4. SOFTWARE

4.1 We may choose to provide the Modem Software and other Software to you for use with the Service.

Licence to use

4.2 We grant to you a revocable, non-exclusive, non-transferable licence to use the Modem Software and other Software subject to this paragraph 4 and any end user agreement provided with the software at the time of installation.

Restrictions on Use

4.3 Where we provide Software to you, you must:

(a) only use the Software (including storing, loading, installing, executing or displaying it on a computer) in conjunction with the Service and on the number of additional PCs corresponding to the number of any Additional Users you have requested. If you have requested Additional Users, we will give you the number of licenses that corresponds to the number of Additional Users requested;

(b) not copy, translate, adapt, modify, alter, decompile, disassemble, reverse engineer the Software or create any derivative works based on the Software or merge the Software with any other software;

(c) only use the Software in accordance with our directions from time to time;

(d) not sub-licence, assign, share, sell, rent, lease, supply, distribute or otherwise transfer to any person your right to use the Software;

(e) not alter or remove any copyright or other intellectual property notifications applied to the Software; and

(f) comply with the terms and conditions of any end user agreement provided with the software at the time of installation.

5. EQUIPMENT

5.1 We will provide you with the Required Equipment you order from us in your Application. This equipment may be new or ‘as new’. All risk in and title to this Required Equipment passes to you on delivery.

5.2 If we do not supply any or all of the Required Equipment to you, you will need to have purchased all of (or the remainder of) the Required Equipment before we can supply the Service to you. If you choose to supply some or all of the Required Equipment yourself for use with the Service:

(a) any such equipment, including ADSL modem and filters, must meet the requirements specified in the “broadband help” section of our “help and support” web page located on our website.

(b) the operation of the Required Equipment and any repairs to it will be your responsibility.

6. TELEPHONY DEVICES

6.1 Where a telephony device (such as a standard telephone, fax machine, answering machine, or dialup analogue modem) is attached to your ADSL Phone Line, you acknowledge that, in order to receive the Service:

(a) a filter is required on each telephony device; and

(b) a central splitter must be installed on your ADSL Phone Line if:

(i) a monitored security system (back-to-base) dials out on your ADSL Phone Line;

(ii) more than three telephony devices are connected to your ADSL Phone Line;

(iii) a wall mounted telephone is connected to your ADSL Phone Line; or

(iv) a mode 3 phone socket is connected to your ADSL Phone Line.

6.2 You must install any required central splitter hardware at your own cost and you will be responsible for the cost of any third party services that you may require in connection with such installation.

6.3 We will supply, at no additional cost, one filter with any ADSL Modem and any router which you purchase from us. You are responsible for the cost of any additional filters which may be required.

6.4 You acknowledge that failure to install, or to correctly install, the filter or central splitter can result in the Service being interrupted and/or the Service interfering with the operation of monitored security systems or telephony devices.

7 SERVICE CHARGES AND INVOICING

Service charges

7.1 You must pay the charges for the Service set out in the Pricing Schedule and any other charges set out in your Application and in accordance with any applicable provisions in the Pricing Schedule.

7.2 The charges for the Service will depend on the Service option and features and characteristics for each Service option selected by you in your Application.

Invoicing

7.3 We will invoice you for the charges for the Service in accordance with the Invoicing Period set out in the Pricing Schedule and selected by you in your Application, and any other terms set out in the Pricing Schedule.

7.4 In the first and last months of the Contract Term, we will only invoice you for usage charges incurred by you during those months, up to a maximum of the Monthly Service Fee otherwise payable for each of those months.

7.5 Some ADSL Pricing Plans have a Monthly Usage Allowance. If this applies to your selected ADSL Pricing Plan and you exceed the Monthly Usage Allowance we may invoice you for Excess Usage Charges for your Excess Usage.

7.6 Your invoice will be electronically mailed to the email address provided by you to us from time to time. Printed paper invoices requested by you will incur a monthly fee as specified in the Pricing Schedule or such other fee as notified by us to you from time to time.

