Terms and Conditions
This Agreement is between you and Communicate Web Services (ABN 64399530755) or any Related Entity which supplies the Service to you. Capitalised words used in these General Terms have the meanings set out in Clause 21. These General Terms are interpreted according to Clause 21.
1. OUR AGREEMENT
What is our "Agreement”?
1.1 Our Agreement sets out the standard terms and conditions on which we supply our services and products to our customers. Our Agreement comprises of the following sections:
(a) Section A - the General Terms which apply to all services and to all customers;
(b) Section B – Price and Service Descriptions which each set out our standard service description for a particular Service and specific terms and conditions which apply to a particular Service (for example, monthly fees for the Service, use and restrictions on use of the Service and customer support); and
If there is any inconsistency between any of the terms of our AGREEMENT, the order of precedence will be the Price and Service Description, the General Terms and the Pricing Schedule, except that clauses 16 and 17 of the General Terms always prevail over all other terms in our AGREEMENT.
Where can you obtain a copy of our AGREEMENT?
1.2 A copy of our most current AGREEMENT is available on our website.
Changes to Our Agreement
1.3 In this fast moving industry, we may need to change the AGREEMENT from time to time. This may be done without your agreement. However, rest assured that if we make any change which would cause detriment to you, at least 1month will lapse before the proposed change takes effect, either by publishing a notice on web site and/or notifying you directly. We may notify you by:
(a) mail (to the last address that you have given to us);
(b) email (to the last email address that you have given to us); and/or
(c) notice on our website.
You acknowledge that you have consented to the sending of such notices by us to you by email in accordance with clause 1.3(b).
1.4 If we make any change to our AGREEMENT which would cause detriment to you, you may cancel the Service without incurring any Break Fee or other charges (other than those incurred before cancellation), by giving notice to us within 1 month after the date we give you notice under clause 1.3.
2. YOUR APPLICATION FOR SERVICE
2.1 The Service that you have selected is described in the Price and Service Description applicable to the Service you have selected.
Making an Application
2.2 You may make an Application for supply of the Service to you by:
(a) completing and submitting an online application where available and located on our website;
(b) completing an application on paper where available and posting or faxing it to us.
2.3 Subject to our acceptance of your Application in accordance with clause 2.4, our AGREEMENT commences on:
(a) if you apply online, the date you submit the application form;
(b) if you sign an application form, the date you sign the application form;
(c) In any other case, the date on which the Service was provisioned ready for you to use, whether or not you use the service from that date.
Accepting your Application
2.4 When you request us to supply the Service to you under clause 2.2, (“Application”), we decide whether to accept your Application and to supply the Service to you based on:
(a) the particular terms for that Service;
(b) your eligibility for that Service;
(c) its availability to you;
(d) you meeting our credit requirements; and
(e) your prior conduct or history in respect of any previous supply of by us of any goods or services to you, including your compliance with the relevant terms and conditions under which we supplied those goods or services.
3. CONNECTING THE SERVICE
3.1 Some Services are available immediately and others have a provisioning time before they can be delivered. Where delivery is not immediate, we will keep you informed of the order progress form time to time.
3.2 We decide the route and technical means that we use to provide the Service.
3.3 You must reasonably co-operate with us to allow us to connect and supply the Service to you safely and efficiently.
4. USING THE SERVICE
Comply with all laws
4.1 In using the Service, you must comply with all laws and all directions by a Regulatory Authority and reasonable directions by us.
4.2 You must not use, or attempt to use, the Service:
(a) to commit an offence or to infringe another person’s rights;
(b) in any way which damages or interferes (or threatens to damage or interfere) with the operation of a Service or with the efficiency of our Network or a Supplier’s Network (including because you have inadequate capacity);
(c) in any way which makes it unsafe or which may damage any property or injure or kill any person;
(d) in an excessive or unusual way;
(e) to transmit, publish or communicate any material which is defamatory, offensive, indecent, abusive, menacing, threatening, harassing or unsolicited, or;
(f) otherwise misuse the Service, or allow anybody else to do so.
4.3 You are responsible for and must pay for any use of the Service, whether you authorise its use or not, and you will continue to be liable for all charges relating to any use of the Service if you allow another person to occupy the Premises or use the Service.
