 of the Telecommunications Act 1997.
1.3. Extra terms may also apply in certain cases. These terms will indicate when extra terms will apply.
2. The parties
2.1 “We? or “Rivertel Pty Ltd? means Locall Australis, and “you? or “customer? means anyone that we supply a service to.
3. About services and categories
3.1. A “service? means any goods or service that we offer or supply. Each service may be briefly identified by its
“service description? for example: Hardware
3.2. A “category? is a group of similar services that we designate as a category for example: ADSL Broadband access service.
3.3. We may assign a service to more than one category.
4. About the category terms
4.1. We may publish extra terms that apply to a category of services (“category terms?).
4.2. Category terms are set out in another document, usually identified as Part 2A, Part 2B, and so on
4.3. Category terms only apply to the services in the category they relate to.
4.4. Category terms are also part of our standard form of agreement.
5. About the service terms
5.1. We may also publish extra terms that apply to a particular service (“service terms?).
5.2. Service terms may be set out in service information, or on an application form, or otherwise notified to you.
5.3. Service terms only apply to the service they relate to.
5.4. Service terms may include, or incorporate by reference, a service level guarantee.
5.5. Service terms are not part of our standard form of agreement, but they are part of our customer contract with you.
6. About pricing
6.1. We may charge you for our services in accordance with our price list.
6.2. We may change the price list by publishing a new one on our web site. A reference to “price list? means the current price list at any particular time. Page 2 Locall Pty Ltd General Customer Terms & Conditions
6.3. Changes take effect immediately. They have no effect on charges for services that have already been supplied.
6.4. In some circumstances, if we change our price list you may be entitled to cancel your customer contract early. Clause 13 explains this.
6.5. The price list is not part of our standard form of agreement, but it is part of our customer contract with you.
6.6. If a customer contract states that charges for the contract will be fixed for a certain period, or until a certain date, changes made during that period, or before that date, do not take effect until the end of that period, or until that date.
6.7. If a customer contract states that charges will be reviewed at certain intervals, we will not change or restructure charges for that customer contract more frequently than once per that interval.
7. About special terms
7.1. We may also agree with you that special terms will apply to our customer agreement with you.
7.2. Special terms only apply if they are in writing and we agree to them. For instance, they may be set out on an order form.
7.3. If we agree in writing to charge you on some other basis than the price list, that agreement is taken to be a special term.
7.4. Special terms are not part of our standard form of agreement, but they are part of our customer contract with you.
8. About our customer contract
8.1. When we supply a service to you, the terms and conditions of supply consists of:
8.1.1. these general terms – Part 1; and
8.1.2. any applicable category terms – Part 2; and
8.1.3. any applicable service terms; and
8.1.4. the applicable items in the price list; and
8.1.5. any applicable special terms.
8.2. Together, those terms and conditions and items are called the “customer contract?.
9. What if different parts of the customer contract conflict?
9.1. To the extent of any conflict or inconsistency between them, the parts of the customer contract have the following order of priority, from highest to lowest:
9.1.1. special terms;
9.1.2. price list;
9.1.3. service terms;
9.1.4. category terms;
9.1.5. general terms.
10. When does our standard form of agreement apply?
10.1. Our standard form of agreement is in force from midnight at the start of 1 October 2001.
10.2. If there was an existing fixed term contract to supply services to you when our standard form of agreement came into force:
10.2.1. the existing contract continues until the end of the fixed term; and
10.2.2. after that, our standard form of agreement applies.
10.3. If we enter a contract with you after 1 October 2001 that states that our standard form of agreement does not apply, then it does not apply to that contract.
10.4. Otherwise, our standard form of agreement applies to all services that we supply while it is in force.
11. Changes to customer contracts
11.1. We may change the terms of your customer contract, subject to this clause.
11.2. We may change any part of our standard form of agreement by amending the Official Copy.
11.3. We may change our price list by publishing a new one our web site.
11.4. We may change any other part of your customer contract, including our price list, by informing you of the change, but in the case of fixed term contracts we cannot change the price you pay until after the fixed term has expired.
11.5. If the Telecommunications Act 1997 or any other law requires us to comply with any steps or requirements before we change our standard form of agreement in a particular way, such changes do not take effect until we have complied with those steps or requirements.
11.6. You can change your customer contract at the expiration of the minimum term:
11.6.1. if we agree; and
11.6.2. if you give us 14 days notice prior to the commencement of the next billing month;
but we are not obliged to effect any change until the start of the next billing month after the expiry of your 14 day notice.
11.7. Otherwise:
11.7.1. changes to our standard form of agreement take effect when we change the Official Copy; and
11.7.2. changes to any other part of a customer contract take effect when we inform you of the change.
12. Locating the ‘Official Copy’ of our standard form of agreement
12.1. The “Official Copy" of our standard form of agreement (i.e. these general terms and service terms) is the copy published online at www.australis.net/conditions
12.2. The Official Copy is taken to be the current and accurate version of those documents at any time.
13. Some changes to your customer contract may entitle you to cancel it
13.1. If we change your customer contract, you may be entitled to cancel it early. But you only have that right strictly in accordance with this clause.
13.2. You may cancel your customer contract if:
13.2.1. we increase the charges that apply to it; and
13.2.2. the increase is not limited to passing on increases in costs that we incur to a third party or in government charges; and
13.2.3. the increase in charges would have increased your actual payments to us if it had applied from a date six months earlier; and
13.2.4. you give us written notice of cancellation within 30 days after we inform you of the increase in charges.
13.3. If you cancel a customer contract under clause 13.2:
13.3.1. the cancellation takes effect seven days after we receive your notice;
13.3.2. you must pay all charges that accrue before then; but
13.3.3. we will recalculate those charges to disregard the increase in charges, if you ask us to do so before you pay your final bill.
14. Rights and obligations that survive termination
14.1. When a customer contract or this agreement ends:
14.1.1. a right of action that arises from a breach that occurred before it ended survives;
14.1.2. charges for services delivered before it ended can be invoiced and recovered;
14.1.3. clauses 14, 19, 25, 33, 34, 39, 40 and 52 continue to operate; and
14.1.4. any other clause in the customer contract that indicates that the clause survives termination also continues to operate.