Variation of charges

7.7 We may vary the charges payable for the Service at any time. If the intended variation is likely to have a significant detrimental impact on you:

(a) we will give you notice in writing of the intended variation at least 21 days prior to the date on which the variation takes effect; and

(b) you may cancel the Service, without incurring any Break Fee or other charge (other than those incurred by you prior to the date of cancellation) by giving notice to us within 21 days after the date that we give you notice under paragraph 7.7(a).

Commencement of charges

7.8 Service charges will accrue from:

(a) the date of ADSL Line Completion, where we provide you with the Hardware and/or equipment; or

(b) the date of ADSL Line Completion, where we have made a first delivery attempt to provide you with the Hardware and/or equipment; or

(c) the date of ADSL Line Completion, where you supply some or all of the Required Equipment yourself.

Payment

7.9 You must pay the charges for the Service:

(a) if you also elect to receive our Telephony Service, by direct debit payment from your nominated bank account; or

(b) if you have additional ADSL services that require payment by automatic debit on the same account as a service that allows flexible payment options, by direct debit payment from nominated bank account.

7.10 If payment by automatic debit is required, then you must pay the Service charges by direct debit payment from your nominated bank account. If you choose to provide us with your credit card details for the purposes of paying for the Service, we may:

(a) charge all fees to your credit card on a monthly basis from the applicable date referred to in paragraph 7.8;

(b) disclose your credit card details to, and obtain information from, any financial information or credit card issuer to verify the credit card details;

(c) take steps to verify that there is sufficient credit on your credit card account to meet likely fees; and;

(d) charge any Break Fee payable under paragraph 10 to your credit card immediately on notice of cancellation of the Service.

(e) Charge any additional Credit Card handling fee as set out in the price Schedule.

7.11 If your direct debit from your bank account payment or from your credit card is declined for any reason we may immediately suspend the Service after giving notice to you.

7.12 You must continue to pay the charges for the Service even if:

(a) your computer is not working;

(b) you actively cease using the Service for any reason in circumstances where the Service is available for use; or

(c) the Service is unavailable, or has limited availability, for an insignificant period due to a Network or system outage.

8. MONTHLY USAGE ALLOWANCE AND SHAPING

Monthly Usage Allowance

8.1 Some ADSL Pricing Plans provides a Monthly Usage Allowance that represents the maximum Usage that can be used at High Speed during a Anniversary Month (regardless of the number of days in that month).

8.2 Your Usage is reset to zero each month, commencing on the date you obtained the service the (“Anniversary Date”). Your amount of data Usage (measured in Megabytes) applies to Downstream data only. Upstream data Usage is not counted.

Shaping

8.3 If your Usage exceeds the Monthly Usage Allowance for any given Anniversary Month, then your access to the Service will be Shaped.

8.4 Your Service will remain Shaped until the commencement of the next Anniversary Month. Any unused Monthly Usage Allowance in any Anniversary Month cannot be rolled over into subsequent Anniversary Months.

Monitoring your Usage

8.5 We may notify you by email to your email address provided by you from time to time, when your Usage has exceeded the Monthly Usage Allowance. We reserve the right to monitor any additional Usage whilst access to your Service is Shaped.

8.6 An online Usage monitoring application is provided at our web page to allow you to view your Usage for the current Anniversary Month.

9. CANCELLATION, SUSPENSION AND VARIATION

Cancellation or suspension by us

9.1 We may, without liability, immediately suspend or cancel the Service if you breach (or we reasonably suspect you have breached) the terms of the SFOA. We will endeavour to give you notice of such suspension or cancellation.

9.2 Our rights to suspend or cancel the Service under this paragraph 9, or any other paragraph of this Service Description, are in addition to our rights to suspend or cancel the Service under the General Terms of our SFOA.

Cancellation by you

9.3 You may cancel the Service at any time by contacting us and verifying your identity but you may be required to pay a Break Fee in accordance with paragraph 9.4.