4.4 You acknowledge that we may be required to intercept communications over the Service and may (but are not obligated to) monitor your usage of the Service and communications sent over it for the purposes of ensuring your compliance with our AGREEMENT and our compliance with the law, and with any request or direction of a Regulatory Authority, an emergency services organisation or other competent
5.1 In order to use the Service, we may provide to you equipment or cabling which we own or lease (“Our Equipment”).
5.2 Where we provide Our Equipment to you in connection with the Service:
(a) ownership or title in Our Equipment is not transferred to you;
(b) risk in Our Equipment passes to you on delivery;
(c) you must comply with our reasonable directions relating to our rights of ownership of Our Equipment;
(d) you must only use Our Equipment in accordance with the manufacturer’s specifications and our written directions;
(e) you are responsible for Our Equipment and must pay us for any loss or damage to Our Equipment, except to the extent that it is caused by us or for fair wear and tear;
(f) you must not part with possession of Our Equipment except to us and you must keep Our Equipment free from any encumbrance;
(g) you must allow us to inspect, test, service, modify, repair, remove or replace Our Equipment, or to recover it after the Service is cancelled;
(h) you must ensure that Our Equipment will not be altered, repaired, serviced, moved or disconnected except by service personnel approved by us;
(i) you must ensure that you have all necessary consents and approvals (including landlord approval where applicable) necessary or desirable for us to deliver, install and maintain Our Equipment at the Premises; and
(j) you must provide adequate and suitable space, power supply and environment for all Our Equipment located on the Premises.
5.3 You must ensure that all equipment you use in connection with the Service, other than Our Equipment (“Your Equipment”) complies with all laws and relevant technical standards issued by a Regulatory Authority and all reasonable directions by us, including making any changes to Your Equipment to avoid any danger or interference it may cause.
Disconnection of Your Equipment
5.4 If you do not comply with any of your obligations under clause 5.3, we may disconnect Your Equipment from the Service or require you to do so. We will try to give you reasonable notice before disconnection but may do so immediately in an emergency.
5.5 You may purchase equipment from us for use in connection with the Service (“Purchased Equipment”). You must pay for that equipment on your receipt of the invoice from us. Title to the Purchased Equipment passes to you when you pay for it in full. Risk in the Purchased Equipment passes to you on delivery to your nominated delivery address.
5.6 We will use reasonable efforts to transfer to you any manufacturer's warranty in any Purchased Equipment, from the time title passes to you.
5.7 If you purchase the wrong equipment, you may exchange it provided that it is returned to us undamaged and complete with all components and with the packaging intact, within 14 days of delivery to your nominated delivery address. A return may also be subject acceptance by our supplier. A restocking fee will apply – please contact us prior to returning Purchased Equipment to determine the fee as it varies.
6. THE PREMISES
6.1 In order to provide the Service to you, we may need access to the Premises. You agree to provide us safe and prompt access to the Premises:
(a) to install any equipment for a Service you have requested;
(b) to inspect, test, maintain, modify, repair or replace any equipment; and
(c) to recover Our Equipment after the Service is cancelled.
6.2 If you do not own the Premises, you must obtain the owner’s permission for us to access the Premises and install and maintain any equipment. You promise to us that you have obtained that permission. You indemnify us against (and must pay us for) any claim the owner of the Premises makes against us relating to our entering the Premises or installing or maintaining any equipment at the Premises.
7. QUALITY AND MAINTENANCE
Standard of services
7.1 We aim to provide, but do not guarantee, continuous or fault-free services.
7.2 The relevant Price and Service Description sets out our maintenance commitments that apply to the Service. If you experience any fault with the Service, you may report that fault to us by completing an online Support Request.
7.3 We may conduct maintenance on any of our Network, equipment or facilities. We will try to conduct scheduled maintenance outside normal business hours but may not always be able to do so. We may also suspend the supply of the Service in accordance with clause 14.2(h).
Faults caused by You, Your Equipment or by other Suppliers
7.4 Before reporting a fault to us, you must take reasonable steps to ensure that the fault is not a fault in any of Your Equipment. We are not responsible for rectifying any fault in the Service where the fault arises in or is caused by another Supplier’s Network or by Your Equipment.
7.5 If you report a fault in the Service and ask us to come to the Premises to repair it and, once at the Premises, we determine that the Service is not faulty or the fault is associated with Your Equipment rather than the Service, we may charge you an incorrect call-out fee and, if you request us to repair Your Equipment, our reasonable charges for such repair. We will advise you of the incorrect call-out fee before we attend the Premises.
7.6 We can charge you for repairing a fault if it is caused by something you do (or do not do), or by something some else using the Service does (or does not do), intentionally, recklessly or negligently.