15. How do you order services
15.1. We may receive an order in any form we choose e.g. by written application or online.
15.2. You must comply with any ordering procedures that we specify e.g. if we ask you to use a particular order form, you must do so.
15.3. We are not obliged to accept any order.
15.4. You must ensure that you provide us with all the information we request in relation to your order and that the information you provide is correct.
16. What other terms, etc apply?
16.1 Except for things set out in express terms in a customer contract, and things that are implied by law and cannot be excluded, there are no other representations, promises, warranties, covenants or undertakings between the parties and customer contracts contain the entire understanding between us.
17. What if we supply a mixture of services?
17.1 If we supply a mixture of services, the special terms, prices, service terms and category terms that would apply to the different services if ordered separately apply to each of them individually within the mixture.
18. Charges, invoicing, payment, etc.
18.1. We may charge you, and you must pay us, in accordance with our price list.
18.2. Set up charges are payable on the first invoice which will be sent out upon completion of provision of service, unless said charges have been previously made
18.3. Periodic or repeating charges are payable from the date when we inform you that we are ready to supply the service, whether or not you actually make use of the service.
18.4. All other charges, including excess use charges, are payable on invoice.
18.5. When a customer contract is terminated or otherwise ends:
18.5.1. we may immediately invoice any accrued charges (but later invoicing remains effective);
18.5.2. our invoices must be paid immediately; and
18.5.3. we have a lien over any customer equipment for unpaid charges.
18.6. At our discretion, we may require payment of an advance deposit (or a Credit Card Authority) against future charges or out-of- pocket expenses. If we do, it becomes a condition of your customer contract.
18.7. We may vary the amount of advance deposit we require under clause 18.6 at any time.
18.8. We may invoice you whenever charges have accrued, but we normally invoice by “billing months?. A “billing month? is a calendar month, the first month will be pro –rated and include the portion of the first month and the access charges for the first full month of service.
18.9. If we hold your advance deposit, or Credit Card Authority, we may draw payment as soon as a charge has accrued
19. Payment of invoices
19.1. You must pay our invoices within 10 days by means of a payment method that we approve.
19.2. Apart from our other rights in case of non-payment, we may suspend any services and/or charge interest and/or a one off fee for late payment.
19.3. Interest will be calculated at the rate specified from time to time under the Penalty Interest Rate Act 1983 (Victoria), calculated daily.
19.4. If your payment is dishonoured then we may pass on our bank’s dishonour fees and a one off administrative fee to you.
20. Disputes – general
20.1. We always encourage dispute resolution by discussion, and we invite you to raise issues with us informally at first instance.
20.2 If you are not satisfied with the response that you received through your first interaction, we invite you to lodge a complaint through our complaints procedure.
20.3. In some circumstances, you may have a statutory right to refer a complaint or dispute to a third party e.g. the Telecommunications Industry Ombudsman. Nothing in your customer contract affects those rights, but we still encourage you to discuss issues with us before taking other steps.
21. Billing disputes
21.1. You may dispute charges in an invoice by written notice that:
21.1.1. you give to us within 14 days of the date of the invoice;
21.1.2. clearly identifies you and the invoice you dispute;
21.1.3. details the grounds of your dispute.
21.2. We will acknowledge your notice within 14 days.
21.3. You must still pay the disputed invoice by its due date. If we uphold your dispute, we shall credit your account within a reasonable time.
22. General disputes
22.1. If a customer contract includes a service level guarantee that deals with a dispute between us, the dispute must be dealt with according to that service level guarantee.
22.2. If you dispute an invoice, the dispute must be dealt with under clause 21.
22.3. Otherwise, if you have a dispute with us then you must notify us by notice in writing which must:
22.3.1. be given to us within 14 days of the date of the invoice;
22.3.2. clearly identifies you and the invoice you dispute;
22.3.3. details the grounds of your dispute.
22.4. We will acknowledge your notice within 14 days.
22.5. You must still pay all invoices by their due date.
23. Minimum terms
If a customer contract has a minimum term:
23.1. you cannot cancel it during the minimum term (except in specific cases where these terms say otherwise);
23.2. after that, either of us may cancel it by giving the other at least 30 days written notice (unless stipulated by your service agreement), ending at the end of a billing month; and otherwise
23.3. it continues until one of us cancels it.
23.4. Contracts without minimum terms have a two month cancellation period. Notification will be taken from the earliest date of either formal notification of termination or churn of services.
23.5 30 days notice is required in writing to terminate your agreement with us. Security Deposit (if any) is not refundable if; a) You have not met your minimum term, b) you do not provide us with 30 days notice of termination in writing.
24. Repeating terms
24.1. If a customer contract has a repeating term, it serially repeats for that term unless one of us gives the other written notice that they do not wish to repeat it.
24.2. If a notice under clause 24.1 is given less than a month before the end of the current term, it takes effect at the end of the next term, not the end of the current term.
25. GST
25.1. Except where express provision is made to the contrary, the consideration payable by the customer under this agreement represents the value of any taxable supply for which payment is to be made.
25.2. Subject to us supplying you with a valid tax invoice, if we make a taxable supply for a consideration, which represents its value, then you will pay, at the same time and in the same manner as the value is otherwise payable, (or, if for any reason that does not happen, without delay after we request you to) the amount of any GST payable in respect of the taxable supply.
25.3. Subject to us supplying you with a valid tax invoice, if this agreement requires you to pay, reimburse or contribute to an amount paid or payable by us in respect of an acquisition of a taxable supply from a third party, the amount required to be paid, reimbursed or contributed by you will be the value of the acquisition by us less any input tax credit to which we are entitled plus, if our recovery from you is a taxable supply, any GST payable under clause 25.2.
26. Will we provide support for services?
26.1. We will support a service as specified in the customer contract.
26.2. We are not obliged to support a service in any way that is not specified. For instance, unless a customer contract states otherwise, we are not obliged to provide:
26.2.1. on-site support;
26.2.2. software or hardware support; or
26.2.3. support outside business hours.
26.3. For a customer contract that includes a service level guarantee, we will provide support in accordance with it.
27. Acceptable Use Policies
27.1. You must comply with any AUP we publish, as amended from time to time.
27.2. We will not use an AUP as a “backdoor? way of changing the express provisions of a customer contract, or of imposing increased charges.