9.4 If you cancel the Service after ADSL Line Completion but before the end of the Contract Term, the Break Fees set out in Appendix 1 apply. You authorise us to debit these payments to your credit card or bank account within a reasonable time after receipt of a cancellation notice from you. We will credit any fees paid in advance by you against fees payable by you for another service supplied by us or a Related Entity to you.

Variations

9.5 You may vary a Service or an ADSL Pricing Plan to another Service or ADSL Pricing Plan within that range by:

(a) completing and submitting a new online application form located on our web page;

(b) if a plan change fee applies, paying the Plan Change fee as set out in Appendix 1; and

(c) paying the revised charges for the varied Service (if any) from the date of completion of the variation.

9.6 If you vary your Service of ADSL or Pricing Plan you are responsible for ensuring that the varied Service selected by you meets your requirements. We will not be liable for any loss, cost, damage or liability you may incur as a result of varying your Service.

9.7 If you vary your Service or ADSL Pricing Plan in accordance with paragraph 9.5, such variation will not effect the duration of the Contract Term.

10. ADSL PHONE LINE AND MOVING PREMISES

Cancellation or disconnection of your ADSL Phone Line

10.1 You acknowledge and agree that the Service will be disconnected from your ADSL Phone Line if:

(a) you relocate your ADSL Phone Line to a new address;

(b) changes are made to your ADSL Phone Line details (eg change of account holder name or change of service provider);

(c) your ADSL Phone Line is cancelled.

10.2 You acknowledge and agree that:

(a) unless we are your nominated service provider, any cancellation of your ADSL Phone Line is a matter between yourself and your nominated service provider, and we are not a party to this event;

(b) if you wish to have the Service reinstalled on your ADSL Phone Line, you are responsible for having your ADSL Phone Line reconnected at your own cost.

(c) if you fail to reconnect your ADSL Phone Line 7 days, you will be liable to pay the Break Fees referred to in paragraph 9.4;

(d) if you request us to reinstall or reprovision the Service on your ADSL Phone Line, you must pay us the reconnection fee specified in the Pricing Schedule;

(e) you must continue to pay all charges for the Service during Downtime where such Downtime arises due to the cancellation or disconnection of, or chang to, your ADSL Phone Line other than as a result of our fault or negligence.

Moving Premises

10.3 The Service may not be available from all locations. Accordingly, if you plan to move premises and relocate the Service to your new address, you must make a new Application and give us at least 14 days notice of your new address before you move.

10.4 If the Service is available at your new address:

(a) we may accept your Application and provide the Service at your new address;

(b) we will charge you a relocation fee as specified in the Pricing Schedule;

(c) you must start a new Contract Term for your Service even if your Contract Term for this Service at your previous premises has not yet expired; and

(d) you must pay the Break Fee applicable to the early cancellation of the Service as specified in the Pricing Schedule, if the Service is relocated to your new address within the first six months of the Contract Term.

10.5 If the Service is not available at your new address and you move before the end of the Contract Term:

(a) the Service will be automatically cancelled 14 days after you notify us in accordance with paragraph 10.3; and

(b) the Break Fees referred to in paragraph 9.4 will apply.

11. CUSTOMER SUPPORT

Fault reporting and rectification

11.1 If you experience a fault in respect of your connection to the Service, you can contact customer support by telephoning or emailing us.

11.2 We will use reasonable endeavours to rectify the fault within 1 full business day after you report a fault to us in accordance with paragraph 11.1. However, depending on the nature of the fault or location of services in non capital city areas, rectification may take longer. We provide customer support for connecting the Service to a single computer that meets the System Requirements. We will not provide customer support for the connection of additional computers (even if you have nominated Additional Users for the Service), networking devices or local area networks to the Service.

Warranty

11.3 We provide the Warranty Periods specified in the Pricing Schedule at no extra cost, with equipment we supply to you. The Warranty Periods do not apply where you have supplied your own modem or other equipment.