Maintenance of Your Equipment
7.7 You are responsible for the proper functioning and security of Your Equipment. You must maintain and repair all of Your Equipment used in connection with the Service.
8.1 The charges for the Service are set out in our Pricing and Service Description (or in the terms of an applicable Special Offer under clauses 8.5 and 8.6) and any additional charges are set out in your Application.
8.2 You must pay all charges for the Service in accordance with any applicable provisions of the Price and Service Description. Charges for the Service accrue from no later than the Service Commencement Date.
8.3 We may charge you an additional amount to service, modify, repair, or replace the Service or any equipment you use in connection with the Service, as a result of:
(a) a breach of our AGREEMENT by you;
(b) a negligent or fraudulent act or omission by you or by any of your employees, agents or contractors;
(c) a failure of any of Your Equipment; or
(d) a failure or fluctuation in electrical power supply, including where caused by an electrical storm.
8.5 From time to time we may make special offers (“Specials Offers”) in connection with the Service. These Special Offers may be notified in a general advertisement or specifically offered to you and may be subject to certain conditions, including a variation by us of the price or the terms of supply (including any Contract Term); or
8.6 You may accept a Special Offer in the way notified by us (which may include completing and submitting an Application). If you validly accept a Special Offer, the terms of that Special Offer will prevail to the extent of any inconsistency over those which would otherwise apply in our AGREEMENT, and will apply until the expiry of the Special Offer as notified by us. In all other respects, the terms and conditions of our AGREEMENT continue to apply. After the expiry of the Special Offer, the Special Offer pricing and terms will cease to be available and, unless we give you reasonable notice otherwise, the terms of our AGREEMENT will apply thereafter.
9. INVOICING AND PAYMENT
9.1 We may invoice you:
(a) for recurring or fixed charges;
(b) for variable charges;
(c) for installation or set-up charges;
(d) for any equipment you purchase from us; and
(e) for any other charges set out in your Application or the Pricing Schedule, in accordance with the Pricing Schedule or the Service Description.
9.2 We will invoice you in accordance with the invoice period described in the Price and Service Description. We can also issue an interim invoice at any time.
9.3 Invoices will be calculated by reference to data recorded, logged or received by us and our Suppliers and you acknowledge that in calculating charges we need only look at that data as recorded, logged or received by us or our Suppliers.
9.4 We try to include all charges relating to an invoice period on that invoice. Where that does not happen, invoices may include charges from previous invoicing periods.
9.5 We may reissue any invoice if any error is subsequently discovered. If you have overpaid as a result of a invoicing error, your account will be credited with the overpayment or, if you have stopped acquiring the Service from us, we will refund the overpayment promptly after your request and after deduction of any other amounts due by you to us or a Related Entity.
9.6 Subject to clause 10 (Invoicing Disputes), you must pay each amount invoiced by the due date specified in the invoice and in the manner specified in the Service Description or the Pricing Schedule.
Credit card and direct debit payments
9.7 Where available and if you choose to pay by direct debit or credit card, you must give us at least 14 days prior notice if you no longer wish to pay by direct debt or credit card.
No set-off, counterclaim or deduction
9.8 You must pay us without any set-off, counter-claim or deduction. However, if requested by you, when all Services acquired by you from us have been cancelled, we will set-off and apply any security deposit or advance payment held by us against any amounts payable by you to us under our AGREEMENT at that time, provided that the amount payable by you under our final invoice is not greater than the amount of the security deposit or advance payment. We can pay you amounts we owe you by deducting them from amounts you owe us.
Late or dishonoured payments
9.9 If you do not pay a invoice:
(a) by its due date, then we may charge you a late fee equal to $25 or 3% per month calculated on the daily balance of the unpaid amount from the due date until the date of payment in full; and
(b) in addition, you must pay our reasonable expenses and costs in recovering payment from you. We can also suspend or cancel the Service in accordance with clause 15.2(a).
9.10 If you pay an invoice:
(a) by direct debit and there are insufficient funds in the account; or
(b) by cheque and the cheque is dishonoured,
you will be required to pay an additional administration fee of $45 for each transaction that is dishonoured.
10. INVOICING DISPUTES
10.1 If you wish to dispute a charge in an invoice you must do so in accordance with this clause 10.
Invoice valid unless disputed
10.2 Except to the extent you raise a valid invoicing dispute in respect of an invoice issued by us, you agree that the invoice is valid and payable (and you must pay any undisputed amount included in the invoice in accordance with clause 9.6).