28. What are your other obligations?
You must:
28.1. supply, set-up, configure and maintain your own computer and communications equipment;
28.2. obtain any permit, licence or consent which you are required to have for the service to be provided;
28.3. be responsible for all data that you retrieve, store, transmit, or use in any other way;
28.4. back up all your data;
28.5. maintain the security of your password and user identification;
28.6. You must not:
28.6.1. do anything which will damage or interfere with our network or facilities;
28.6.2. do anything unlawful with a service;
28.6.3. share a service with any third party without our written consent; or
28.6.4. do anything with a service which may subject either you or us to a claim.
29. Your responsibility for use of your service
When we provide a service under a customer contract with you:
29.1. you are responsible, and must pay, for all use of that service, by you or anyone else; and
29.2. you are responsible, and must pay, for use by anyone else even if they used the service without your knowledge or authority.
30. How can we suspend services?
30.1. We may suspend service under a customer contract without notice and without any liability for loss and without prejudice to our rights under the customer contract or at law if:
30.1.1. we suspect that your service has been accessed without authority, or the integrity of your service has been compromised;
30.1.2. we suspect that your service has been used for unlawful purposes;
30.1.3. you have not paid money you owe us;
30.1.4. we consider it is necessary to protect our network;
30.1.5. you or a guarantor has an adverse credit report;
30.1.6. you are in breach of clause 18.6 or any other clause of your customer contract;
30.1.7. a governmental or law enforcement agency asks us to do so;
30.1.8. a wholesaler requires us to do so;
30.1.9. we consider that unless we do so, there is an unacceptable risk that there will be a breach of a law or of an agreement between us and a wholesaler; or
30.1.10. you have changed your contact details without informing us.
30.2. Suspension does not affect your liability for charges under your customer contract.
30.3. Unless the reason or circumstance that caused the suspension is resolved to our satisfaction within seven days, we may terminate your customer contract.
31. How can a customer contract be terminated?
31.1. A customer contract can only be terminated:
31.1.1. on notice by either party, given after its minimum term has expired. Such a notice takes effect at the end of the next billing month that occurs at least 30 days after the notice was given; or
31.1.2. in accordance with clauses 31.2, 24, or 23.4; or
31.1.3. in any other way that the customer contract allows.
31.2. We may terminate your customer contract/s immediately if you:
31.2.1. become insolvent;
31.2.2. are subject to an application for winding up;
31.2.3. are subject to any form of external administration or management;
31.2.4. fail to pay us money within 10 days of it being due;
31.2.5. breach a customer contract and fail to remedy the breach within seven days after receiving a notice requiring that it be remedied;
31.2.6. die;
31.2.7. have provided false or misleading information to us – and in any other circumstances where the customer contract allows us to.
31.2.8. are rude or abusive to staff members and it is considered by us that it would not be in the best interests of the welfare of staff members to continue to supply the services.
31.3. If we terminate a customer contract because you have breached it, you must pay us, on invoice, the charges that would have been payable under that customer contract if it had not been terminated until after any minimum term.
31.4. If you have more than one customer contract, and you breach one of them, you are in breach of all of them.
We can terminate any or all of your customer contracts, or exercise any other rights we have under a customer contract.
32. Warranties and liability
32.1. To the extent permitted by law we:
32.1.1. will provide services with reasonable care and skill but do not warrant that they will be provided without fault or disruption;
32.1.2. do not provide a service level guarantee or any guaranteed service level unless the customer contract states otherwise;
32.1.3. do not provide a warranty for hardware provided under a customer contract, but we will (where capable of assignment) assign the benefit of any manufacturer’s warranty to you.
32.2. Except for any express warranties in a customer contract, to the extent permitted by law we disclaim all express and implied warranties in relation to a service or a customer contract.
32.3. In the case of any breach of a customer contract, or any negligence for which we are responsible, or breach of a condition or warranty that legislation prohibits us from excluding (which condition or warranty shall accordingly be included), our liability to you will be limited, at our option, to:
32.3.1. if the breach or negligence relates to goods –
32.3.1.1. replacement of any goods involved or the supply of equivalent goods;
32.3.1.2. the repair of such goods;
32.3.1.3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
32.3.1.4. the payment of the cost of having the goods repaired; and
32.3.2. if the breach relates to services –
32.3.2.1. supplying of the services again; and
32.3.2.2. the payment of the cost (for the period of the breach) of having the services supplied again.
32.4. In no circumstances are we liable for any indirect, secondary or consequential loss or loss of income that you or anyone else may suffer.
33. Your indemnities
33.1. You indemnify us (on a full indemnity basis including all legal costs and expenses) against any claim, loss or damage we suffer to the extent that it arises from
33.2. any act or omission;
33.3. any breach of any law;
33.4. any breach of a customer contract or an AUP;
33.5. any unauthorised use of a service – by you or anyone using a service we provide to you.
34. Who is responsible for the safety of data and set up?
34.1. Unless a customer contract specifies that we will create a back up of any data and/or customised software set up of yours, you are solely responsible for ensuring that you have a complete, working back up of them.
34.2. We are entitled to assume that you have complied with clause 34.1.
34.3. You indemnify us against loss or damage that you or anyone else suffers as a result of damage to data or customised software set up on your computer system.
34.4. We are not obliged to provide you or any third party with historical data (e.g. material that used to be stored on our server).
34.5. You do not have any rights to any particular user identification, password, customer number, IP address, or any other thing which we may provide as part of a service. We can direct you to change these at anytime.
34.6. We are not required to store any email or data in accounts that are not active, and we are not responsible for any loss or damage because of this.
35. Matters you acknowledge
35.1. A customer contract may state that you acknowledge certain matters.
35.2. You must accept service from us subject to those matters, and none of them constitutes a defect in service.
35.3. You release us from all losses and claims in respect of, or out of, such matters or their consequences.
36. Will we monitor your system?
36.1. Unless a customer contract states otherwise, no service is provided on the basis that we will:
36.1.1. monitor your computer system or any part of it;
36.1.2.follow up or review any issue once it has been attended to;
36.1.34.update, upgrade or patch anything in future;
36.1.. notify or remind you about anything in future.
37. What if we supply equipment to you?
37.1. If we sell any equipment to you:
37.1.1. we retain title to and ownership of that equipment until it is paid for in full;
37.1.2. risk of loss or damage passes to you when it is delivered to your premises;
37.1.3. you must fully insure it from the time of delivery and maintain the insurance until you obtain title, and failing that until the equipment is delivered back to us;
37.1.4. you must not:
37.1.4.1. mortgage, charge or encumber the equipment without our written consent; and
37.1.4.2. loan, rent, licence, transfer or assign or part with possession of the equipment without our written consent.
38. What if our staff attend your premises?
38.1. If our staff attends any premises at your request, you must ensure that the premises are safe and free of risks to life, health or welfare.
39. What records may be kept?
39.1. We may make and keep any record that we reasonably require for the purpose of operating our business.
All such records are our sole property.
40. How must confidential information be treated?
40.1. Each party must treat the confidential information of the other party as confidential and commercially valuable and ensure that its representatives do the same.
40.2. You consent to us accessing your information and data for legitimate purposes to provide the service, improve the service or respond to complaints. The terms of clause 40.1 apply to this clause.
41. What laws must you observe?
41.1 You must observe all laws of Australia in relation to your use of our services.
42. Privacy
42.1. We may deal with your personal information in accordance with our privacy policy at www.australis.net/conditions as amended from time to time.
42.2. We may use your personal information for promotional and marketing purposes until you request to opt out of receiving such information.
43. What if there is force majeure?
43.1. We are not responsible for the consequences of force majeure.
44. How can we inform you of matters?
44.1. We can “inform? you of a matter under a customer contract:
44.1.1. by giving you a notice under clause 45; or
44.1.2. in any other reasonable way, such as orally.
45. How can we give you a notice?
45.1. Some laws (e.g. the Telecommunications (Standard Form of Agreement) Determination) regulate the way in which certain notices can be given. This clause is subject to any such laws.
45.2. We can give you a notice:
45.2.1. by emailing the notice (or a hyperlink to a web page that contains the notice) to:
45.2.1.1. the most recent email address you supplied to us; or
45.2.1.2. any australis.net, australisit.net, lis.net.au, ugl.com.au or worldoptions.com.au email address you have; or
45.2.1.3. to any email address whose mail server we host;
45.2.2. by fax to the most recent fax number you supplied to us;
45.2.3. by ordinary mail or hand delivery to the most recent postal address you supplied to us, or (if you are a company) to your registered office;
45.2.4. by hand delivery to you;
45.2.5. by sending the notice by SMS to the last mobile phone number you supplied to us;
45.2.6. by publishing the notice on our web site and sending you an alert about the notice (including its web site address) by SMS to the last mobile phone number you supplied to us;
45.2.7. in any other way permitted by law.
45.3. Any notice that we send you is deemed to have been received by you as follows:
45.3.1. if it (or a hyperlink to it) is emailed: one hour after it leaves our mail server;
45.3.2. if it (or a hyperlink to it) is emailed to any australis.net, australisit.net, lis.net.au, ugl.com.au or worldoptions.com.au email address that you may have: one hour after we send it;
45.3.3. if it is faxed: when our fax machine issues a successful delivery record;
45.3.4. if it is mailed: at 10 a.m: on the second business day after posting;
45.3.5. if it is hand delivered to you or your postal address or (if you are a company) your registered office: at the time of delivery;
45.3.6. if it is delivered in another way: at the time when it would have been delivered in the normal course of that way of delivery.
45.4. A notice from us need not be signed.
45.5. You consent to us using email for any notice under the Telecommunications (Standard Form of Agreement) Determination.
46. How can you give us a notice?
46.1. You can give us a notice:
46.1.1. by fax to the current fax number indicated by our web site contact details page;
46.1.2. by ordinary mail or hand delivery to the current postal address indicated by our web site contact details page.
46.1.3 by telephone through our customer service department and this will be evidenced by an ID number for the order of termination.
46.2. Any notice that you send us has no effect until we actually receive it. Even then, it has no effect:
46.2.1. if it is mailed: before noon on the second business day after posting;
46.2.2. if it is received outside business hours: before noon on the next business day;
46.2.3. if it is received after 3.00 p.m. on any day: before noon on the next business day.
46.3. A notice from you must be signed. We are never obliged to verify any mark that purports to be your signature. If you are a corporation, we are never obliged to verify the authority of anyone who purports to sign on your behalf.
46.4. Any notice that you send us must be in the English language.
47. What is the customer contact?
47.1. On our request, you must nominate at least one customer contact.
47.2. You must keep us informed of current and accurate contact details of your customer contact/s.
47.3. A customer contact must be contactable at all reasonable times.
47.4. We may deal with a customer contact on the basis that they are your representative and have your full authority.
47.5. A person remains your customer contact until we are given notice that they are no longer your customer contact.
48. How can rights be waived?
48.1 No right under a customer contract can be waived except by notice in writing signed by the party waiving it. If a party overlooks a breach by the other party on one or more occasions, it is not taken to have agreed to any future breach.
49. Can this agreement be assigned?
49.1. You may not transfer your rights or obligations under a customer contract to or share them with anyone without our prior written consent.
49.2. We may transfer our rights or obligations under this agreement to or share them with anyone on notice to you.
50. Can we obtain a credit check?
50.1. You authorise us to do the things set out in this clause 50 and acknowledge that we may do so, whenever we see fit for as long as a customer contract continues or you owe us any money.
50.2. We may use a credit report (within the meaning of the Privacy Act 1988 (Commonwealth)) on you to assess your creditworthiness or for debt recovery purposes.
50.3. We may give to a credit reporting agency any information we have about you to enable us to obtain a credit report.
50.4. We may exchange information about you with other credit providers or a credit reporting agency.
50.5. You acknowledge that we are authorised to do the things set out in this clause 50 under the Privacy Act
1988 (Commonwealth) and that to assess or review your creditworthiness, we may:(a) request a third party
to report about the your creditworthiness; and (b) disclose financial, credit and other information about you to any person.
50.6. You must cooperate with any enquiries that we make about your creditworthiness and provide any further information, consent or authority we reasonably require.
51. Are there restrictions on use of third party software?
51.1. If we provide any third party software to you, then:
51.1.1. we do so subject to the licence terms and conditions that apply to that software; and
51.1.2. you are solely responsible for ensuring the suitability and compatibility of the software.
51.2. If you use software not distributed or approved by us, you acknowledge that it may result in interference to the service or it may result in loss, which we are not responsible for;
52. Can the ADSL service be transferred to a different address?
52.1 All ADSL customer contracts are provisioned for the location that is provided by the customer when the service is activated. The service may not be transferred to another location. It will be necessary to cancel the service and reapply for a new service at the new location.
53. Severance
53.1. If any provision in this agreement is unlawful or inconsistent with any law, then to the extent of the unlawful nature or inconsistency, that provision may be severed from without affecting the remainder of the agreement.
54. What law applies to this agreement?
54.1. This agreement and any customer contract are governed by the law of New South Wales, Australia. Subject to clause
41, any legal proceedings relating to them can only be taken in courts with jurisdiction in New South Wales.
55. What if time expires on a holiday?
55.1. Anything that can or must be done on or before a day that is not a business day can be done on the next business day.
56. Who pays government charges?
56.1. You must pay stamp duty and other government charges in relation to a customer contract.
57. How is this agreement interpreted?
57.1 In this agreement or a customer contract, unless the context indicates otherwise:
57.2. Dictionary of Terms
Expression: means: AUP our Acceptable Use Policies
Base allowance a service use allowance below the amount that attracts excess use charges e.g. if an internet access service allows 2 GB in downloads before excess use charges apply, 2 GB is the “base allowance?
Billing dispute a dispute or difference between us as to whether you are liable to pay an amount that we have invoiced to you
Billing month has the meaning given by clause 18.8
Business day any day from Monday to Friday inclusive, excluding any public holidays observed in New South Wales
Business hours between 9.00 a.m. and 5 p.m. on a business day
Claim any demand, or allegation of liability, and all related costs, claims, demands, liability, damages, losses and expenses of any nature including all legal expenses suffered or incurred
Confidential information any information of a party which the other party knows or should know is confidential to the other party, for as long as it remains confidential, or would have remained confidential except for a wrongful disclosure by the first party
General terms this document
Credit Card Authority a written authority to debit your credit card (or a verbal authority to do so), in the form available on our website
Customer has the meaning given by clause 2
Customer contact a person/s nominated by you under clause 47
Customer equipment server/s and associated equipment and, where they are connected to telecommunications services provided by a carrier, those connections
Dictionary this table of defined terms
Direct Debit Authority a written authority to debit your bank account, in the form available on our website
Disputed amount in relation to a billing dispute means the amount within the relevant invoice that you dispute liability to pay
Excess use charge a charge for use of a service in excess of any base allowance
Fixed service fees fees for any service that apply on a once only basis, or on a periodic basis and are not variable based on data volumes as between periods
Force Majeure an event or circumstance beyond our reasonable control
General dispute any dispute or difference between us other than (a) a billing dispute or (b) a claim by us solely for the payment of money
GST GST within the meaning of the GST Act
GST Act A New Tax System (Goods and Services Tax) Act 1999 (as amended)
Loss any harm, losses or expenses of any nature whether direct or indirect, secondary or consequential suffered by you or anyone else
Manufacturer’s warranty a warranty given by the manufacturer or distributor of an item, or a person from whom we obtain an item for re supply
Minimum term a period that we specify as such
Office hours between 9 a.m. and 5 p.m. on a business day
Locall Australis Rivertel Pty Ltd ACN 147 945 686
Periodic fee a fee payable at regular intervals e.g. an amount per month
Personal information the same thing as in the Privacy Act 1988
Price list our published list of fees and charges from time to time
Customer contract the documents indicated by clause 8
Service description a guide or description we publish, describing a service we offer, as amended from time to time
Service terms has the meaning given by clause 5
Repeating term a period that we specify as such
Representative a delegate, authorised representative, employee or agent
Service any service that you request and we agree to supply, generally as described in a service description
Set up charge a charge that we describe as such, or any charge that we require to be paid in respect of the set up or establishment of a service
Undisputed amount in relation to a billing dispute means the amount within the relevant invoice that you do not dispute liability to pay
Wholesaler a third party whose services we utilise in providing a service to you
Shaped Plans:
Shaped plans apply speed shaping once download quota is exceeded within the monthly usage cycle. Usage for shaped plans is measured in monthly cycles from the anniversary of your connection with us. This does not necessarily coincide with the monthly billing date.
Peak / Off Peak Plans: The Peak / Off Peak plan range offers peak data, and off peak data. If off peak data allowance is exceeded, the excess will dip into the peak data allowance. All plans are speed shaped after the peak data allowance has been reached, regardless of the amount of off peak data used
57.3. Interpretation
57.3.1.. If an expression is defined in the dictionary in clause 57.2, that is what it means.
57.3.2. If an expression is defined in the dictionary, grammatical derivatives of that expression have a corresponding meaning. (For instance, if “to colour” means “to paint blue”, then “coloured” means “painted blue”.)
57.3.3. Headings and footnotes are only for convenience. They are to be ignored when interpreting the agreement.
57.3.4. A schedule to a document is part of that document.
57.3.5.. A reference to the singular includes the plural and vice versa.
57.3.6. Where one thing is said to include one or more other things, it is not limited to those other things.
57.3.7. There is no significance in the use of gender-specific language.
57.3.8. A “person” includes any entity which can sue and be sued.
57.3.9. A “person” includes any legal successor to or representative of that person.
57.3.10. A reference to a law includes any amendment or replacement of that law.
57.3.11. Anything that is unenforceable must be read down, to the point of severance if necessary.
57.3.12. Anything a party can do, it may do through an appropriately authorised representative.
57.3.13. Any matter in our discretion, including anything that we “may” do, is in our absolute and unfettered discretion.
57.3.14. Expressions in clause 25 in italics have the same meaning as in the GST Act.
57.3.15. Apart from the matters set out in black and white in a customer contract, we are not obliged to provide any service, and make no promise or representation, to you.
Wireless Broadband Terms of Service
Introduction
A. You wish to access Locall Australis’s 3G wireless broadband service as advertised or viewed at www.australis.net (“Service”).
B. The Service allows you to access the Internet and related data services from your computer via a wireless connection.
C. Locall Australis agrees to provide the Service to you on the terms and conditions set out in this Agreement as may be varied from time to time and published at (“Terms and Conditions”).
D. You acknowledge that your Application for Wireless services from Locall Australis and the physical activation of those services as detailed in the application, bind you to Locall Australis’s Terms and Conditions for a Wireless connection.
1. Provision of Service
1.1 Locall Australis will provide the Service and the Hardware (if applicable) to you in accordance with this Agreement.
1.2 Upon payment of any administrative fee notified by Locall Australis, you may change the Service you access to another 3G Wireless Broadband Plan.
2. What do you need to access the Service?
2.1 To access the Service you need:
(1) Equipment that complies with the Technical Requirements; and
(2) An Approved USB Wireless Modem; and
(3) An Approved SIM Card.
3. USB Wireless Modem
3.1 Subject to the 3G Wireless Broadband Plan you select:
(1) an Approved USB Wireless Modem may be supplied to you by Locall Australis to access the Service; or
(2) you may be required to purchase an Approved USB Wireless Modem from Locall Australis to access the Service.
3.2 If an Approved USB Wireless Modem is supplied to you by Locall Australis, you agree:
(1) Locall Australis owns the Approved USB Wireless Modem.
(2) You will take reasonable care of the Approved USB Wireless Modem.
(3) If the Approved USB Wireless Modem is damaged in any way, you will pay all costs incurred by Locall Australis in its repair or replacement under this clause, unless Locall Australis determines in its sole discretion that the damage was caused by fair wear and tear.
(4) If the Approved USB Wireless Modem is lost or stolen, you will pay all costs incurred by Locall Australis in its replacement under this clause.
3.3 If you purchase an Approved USB Wireless Modem from Locall Australis to access the Service, you will be responsible for the equipment from the time you receive it.
3.4 Subject to clause 7 of this Agreement, Locall Australis may require you to return the Approved USB Wireless Modem if:
(1) Locall Australis supply you with a replacement; or
(2) Locall Australis no longer provides the Service to you (including upon termination, suspension or alteration of the Service or your access to the Service).
3.5 If the Approved USB Wireless Modem is not received by Locall Australis within 14 days of a request by Locall Australis for its return, you will pay the Return Fee.
4. SIM card
4.1 Locall Australis will supply you with an Approved SIM Card to access the Service.
4.2 If an Approved SIM Card is supplied to you by Locall Australis, you agree:
(1) You will take reasonable care of the Approved SIM Card.
(2) If the Approved SIM Card is damaged in any way, you will pay all costs incurred by Locall Australis in its repair or replacement under this clause.
(3) If the Approved SIM Card is lost or stolen, you will pay all costs incurred by Locall Australis in its replacement under this clause.
4.3 You must:
(1) Keep the Approved SIM Card secure;
(2) Not remove the Approved SIM Card from the USB Wireless Modem (unless instructed to do so by Locall Australis);
(3) Only use the Approved SIM Card to access the Service;
(4) Not use the Approved SIM Card to access any other services (including voice calls or MMS). If you do so, Locall Australis may charge you at prevailing rates for your access to any other services and your access to any other services will be included in your Data Allowance;
(5) Not interfere with or impair the operation of the Approved SIM Card;
(6) Not duplicate the identity of the Approved SIM Card (including for the purpose of back up).
4.4 If you remove the Approved SIM Card from the Approved USB Modem or use it in another modem, Locall Australis may cancel your access to the Service without notice.
4.5 Locall Australis may require you to return the Approved SIM Card if:
(1) Locall Australis issue you with a replacement; or
(2) Locall Australis no longer provides the Service to you (including upon termination, suspension or alteration of the Service or your access to the Service).
4.6 If the Approved SIM Card is not received by Locall Australis within 14 days of a request by Locall Australis for its return, you will pay the Return Fee.
5. Fees
5.1 You must pay Locall Australis the Fees by the Payment Due Date.
5.2 Notwithstanding any other clause in this Agreement, Locall Australis may vary the Fees at any time during the term of this Agreement without notice. Any variation to the Fees will take effect on the first Payment Date after the date on which Locall Australis gives notice as published at www.australis.net.
5.3 You must pay the Fees by the Payment Method unless otherwise agreed by Locall Australis.
5.4 If you fail to pay the Fees by the Payment Due Date (or if your cheque is dishonoured or your credit card declined) , without limiting any other rights that Locall Australis has under this Agreement, including the right to terminate the Agreement, Locall Australis may:
(1) suspend your access to the Service until it receives payment of the Fees; and
(2) charge Interest on the Fees payable.
5.5 If Locall Australis suspends your access to the Service under this clause and you wish to be reconnected, you must pay the Fees, the Reconnection Fee and any Interest.
6. Goods and Services Tax
6.1 Unless expressly excluded, the Fees and any other consideration to be paid under this Agreement include any GST.
6.2 To the extent that any supply made under or in connection with this Agreement is a taxable supply and the consideration for that supply expressly excludes GST, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise paid or provided. A party’s right to payment under this clause is subject to a valid tax invoice being delivered to the recipient of the taxable supply.
6.3 To the extent that 1 party is required to reimburse or indemnify another party for a loss, cost or expense incurred by that other party, that loss, cost or expense does not include any amount in respect of GST for which that other party is entitled to claim an input tax credit.
7. Hardware
7.1 You will own the Hardware upon payment of the Hardware Fee.
7.2 If you have not paid the Hardware Fee, then you must return the Hardware to Locall Australis within 14 days of termination or expiration of this Agreement.
7.3 If any part of the Hardware is faulty at installation, you may request Locall Australis to provide you with new Hardware. Locall Australis will resume possession and ownership of the replaced Hardware. If Locall Australis determines that the replaced Hardware is not faulty, you will pay all costs incurred by Locall Australis under this clause.
8. Access to Network
8.1 You are responsible for any access to the Network through your User ID, whether the access was made by you or not.
8.2 In using the Service, you must not:
(1) Damage, interfere or modify the Network or any network connected to the Network;
(2) Give any other person access to the Network;
(3) Breach any law;
(4) Use Incompatible Products; or
(5) Infringe or interfere with any other person’s rights, including privacy and intellectual property rights.
8.3 You must:
(1) Comply with the Acceptable Usage Policy;
(2) Comply with all reasonable directions and instructions of Locall Australis in relation to your use of the Service, including any ‘take down’ notices brought to your attention by Locall Australis;
(3) Provide all information and assistance as is reasonably required by Locall Australis in order to enable Locall Australis to comply with its obligations with its agreements with third party carriers and suppliers; and
(4) Provide reasonable and safe access to your premises for any maintenance or repair services by Locall Australis or its agents or suppliers.
8.4 You may not access the Service or the Network overseas.
9. Disconnection from Network Access
9.1 In order for Locall Australis to provide fair access to all of its customers, Locall Australis may immediately and without notice disconnect the Service if you breach the Acceptable Usage Policy in any way.
9.2 Locall Australis does not guarantee that your Network access will be free from any other disruption but will, in good faith, make reasonable endeavours to allow you continuous access to the Service.
10. Suspend/Alteration of the Service
10.1 Subject to the Privacy Act 1988, Locall Australis may suspend or alter the Service or release any information, including your personal information, at any time in its sole discretion, with or without notice when:
(1) there is an emergency;
(2) any third party, including without limitation any of Locall Australis’s suppliers, carriers or contractors does any act or omission that affects the Service;
(3) it is reasonably likely that an act or omission by you will impair or adversely affect the quality or operation of the Locall Australis’s operations or the Network;
(4) you breach this Agreement or the Acceptable Usage Policy;
(5) the Network or any of Locall Australis’s facilities need to be repaired, modified or upgraded;
(6) Locall Australis thinks that suspension or alteration is necessary to prevent or stop any unauthorised access to the Network, unlawful acts or infringement of any other person’s rights;
(7) directed to by the Australian Broadcasting Authority under a ‘take down notice’; or
(8) there is any order, judgement, decree, determination or otherwise of any court or governmental agency that your access to the Service relates to material that is illegal, offensive, objectionable or in breach of a third party’s rights.
10.2 You must continue to pay the Fees if Locall Australis suspends your access to the Service.
10.3 Without limitation on any of Locall Australis’s other rights, Locall Australis may suspend the Service if you do not pay the Fees or any part of the Fees by the Payment Date.
11. Your Responsibility
11.1 You are responsible for:
(1) Informing yourself and seeking independent advice about your and Locall Australis’s rights and obligations under this Agreement;
(2) Being aware of any changes or variations that Locall Australis may make to the Terms and Conditions of which Locall Australis has notified by publishing at www.australis.net;
(3) Implementing appropriate anti-virus systems;
(4) All telecommunication expenses incurred by you in relation to the Service;
(5) Screening against any content or material that you find offensive or disturbing; and
(6) Acquiring any training or equipment needed to access the Service.
12. Acknowledgement
12.1 You acknowledge and agree that:
(1) Your access to the Service:
(a) will prevent you from using products or services that are incompatible with the Network;
(b) may cause disruption to other telecommunications services, including mobile services; and
(c) will depend on Network availability (e.g. if the Network is busy);
(2) Locall Australis’s obligation to provide the Service is subject to you meeting the Technical Requirements;
(3) Locall Australis may disclose your personal information to its suppliers and contractors for the purpose of providing you with access to the Service; and
(4) Locall Australis will communicate with you using Your Email. You agree to monitor Your Email regularly to retrieve and review Locall Australis communications.
13. Password
13.1 You must:
(1) protect the confidentiality of your password; and
(2) not disclose or allow anyone else to use your password.
14. Liability
14.1 You access the Service at your own risk, and without limitation, Locall Australis is not liable to you for any loss, cost, damage, injury or other claim (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect, of:
(1) any defect, error, deficiency or discrepancy in the Service including in form, content and timeliness of delivery;
(2) viruses transmitted through the Network;
(3) any material or content accessed through the Service, even if the material or content is obscene, offensive or pornographic;
(4) suspension, disruption or cancellation of the Service;
(5) inferior operation of the Service caused by congestion on the Optus 3G/HSPA network or any other reason; or
(6) any telecommunications expenses incurred by you in relation to the Service.
15. Warranty
15.1 To the extent that implied terms and can be lawfully excluded, Locall Australis excludes all implied terms from this Agreement.
15.2 In relation to implied terms that cannot lawfully be excluded, Locall Australis limits its liability to:
(1) providing the Service again; or
(2) paying the cost of having the Service provided again.
16. Indemnity and Release
16.1 You indemnify Locall Australis for any loss, damage, cost, expense or claim arising from your breach of this Agreement.
16.2 You release Locall Australis from any liability arising from:
(1) disruption of the Service;
(2) cancellation of the Service;
(3) suspension of the Service to a particular IP Address;
(4) cancellations or refusals to allow the use or your use of any Incompatible Products; and
(5) possible breaches of the Telecommunications Act (Customer Service Guarantee) Standard 2000.
17. Transmission Speed
17.1 You acknowledge that:
(1) the Transmission Speed is the maximum theoretical speed attainable at ideal conditions;
(2) the actual speed may be less than the Transmission Speed because of many factors, including without limitation Network congestion and third party carriers; and
(3) Locall Australis does not warrant that you will be able to obtain Transmission Speed at any time while accessing the Services.
18. Network Coverage
18.1 You acknowledge that:
(1) the Service is only available in areas covered by the Optus 3G/HSPA network;
(2) you are responsible for enquiring whether coverage is available in the area in which you want to use the Service. Locall Australis’s wireless coverage locator is published at www.australis.net.
18.2 In areas that the Service is available, Locall Australis does not guarantee that:
(1) The Service is available in each place within an area covered by the Optus 3G/HSPA network;
(2) ‘Drop-outs’ will not occur;
(3) There will be no delays in transferring data when switching between bearer networks;
(4) There will be no congestion on the Optus 3G/HSPA network.
19. Privacy
19.1 Locall Australis will treat your personal information in accordance with its Privacy Policy as published at www.australis.net/policies
20. Force Majeure
20.1 Locall Australis is not liable for any delay or failure to perform an obligation (other than to pay money) under this Agreement caused by:
(1) an act of God;
(2) war, riot, insurrection, vandalism, terrorism or sabotage;
(3) strike, lockout, ban, limitation of work or other industrial disturbance;
(4) power failures, communications failures, viruses, hacker attacks; or
(5) any law, rule or regulation;
(an “Event”).