11.4 If you notify us of a fault with the ADSL modem or other Required Equipment we have supplied to you, within their respective Warranty Periods, we will, at our option, repair, replace or provide credit for the faulty item at no cost to you. However, if the fault was caused by:

(a) any equipment not provided by us (such as your computer);

(b) any interference caused by a Force Majeure Event;

(c) any interference with or modification to this equipment or a failure to use it in accordance with the manufacturer’s specifications or our instructions; or

(d) damage caused by you,

then we will charge you a fee, as specified in the Pricing Schedule, for the repair or replacement, including associated shipping and/or handling costs.

11.5 Outside any Warranty Period, the operation of the ADSL Modem and other Required Equipment we have supplied to you will be your responsibility. If we replace it, we will charge you the fee specified in the Pricing Schedule.

Software

11.6 We are not able to provide support for software not supplied by us, including software Downloaded from the Internet.

12. USE OF THE SERVICE

12.1 When using the Service you must comply with:

(a) our SFOA, including clause 4 of the General Terms, and this paragraph 12, and;

(b) any rules, including any acceptable use conditions, imposed by any third party whose content or services you access using the Service or whose Network your data traverses.

12.2 Any use of the Service at the Premises is your responsibility. The terms of our SFOA apply to you and also to anyone else who uses the Service (regardless of whether you give them permission to do so or not).

12.3 You must ensure that any software you use in relation to the Service is properly licensed.

12.4 The use of a Local Area Network (LAN) for personal use is permitted, however the set-up and configuration of a LAN connected to the modem is not supported by customer service.

12.5 All IP addresses provided by us for your use remain our property. Most Services include a dynamic IP address. A new IP address is usually allocated whenever the computer and modem is rebooted. The IP address remains until the next time the computer and modem is switched off. You must not configure your computer or modem to connect using a dynamic IP address. Where provided, you may configure your computer or modem to connect using a static IP address.

12.6 We may at any time adjust aspects of the Service for security or Network management reasons, including, without limitation:

(a) deleting transitory data that has been stored on our servers for longer than 30 days;

(b) deleting stored email messages that are older than 90 days;

(c) rejecting any incoming email messages and attachments that exceed 10 Megabytes (including encapsulation);

(d) delivering access and content via proxy servers;

(e) limiting the number of addresses to whom an outgoing email can be sent;

(f) refusing to accept incoming email messages to mailboxes that have exceeded the email storage limit;

(g) managing the Network to prioritise certain types of Internet traffic over others; and

12.7 You are responsible for providing any security or privacy measures for your computer networks and any data stored on those networks or accessed through the Service. We will not be liable to you in respect of any loss, damage, costs or expenses incurred by you in connection with your failure to provide that security.

12.8 You must take reasonable steps to ensure that others do not gain unauthorised access to the Service through your account. We recommend that you do not disclose your password to others and that you change your password regularly.

12.9 We may monitor use of the Service to investigate a breach (or suspected breach) of that policy or upon the request of an authorised authority. We do not have to monitor use of the Service, whether by you or anyone else. If we do so, we can stop the monitoring at any time. However, we are not under any obligation to enforce any other policy that applies to anyone using services that we provide to them.

12.10 Where you provide your own wireless computer connection device, you are responsible for any loss caused by an unauthorised interception of the Service.

13. YOUR ACKNOWLEDGEMENTS

13.1 You acknowledge that:

(a) the Service relies for its operation on content or services supplied by third parties, who are not controlled or authorised by us and we are not responsible for defamatory, offensive, indecent, abusive, menacing, threatening harassing or unsolicited material accessed or received by you; and

(b) we do not exercise any control over, authorise or make any warranty regarding:

(i) your right or ability to use, access or transmit any content (whether error-free, in time, or at all) using the Service;

(ii) the accuracy or completeness of any content which you may use, access or transmit using the Service including any data which we may store as part of the Service;

(iii) the consequences of you using, accessing or transmitting any content using the Service, including any virus or other harmful software;

(iv) any charges which a third party may impose on you in connection with your use of the Service; or

(v) the performance, results or characteristics of any Software supplied by us in connection with the Service.