Raising a valid invoicing dispute
10.3 To raise a valid invoicing dispute, you must, within 2 months of the date of the invoice, make a good faith request to us in writing (post, fax or email) to investigate the specific charges or invoice in dispute and provide details which show that a particular charge or invoice is incorrect.
10.4 If you raise a valid invoicing dispute, then we will, within a reasonable time of your request, conduct investigations which are reasonably necessary and appropriate in the circumstances of the dispute. At the end of these investigations, if we reasonably determine that:
(a) there is an error in the invoice, we will issue a corrected invoice or adjustment note as appropriate and, if you have overpaid as a result of the invoicing error, credit your account with the overpayment or, if you have cancelled your Service with us, refund the overpayment promptly after deduction of any other amounts due by you to us or a Related Entity; or
(b) the invoice is correct, you must immediately pay any outstanding amount (together with interest on that amount calculated in accordance with clause 9.9(a) from the original due date for payment).
Claims to be made within 2 months
10.5 You may only make a claim or commence proceedings alleging that any charge or invoice is incorrect, or you are entitled to a refund for overpayment, if you do so within 2 months of the date of the invoice or overpayment.
Charges not expressed to be GST inclusive
11.1 If GST is imposed on any supply we make to you under our AGREEMENT and the charges, or other consideration, payable for the supply are not expressed to be inclusive of GST, you must pay to us an additional amount calculated by multiplying the value of that GST-exclusive consideration (without deduction or set-off) by the prevailing GST rate. We will issue a tax invoice to you for any supply on which GST is imposed. This clause applies if you ordinarily reside in a State or Territory within Australia.
Penalties and Interest
11.2 Where we become liable for any penalties or interest as a result of the late payment of GST due to your failure to comply with the terms of our AGREEMENT (including this clause 11) or your obligations under any applicable law, then you must pay to us an additional amount equal to those penalties and interest.
12. PERSONAL INFORMATION
Collection of your Personal Information
(a) you directly, when you provide information by phone or in application forms, or when you submit your personal details through our web sites;
(b) our employees, agents, contractors, or Suppliers;
(c) a Related Entity;
(d) a credit reporting agency, credit provider or fraud-checking agency;
(e) your representatives;
(f) other telecommunication and information service providers; and
(g) publicly available sources of information.
Disclosure of Your Personal Information
12.2 We may disclose Personal Information about you for the purposes set out in clause 12.3 to:
(a) our employees, agents or contractors;
(b) a Related Entity;
(c) Suppliers who need access to the Personal Information to provide us with services to enable us to supply the Service to you;
(d) a credit reporting agency, credit provider or fraud-checking agency;
(e) our professional advisers, including our accountants, auditors and lawyers;
(f) your authorised representatives or your legal advisers (for example, when requested by you to do so); or
(g) government and Regulatory Authorities and other organisations, as required or authorised by law
Use of your personal information
12.3 We may collect, use and disclose Personal Information about you for the purposes of:
(a) verifying your identity;
(b) assisting you to subscribe to our services and the services of Related Entities;
(c) providing the services you require from us and from Related Entities;
(d) administering and managing those services, including invoicing, account management and debt collection;
(e) conducting appropriate checks for credit-worthiness and for fraud;
(f) determining whether to provide to you (or to cease or limit the provision to you of) personal or commercial credit and the ongoing credit management of your account;
(g) researching and developing our services;
(h) business planning; and
(i) promoting and marketing our services, products and Special Offers to you and the products and services of Related Entities;
Access to Personal Information
12.4 If you are a natural person (i.e. an individual), you are entitled to access your Personal Information held by us, unless we are permitted or required by law to refuse such access.
Failure to supply Personal Information
12.5 If you choose not to provide all or part of the Personal Information we request, we may not be able to provide you with the Services requested by you, or we may refuse to provide, or limit the provision to you of, any Service or personal or commercial credit requested by you.
13. VARIATIONS TO THE SERVICE
Variations requested by you
13.1 If you request a variation to the Service and we, in our discretion, make that variation, then:
(a) revised charges may apply to the varied Service as notified to you by us.
Variations made by us
13.3 We may at any time vary the Service if reasonably required for technical, operational or commercial reasons. If doing so is likely to have a significant detrimental impact on your use of the Service, then:
(a) we will give you notice in writing of the intended variation at least 1 month before the date on which the variation takes effect; and
(b) you may cancel the Service, without incurring any Break Fee or other charges (other than those incurred before cancellation), by giving notice to us within 1 month after the date of the notice referred to in clause 13.3(a).
14. CANCELLING OR SUSPENDING THE SERVICE
Cancellation or suspension by us
14.1 We may, without liability, cancel the Service:
(a) if there is no Contract Term specified in your Application or the Service Description, at any time by giving 21 days notice to you;
(b) if a Contract Term is specified in your Application or the Service Description, at any time after the end of the Contract Term by giving 21 days’ notice to you; or
(c) if we reasonably determine that it is not technically or operationally feasible to supply the Service to you, at any time prior to the Service Commencement Date by giving you notice.
14.2 We may, without liability, immediately cancel, suspend or restrict the supply of the Service to you if:
(a) you fail to pay any amount owing to us by the due date, except that we may not do so in respect of an amount which is validly disputed in accordance with clause 10 until after we have completed the investigations referred to in clause 10);
(b) you breach a material term (other than a breach which separately gives rise to rights under this clause 14.2) and that breach is not capable of remedy;
(c) you breach a material term (other than a breach which separately gives rise to rights under this clause 14.2) and, where that breach is capable of remedy, you do not remedy that breach within 7 days after we give you notice requiring you to do so;
(d) you become bankrupt or Insolvent or appear likely to do so and we reasonably believe that it is unlikely that we will receive or retain amounts due and payable by you under our AGREEMENT;
(e) you vacate the Premises or you die, or in the case of partnership, on dissolution or on the filing of an application to dissolve the partnership and we reasonably believe that it is unlikely that we will receive or retain amounts due and payable by you under our AGREEMENT;
(f) a Supplier terminates its agreement with us, or ceases to supply services to us, and we are not able to provide the Service using services of an alternate Supplier on terms reasonably acceptable to us;
(g) there is an emergency;
(h) doing so is necessary to maintain, repair or restore any part of our Network or a Supplier’s Network used to supply the Service, or for other operational reasons;
(i) you breach clause 4 or clause 5.3 or your obligations relating to the use of the Service under the Service Description, or otherwise misuse the Service;
(j) we reasonably suspect fraud or other illegal conduct by you or any other person in connection with the Service;
(k) if we or a Related Entity is entitled to (or does) suspend, terminate or cancel any other service supplied to you, or is entitled to (or does) terminate any other agreement with you and we reasonably believe or suspect that you are a credit risk;
(l) we are required by law or in order to comply with an order, direction or request of a Regulatory Authority, an emergency services organisation or any other authority;
(m) providing the Service to you may be illegal or we anticipate that it may become illegal;
(n) a Force Majeure Event prevents the supply of the Service in accordance with our AGREEMENT for more than 14 days;
(po we reasonably believe a threat or risk exists to the security of the Service or the integrity of our Network or a Supplier’s Network;
(p) we reasonably believe or suspect that you are a credit risk; or
(q) we are allowed to under another provision of our AGREEMENT.
14.3 If we suspend the Service under clause 14.2, then we may later cancel the Service for the same or a different reason.
14.4 We may exercise our rights under clause 14.2 immediately by giving you notice, but:
(a) we will try to give you reasonable notice before exercising our rights under clause 14.2 by reason of the circumstances referred to in clauses 14.2(f), (h), (n) or (o);
(b) we may be unable to give you notice in the event of an emergency; and
(c) we will not be required to give you notice if we exercise our rights by reason of the circumstances referred to in clause 14.2(j).
Cancellation or suspension by you
14.5 You may cancel the Service without liability:
(a) if there is no Contract Minimum Term specified in the Price and Service Description or your Application, at any time by giving us the required number of days notice;
(b) if a Contract Term is specified in the Price and Service Description or your Application, at any time after the end of the Contract Term by giving us notice;
(c) at any time by giving us the required number of days notice if:
(i) we breach a material term of our AGREEMENT and that breach is not capable of remedy; or
(ii) we breach a material term of our AGREEMENT and that breach is capable of remedy but we fail to remedy that breach within 14 days after you give us notice requiring us to do so.
14.6 You may cancel the Service before the end of the Contract Term by giving written notice to us but you may be required to pay a Break Fee in accordance with clause15.3(b).
14.7 You may ask us to suspend the Service by giving notice to us. We will try to do so within a reasonable period.
15. CONSEQUENCES OF SUSPENSION AND CANCELLATION
Consequences of suspension
15.1 If the Service is suspended in accordance with our AGREEMENT, then you will not have to pay any charges for the Service while it is suspended. However, if the Service is suspended:
(a) by reason of the circumstances referred to in clauses 14.2 (a), (b), (c), (d), (e), (i), (j), (k), (l) or (r); or
(b) for an insignificant period as a result of the circumstances referred to in clause 14.2(h), you must pay all charges arising before, during and after suspension in accordance with our AGREEMENT.
15.2 If we reconnect a Service that has been cancelled, you may have to pay us a reconnection charge.
Consequences of cancellation
15.3 If the Service is cancelled in accordance with our AGREEMENT (other than in accordance with
clause 14.5(b) or (c)):
(a) before the Service Commencement Date, we can charge you any costs incurred by us in preparing to provide it to you; and
(b) during the Contract Term, then you must pay to us the Break Fee.
15.4 You acknowledge and agree that if the Service is cancelled before the end of Contract Term:
(a) we will suffer loss in connection with the cost of Network components no longer required to supply the Service after the cancellation;
(b) the Break Fee represents a genuine administrative cost we will incur as a result of early cancellation and is not a penalty;
15.5 If the Service is cancelled you still have to pay all charges incurred before cancellation.
15.6 In the event that there is credit remaining on your account at the time of cancellation, you will receive the credit via your listed credit card. We reserve the right to charge any associated merchant fees, as they are a reflection of the costs incurred by us to prepare the refund for you. If a cheque or other method of refund if required, a Handling Fee is payable.
15.7 On cancellation of the Service for any reason:
(a) you will, at your cost, immediately stop using and return to us, or allow us to remove, any of Our Equipment, equipment you have purchased but not fully paid for, or other material of ours (including any software) on the Premises or in your possession or control;
(b) unless our AGREEMENT expressly states otherwise, each person’s accrued rights and obligations are not affected;
(c) you must immediately stop using the Service; and
(d) the parts of our AGREEMENT which are by their nature intended to survive cancellation will continue unaffected, including clause 5 (Equipment), clause 9 (invoicing and Payment), clause 10 (invoicing Disputes), clause 11 (GST), clause 12 (Personal Information), this clause 15 (Consequences of Suspension and Cancellation), clause 16 (Our liability to You), clause 17 (Your Liability to Us),
clause 18 (Assignment and Subcontracting) and clause 19 (General).
16. OUR LIABILITY TO YOU
Personal injury and death
16.1 We accept liability for any loss, cost, liability or damage incurred by you (but excluding Consequential Loss) arising from personal injury or death to you or your Personnel to the extent it is caused or contributed to by our negligence in connection with our AGREEMENT.
16.2 We accept liability for our negligence in relation to supplying the Service if it causes damage to your property or equipment but only by repairing or replacing the property or paying you the cost of doing so.
Interruption to the Service
16.3 We accept liability to you for Interruptions to the Service to the extent that Interruptions are not caused or contributed to by Excluded Events but only by (at our option) repairing or replacing the relevant goods or resupplying any relevant or equivalent services which are capable of being resupplied or in either case paying you the cost of doing so.
Quality of service
16.4 Certain laws imply terms into contracts for the supply of goods or services that cannot be excluded (eg, that services are provided with due care and skill and goods are reasonably fit for their purpose and of a certain quality). If those terms are implied into our AGREEMENT and we breach them, we accept liability for the breach. Otherwise, we exclude all conditions and warranties implied into our AGREEMENT, and limit
our liability for any non-excludable conditions and warranties to resupplying, repairing or replacing the relevant goods or services where the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption and where it is fair and reasonable to do so.
Customer Service Guarantee
Suspending the service
16.6 We exclude any liability to you (whether based in contract, tort (including negligence), statute or otherwise) for suspending the Service where we do so in accordance with our AGREEMENT.
16.7 Our liability for any loss, cost, liability or damage suffered or incurred by you under or in connection with our AGREEMENT or the Service (whether based in contract, tort (including negligence), statute or otherwise) is reduced to the extent that your acts or omissions or your equipment (or the acts, omissions or equipment of a third person, including a Supplier) cause or contribute to that loss, cost, liability or damage.
16.8 We exclude any liability to you for any Consequential Loss suffered or incurred by you in connection with the supply or Interruption of any goods or services (including the Service) or with our AGREEMENT (whether based in contract, tort (including negligence), statute or otherwise).
Force Majeure Event
16.9 We are not liable for failing to comply with any of our obligations under our AGREEMENT if a Force Majeure Event occurs which prevents us from performing those obligations.
When we are not liable to you
16.10 We are only liable to you in the cases set out in this clause 16. Otherwise, we exclude any liability we might otherwise have to you in connection with our AGREEMENT or the Service to the extent that such liability is not expressly accepted by us under this clause 16.
17. YOUR LIABILITY TO US
17.1 If you and one or more others are the customer for a Service, each of you is jointly and individually responsible for all charges and other obligations relating to that Service.
17.2 You indemnify us against (and must pay us for) any loss, damage, cost or liability (including reasonable legal costs) we suffer or incur relating to:
(a) the use (or attempted use) of the Service; or
(b) equipment used in connection with the Service.
17.3 You must ensure that any person who you allow to use the Service, or to whom you ask us to supply the Service directly, complies with our AGREEMENT as if they were you.
19. ASSIGNMENT AND SUBCONTRACTING
19.1 You can assign or transfer legal responsibility for the Service if you obtain our prior written consent.
19.2 To the extent they are assignable, we may at any time assign:
(a) our rights under our AGREEMENT to any person;
(b) assign our obligations under our AGREEMENT to a Related Entity that is able to perform those obligations and, if that Related Entity undertakes to perform those obligations, we will be released from any further performance with effect from the date of transfer.
19.3 We may perform any of our obligations under our AGREEMENT by arranging for them to be performed by another person, including a Supplier or a Related Entity.
20.1 You and we each agree to keep confidential the other’s Confidential Information.
You and we will not use or disclose the other’s Confidential Information for any purpose, other than:
(a) to the extent necessary to perform obligations or exercise rights under our AGREEMENT;
(b) to the extent disclosure is required by law or a direction by a Regulatory Authority; or
(c) to professional advisors in connection with our AGREEMENT.
20.2 For clarity, we may refer to you as a customer of ours in our press releases, or in our marketing sales or financial material or reports.
20.3 A notice, approval or consent to be issued under the AGREEMENT must be in writing, except for variations by us. In the absence of evidence to the contrary, such notice, approval or consent will be taken to be received:
(a) if left at the address of the addressee, at the time it was left;
(b) if sent by ordinary post, on the third day after posting
(c) if sent by express post, on the next day; and
(d) if sent by facsimile or electronic transmission at the time when the machine on which the notice is sent, reports in writing that the notice has been transmitted satisfactorily.
(e) if sent by email to the invoicing email address or supplied email address held on record for the customer
20.4 If we have a right arising out of a breach by you of our AGREEMENT and we do not exercise that right, we do not waive that right, unless we do so in writing signed by us, or our right to insist on performance of that or any other obligation at any other time.
20.5 If a provision of AGREEMENT is void, voidable or unenforceable, it will be severed and the remainder of our AGREEMENT will not be affected.
20.6 Our AGREEMENT is governed by the laws of the State of Queensland in Australia and you and us agree to submit to the non-exclusive jurisdiction of the Courts of that State.
21. DEFINITION AND INTERPRETATION
21.1 In our AGREEMENT:
Application has the meaning set out in clause 2.4
Break Fee means the relevant cancellation fee or termination charge (if any) calculated in accordance with the Pricing Schedule, a Service Description or any appendix to the Service Description.
Confidential Information means of a person means all information of that person (“Owner”) of a confidential nature, which another person (“Recipient”) first becomes aware, whether before or after the date of the original Application, either through disclosure by the Owner to the Recipient or otherwise through the Recipient’s involvement with the Owner. Confidential Information does not include information:
(a) the Recipient creates (whether alone or jointly with any person) independently of the Owner’s Confidential Information;
(b) that is public knowledge (otherwise than as a result of a breach of confidentiality by the Recipient or any person to whom it has disclosed the information); or
(c) obtained without restriction as to further disclosure from a source other than the Owner through no breach of confidentiality by that source.
In respect of us, “Owner” and “Recipient” includes us and each Related Entity.
Consequential Loss means:
(a) loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages; and
(b) any penalties or fines imposed by a Regulatory Authority.
Contract Term means the minimum contract term specified in your Application, which commences on the Service Commencement Date, or, if no contract term is specified in the Application or our AGREEMENT, then there will be no minimum contract term.
Credit Information means:
(a) personal identifying particulars including your name, sex, current address (and your previous two addresses), date of birth, name of employer and drivers licence number;
(b) your application for credit or commercial credit – the fact that you have applied for credit and the amount;
(c) the fact that we are a current credit provider to you and any credit limit on your account;
(d) payments which are overdue by more than 30 days or for which debt collection action has started;
(e) advice that your payments are no longer overdue in respect of any default that has been listed;
(f) the fact that, in our opinion, you have committed a serious credit infringement (that is, acted fraudulently or shown an intention not to comply with your credit obligations);
(g) information about any payments, including cheques, credit cards and direct debits, which have been dishonoured;
(h) court judgments or bankruptcy orders made against you; and
(i) the fact that we have ceased providing the Service to you (and the timing of that cessation of service)
Credit Rating means information about your credit worthiness, credit standing, credit history or credit capacity that credit providers may give to each other under the Privacy Act 1998 (Cth).
Downgrade means a variation to the Service which reduces the capacity, use or utility of that Service and results in a reduction in the Regular Fees payable for the Service.
Downgrade Charge means the relevant downgrade charge (if any) specified in the Service Description.
Excluded Event means:
(a) a breach of our AGREEMENT by you;
(b) a Force Majeure Event;
(c) a negligent or fraudulent act or omission of you or any of your employees, agents or contractors; or
(d) a failure of any of Your Equipment.
Force Majeure Event means any event outside that person’s reasonable control, and includes a failure or fluctuation in any electrical power supply, failure of air conditioning or humidity control, electromagnetic interference, cable cut, fire, storm, flood, earthquake, accident, war, labour dispute (other than a dispute solely between that person and its own staff or staff under its control), materials or labour shortage, the change or introduction of any law or regulation (including the Telecommunications Legislation) or an act or omission, failure or delay of any third party or any failure of any equipment owned or operated by any third party (including any Regulatory Authority or Supplier).
Handling Fee means a fee incurred by us to provide you with a refund.
Insolvent includes having a receiver, manager, administrator, provisional liquidator or liquidator appointed to you, you entering into any scheme of arrangement with your creditors, a mortgagee entering into possession or disposing of the whole or any part of your assets or business. Interruption in the supply of goods or a service means a delay in supplying, a failure to supply or an error or defect in the supply of, those goods or that service.
Material Terms means those terms and conditions we read out to you over the telephone.
Network means a telecommunications network, equipment, facilities or cabling.
Personal Information means information or opinion about you from which your identity is apparent or can reasonably be ascertained and includes your name, current and previous addresses, service number, date of birth, email address, bank account or credit card details, occupation, driver's licence number and your Credit Information and Credit Rating.
Purchased Equipment has the meaning set out in clause 5.4.
Premises means locations at which we supply the Service, and locations to which we need to have access to supply the Service.
Regulatory Authority means the Australian Communications Media Authority, the Australian Competition and Consumer Commission, or any other government or statutory body or authority.
Related Entity means an entity that is related to Communicate Web Services (ABN 64399530755) in any of the ways specified in section 50 of the Corporations Act 2001 (Cth).
Service means the service requested by you in your Application and described in the relevant Pricing and Service Description, and any related goods (including equipment) and ancillary services provided to you by us in connection with that service.
Service Commencement Date means the date on which we notify you that the Service is ready for use.
Service Description means our standard service description describing the Service and setting out specific terms and conditions for the Service and set out in Section B of our AGREEMENT.
Special Offer has the meaning set out in clause 8.5.
Supplier means any supplier of goods or services (including interconnection services) which may be used directly or indirectly by us to supply the Service.
Our Equipment has the meaning set out in clause 5.1
Your Equipment has the meaning set out in clause 5.3
You, you means the customer who makes the Application and where two or more persons have applied, means those persons individually and every two or more of them jointly (and your will have a corresponding meaning).
We, us means Communicate Web Services, or any Related Entity which supplies the Service to you (and will have a corresponding meaning).
21.2 Unless the context otherwise requires:
(a) undefined words and expressions have the same meaning as in the Telecommunications Legislation.
(b) the expressions "we", “us”, “our”, "you" or "your" will include their respective successors and permitted assigns and novatees.
(c) a reference to a person includes a reference to a person, firm, corporation or other legal entity.
(d) a term which is defined in any part of our AGREEMENT has the same meaning in every other part of our AGREEMENT.
(e) the singular includes the plural and vice versa.
(f) different grammatical forms of the same word have the corresponding meaning.
(g) a reference to a clause is to a clause in the General Terms, unless otherwise stated.
(h) examples or words of inclusion are illustrative only and do not limit the generality of the relevant subject.
(i) a “reasonable” notice period means a period which is reasonable in the circumstances taking into account technical, operational and commercial issues.