20.2 The performance of Locall Australis’s obligations is suspended for the period of delay caused by an Event.
21. Term
21.1 The term of this Agreement is for the Minimum Term or, if renewed under clause 22, the Renewal Term, unless terminated earlier in accordance with clause 23.
22. Renewal
22.1 If, at least 30 days before the end of the Minimum Term or Renewal Term (whichever is applicable), you do not notify Locall Australis that you do not wish to continue the Service, this Agreement continues for the Renewal Term.
22.2 If you notify Locall Australis at least 30 days before the end of the Minimum Term or Renewal Term (whichever is applicable) that you do not wish to continue the Service, this Agreement ends at the end of the Minimum Term or Renewal Term (as the case may be).
23. Termination
23.1 Locall Australis may terminate this Agreement at any time after 1 months notice to you.
23.2 Locall Australis may terminate this Agreement if you have breached this Agreement and have not remedied that breach within 14 days notice from Locall Australis requiring you to remedy the breach.
23.3 If:
(1) Locall Australis terminates this Agreement under clause 23.2; or
(2) you terminate this Agreement before the end of the Minimum Term or Renewal Term (as the case may be)
you must pay Locall Australis the Early Termination Fee and all Fees payable for the balance of the Minimum Term or the Renewal Term (whichever is applicable) within 14 days of this Agreement terminating.
24. Severability
24.1 If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.
25. Entire understanding
25.1 This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement.
26. Assignment
26.1 You must not assign any of your rights or obligations under this Agreement.
26.2 Locall Australis may assign its rights and obligations under this Agreement at any time after 1 months’ notice to you.
27. Variation
27.1 Locall Australis may provide notice of its wish to vary any of the Terms and Conditions of this Agreement (“CE Variations”)
27.2 If you do not agree to the CE Variations, you must notify Locall Australis within 7 days of Locall Australis providing notice. If you do not notify Locall Australis, you are deemed to have accepted the CE Variations.
27.3 Notwithstanding your notice that you do not accept CE Variations, CE Variations take effect during the next Renewal Term after the date of Locall Australis’s notice under clause 27.1.
27.4 Except as provided under this clause or clause 5.2, this Agreement may only be varied by agreement in writing of the parties.
28. Notice
28.1 Any notice which Locall Australis must give under this Agreement may be:
(1) published at www.australis.net and will be treated as given to you on the date that it is published; or
(2) sent by email to Your Email and will be treated as given to you on the date that it is sent.
28.2 You must provide notice to Locall Australis at 244 Noalimba Ave Kentucky NSW 2354
29. Governing Law
29.1 This Agreement is governed by the law of New South Wales and both parties agree to submit to the jurisdiction of New South Wales.
30. Definitions
30.1 In this Agreement:
(1) Acceptable Usage Policy means the Locall Australis Acceptable Usage Policy as amended from time to time and published at www.australis.net/policies;
(2) Additional Download Fee means the fee payable by you as specified in the Service Schedule for all data uploaded or downloaded by you in a Session in excess of the Download Limit;
(3) Additional Time Fee means the fee payable by you as specified in the Service Schedule for all time in excess of the Session Time Limit;
(4) Agreement means this document, including the Service Schedule and any other schedule or annexure to it;
(5) Approved SIM Card means the SIM Card approved by Locall Australis and supplied to you by Locall Australis;
(6) Approved USB Wireless Modem means a USB Wireless Modem approved by Locall Australis;
(7) Locall Australis means the internet service provided by Locall Pty Ltd and includes Locall Australis ADSL Broadband;
(8) Data Allowance means the maximum data that you may upload or download each calendar month as specified in the Service Schedule;
(9) Download Limit means the maximum data to be uploaded or downloaded in each Session as specified in the Service Schedule;
(10) Early Termination Fee means the fee payable by you to Locall Australis as specified in the Service Schedule;
(11) Fees means all fees payable by you to Locall Australis for the Service as specified in the Service Schedule and includes the Monthly Fee, Additional Time Fee and Additional Download Fee;
(12) GST means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
(13) Hardware means the hardware that Locall Australis will provide to you as specified in the Service Schedule and may include the Approved USB Wireless Modem;
(14) Hardware Fee means the fee payable by you to Locall Australis specified in the Service Schedule;
(15) Incompatible Products means products or services that prevent or hinder Locall Australis’s ability to provide the Service to you;
(16) Interest means the interest payable on any late Fees calculated at the rate of 2% above the cash rate set by the Reserve Bank and published in the Australian Financial review on the Payment Date;
(17) IP Address means the internet protocol address assigned to identify your computer on the Network;
(18) Minimum Term means the period specified in the Service Schedule;
(19) Monthly Fee means the fee payable by you each calendar month for the Service during the Minimum Term or Renewal Term (whichever is applicable) as specified in the Service Schedule;
(20) Network means the telecommunications systems that is accessed through the Service including all links, cables, radio, microwave and other transmission media and equipment, switches, software and related items owned and operated by Locall Australis, its wholesale provider, Telstra, Optus or any other carrier or supplier of telecommunications services to Locall Australis;
(21) Payment Due Date means the dates on which Fees are due and payable to Locall Australis as specified in the Service Schedule;
(22) Payment Method means the method of payment set out in the Service Schedule and if more than one method of payment, any one of the methods set out in the Service Schedule;
(23) Privacy Policy means Locall Australis’s Privacy Policy as amended from time to time and published at www.australis.net/policies.
(24) Reconnection Fee means the fee payable to reconnect to the Service as specified in the Service Schedule;
(25) Renewal Term means the period for which the parties can renew the Agreement as specified in the Service Schedule;
(26) Return Fee means the fee determined by Locall Australis from time to time and published at www.australis.net;
(27) Session means each time that you access the Network;
(28) Session Time Limit means the time specified in the Service Schedule and is the maximum time that you may access the Network each Session;
(29) Technical Requirements means the technical specifications that you must meet in order to access the Service as specified in the Service Schedule;
(30) Transmission Speed means the maximum transmission speed available under the Service as specified in the Service Schedule;
(31) User ID means the logon identification provided by Locall Australis for access to the Network; and
(32) Your Email means the email address that Locall Australis provide you as part of the Service;
(33) 3G Wireless Broadband Plan means a plan published at www.australis.net for the provision of access to the Locall Australis wireless broadband service.