14. DEFINITIONS AND INTERPRETATION

14.1 In this Service Description:

Additional User means a person (other than you) whom you nominate and authorise to use the Service.

ADSL Modem means an approved ADSL Modem.

Asymmetric Digital Subscriber Line or ADSL means the technology that allows the transmission of digital information at high bandwidths on twisted metallic pairs.

ADSL Line Completion means the date we notify you that your ADSL Phone Line is upgraded to utilise the Service, as determined by us.

ADSL Phone Line means your nominated telephone line used to deliver the Service.

ADSL Pricing Plan means a pricing plan for the ADSL Service identified in the Pricing Schedule.

Billing Month has the meaning set out in paragraph 8.2.

Broadband means a high-capacity communications pipeline capable of delivering a simultaneous range of services at speeds greater than conventional Dialup.

Download or Downstream means data that is inbound (i.e incoming to your internet connection).

Downtime means periods of unavailability or limited availability of Internet Access.

Early Termination Fee means a fee charged for disconnection of service within the initial fixed contract period.

Excess Usage means Usage over and above the Monthly Usage Allowance.

Excess Usage Charges means the fees payable for Usage over and above the Monthly Usage Allowance.

Full Service Qualification means the qualifications which your ADSL Phone Line must pass to support ADSL.

Hardware and/or Equipment means a kit containing all Required Equipment and Software ordered by you in your Application needed to connect to the Service

High Speed means data transmission speeds which are faster than conventional Dialup, as determined by us from time to time.

Initial Fixed Contract Period is defined as the number of full calendar months as set out in the Price Schedule after the first pro-rated month less than one full calander month has passed.

Modem Software means the software used and installed on a new customer’s computer during installation, as updated from time to time (including upgrades and manuals), and which is included when you purchase an ADSL Modem from us.

Monthly Service Fees means the monthly fee due to us from you for the Service, excluding Set-up Fees, Usage Fees and Excess Usage Charges.

Monthly Usage Allowance means the Usage that is provided per month in accordance with the ADSL Pricing Plan selected by you in your Application.

Required Equipment means:

(a) an ADSL modem;

(b) an Ethernet port/card to connect your computer to the ADSL Modem;

(c) a telephone wall socket to connect the ADSL Modem to your ADSL Phone Line;

(d) an approved filter for each telephony device; and

(e) any additional equipment that may be required for your particular computer and telephone requirements.

Set-up Fee means a once-off initial fee for setting up the Service.

Shaping means, where your Usage exceeds the Monthly Usage Allowance in any given invoicing month, the Download speed from the Internet will be slowed to the maximum speed applicable to the Service option selected by you, as specified in the Pricing Schedule.

Software means the Modem Software and any other software we supply to you for use in conjunction with the Service which may change from time to time, including any upgrades and manuals.

System Requirements means the pre-requisite computer hardware and operating systems software required for installation and customer support as specified on our support page on our website.

Traffic means all data that is Downloaded or Uploaded. Traffic may take the form of emails, web requests and web data, File Transfer Protocol (FTP) and other services. If you are connected to the internet then you are using Traffic. The Service option and/or ADSL Pricing Plan you select will determine how your Traffic with us is calculated and billed.

Upload or Upstream means data that is outbound (i.e outgoing from your Internet connection)

Usage means the amount of time generated or data Downloaded by your Internet access.

Usage Charges means the fees payable for Usage of the Service.

Warranty Period means the period referred to in paragraph 11.5 and specified in the Pricing Schedule

14.2 Unless otherwise stated, a reference to a paragraph is to a paragraph in this Service Description.

APPENDIX 1

BREAK FEES AND DOWNGRADE CHARGES

1. Break Fees are calculated in accordance with the following tables: