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Definitions
"The Provider"
means the company, its successors or assigns who supply Internet access
services.
"The Service" is the provision of the facility by the Provider to
allow the subscriber access to the Internet and provision of on-line
services.
"The Subscriber" is the legal entity or person who enters into
this agreement with the Provider.
"Access" means dial-up access to the world-wide computer network
known as the Internet through the Provider.
"Access Level" means the level of Access the Subscriber has agreed
to subscribe to under the Particulars.
"Fee" means that amount in respect of providing Access as
specified in the Particulars.
"Term" means the period of time from execution of this Agreement
until the expiration of the Access Term specified in the Particulars.
"Traffic" means the sum of all inbound and outbound data for the
Subscriber Access.
"Spam" means unsolicited and/or unwelcome advertising material or
information, usually sent via e-mail or newsgroup.
Grant of License
The Provider grants the Subscriber a license to Access the Provider's online
Internet Service ("the Service) in accordance with the provisions of
this Agreement.
Term
The Provider shall begin to provide the Service to the Subscriber as soon as
is practicable on or after a date to be set by the mutual agreement of the
Parties ("the Commencement Date").
The Service shall be provided to the subscriber on an ongoing basis once the
Subscriber has established an account with the Provider.
The level of Service Access shall be corresponding with that agreed to (see
Special Terms and Conditions).
Except as otherwise provided under this Agreement, the Provider shall
continue to provide the Service for a period of time set by the mutual
agreement of the Parties ("the Service Period").
Prior to the expiration of any Service Period, the Parties may agree to
continue the Service for an additional Service Period of duration to be
agreed by the Parties. Such agreement shall be subject to any variations in
the Terms and Conditions previously communicated between the Parties in
accordance with this Agreement.
Access shall be available 24 hours a day, seven days a week except during
operational faults or scheduled service times
Charges and Payment
The Subscriber agrees to pay any amounts levied pursuant to this Agreement
("Charges"), including but not limited to, Connection Fees, Access
Fees, Time Charges (if applicable) and Traffic (if applicable) as they fall
due.
Any Access Fees and Connection Fees levied by the Provider pursuant to this
Agreement are payable in advance of the Service Period. Where the term is
monthly the Subscriber must pay for the first two months Access in advance.
If the Subscriber supplies credit card details, the Subscriber authorises
the Provider to debit the credit card for all valid charges when they become
due (including Excess Traffic or time).
If the Subscriber fails to make payment to the Provider within the specified
time period then the Provider may immediately and without notice withdraw
Access to the Service.
The Provider reserves the right to vary the Fee and conditions associated
with the Access from time to time. The Provider shall give the Subscriber
one month's notice of any such variation.
The Subscriber may make payments of the Fee by use of cash, credit card,
money order, postal order, or any other payment method deemed
acceptable by the Provider.
Should the Subscriber continue to make use of the Service beyond the
expiration of the Service Period, the Provider shall be entitled to levy on
a pro-rata basis any applicable Charges relating to the Subscriber's
continued use of the Service.
The Subscriber agrees to fully compensate the Provider for any Goods and
Services Tax liability which may arise pursuant to this Agreement.
Unused time or data is not cumulative from month to month and is not
redeemable in any way.
If
Access is terminated under this Agreement for any reason whatsoever except
for reason of breach by the Provider of any of the Provider's obligations
herein, the remainder of the Fee in respect of the Term shall become due and
payable by the Subscriber to the Provider within seven days of the date of
termination.
All expenses in relation to the recovery of monies outstanding by the
Subscriber are to borne by the Subscriber.
All charges for the Service are at the rates published on paper and
electronically on-line (see clause 4.5 above).
The Fee for establishing a Subscriber account is not refundable.
The non-refundable fee for accessing the Service is applied to the
Subscriber's account periodically in advance, until the account is
terminated.
The establishment fee must be paid if a terminated account is to be
re-established.
Subscriber's
Undertakings
The Subscriber shall not use the Service in any manner involving illegal
activity. This includes but is not limited to illegal transactions or
illegal entry to unauthorised sites anywhere on the Intranet.
The Subscriber shall not use the Service, specifically e-mail and other
on-line communications, to harass, menace, upset, annoy or inconvenience any
person. Furthermore, the Subscriber shall not transmit any message using the
Service which is offensive, indecent or obscene.
The Subscriber shall maintain the confidentiality of passwords and other
access codes to the Service, and take reasonable precautions to avoid the
disclosure of these and other confidential information relating to the
Service.
The Subscriber shall not transfer their right to use the Service to any
other party.
The Subscriber shall not in anyway resell or redistribute the Service to
another party.
The Subscriber shall not use the Service to transmit unsolicited mail
commonly called Spam. As well, the Subscriber shall not forge email headers.
The Subscriber is expected to exercise good net-etiquette and refrain from
abusing the network.
The Subscriber agrees to comply with the Provider's Acceptable Use Policy
(as amended from time to time) and to comply with any reasonable requests
made by the Provider in relation to the Subscriber's use of the Service. The
Providers Acceptable Use Policy can be found on the Provider's website.
The Subscriber certifies that they have attained the age of 18 years and
agrees to provide proof of age should the Provider request such proof.
The Subscriber is solely responsible for supervising and/or restricting the
activities of any person under the age of 18 years whom the Subscriber
allows, by any act or omission, whether negligent or otherwise, to access
the Subscriber's account.
The Subscriber shall be solely responsible for any use of their account
whether this use is deliberate and/or negligent.
The Subscriber agrees to indemnify the Provider against any actions brought
against the Provider in respect of the Subscriber's actions brought against
the Provider in respect of the Subscriber's acts and omissions, including,
but not limited to, actions for defamation or breach of copyright arising
from such acts or omissions.
The Subscriber is solely responsible, at their own expense, to acquire and
maintain the necessary equipment, software, telecommunications services and
other such items and/or services as may be required to make use of the
Service.
The Subscriber is solely responsible for all costs associated with the use
of any telecommunications services required to make use of the Service,
including but not limited to, the cost of any telephone calls to the
Provider's facilities. While the Provider may from time to time offer
general guidance in good faith, it is the responsibility of the Subscriber
to verify this information directly with the supplier of such services.
The Subscriber hereby agrees that the Provider is not responsible for any
faults or error in the Subscriber's equipment and system or
telecommunication connection. No extensions of account Term, refunds or
reimbursements shall be given to the Subscriber due to such faults and
errors.
Provision of Service
The Subscriber undertakes and agrees with the Provider that the Provider
does not and cannot monitor or control the content and information accessed
via the Internet and the Provider shall not be held responsible in any way
for the loss for any content or information accessed via the Internet.
The Provider disclaims any and all liability for the contents of material
that the Subscriber may find inappropriate, offensive, inflammatory or adult
in nature.
The Provider shall not be responsible for any data which is stored on or
transmitted through its network.
The Provider reserves the right to deny Access to any potential Subscriber
at its absolute discretion.
The Service may be unavailable at times either due to scheduled maintenance
upgrades, operational reliability or due to factors beyond the Provider's
control. The Provider makes no guarantee as to the availability of the
Service at any time and shall not be liable for any claims against it from
the Subscriber due to the lack of availability of the Service. Nor shall the
Provider be held responsible for any loss or inconvenience suffered by the
Subscriber due to lack of availability of the Service. The Provider will use
its best endeavours to provide at least twenty four (24) hours notice of any
disruption to the Service. The Subscriber acknowledges that it may not be
possible for the Provider to supply any notice at all under some
circumstances.
The Provider may, without notice, deny or restrict Access to the Service at
any time should the Subscriber fail to make full payment of any outstanding
monies by the date on which such payment falls due.
The Provider may, without notice, deny or restrict Access to the Service at
any time should it reasonably believe that the Subscriber has failed to
comply with the terms of this Agreement or the Acceptable Use Policy.
Any advice provided by an employee of the Provider is provided in good
faith. Any Subscriber who acts on such advice does so at their own risk, and
indemnifies the Provider against any problems which may arise from acting
upon that advice.
The Service cannot be used by any individual or group of persons for any
activities of an illegal or fraudulent nature, including any activities
prohibited under the Australian Commonwealth Government Telecommunications
Act 1989.
All software supplied by the Provider is used by the Subscriber at their own
risk. The Provider will not be held liable for any damage to any software or
hardware resulting from the use of the software provided.
Termination
The Subscriber is responsible for giving written notice of their intention
to terminate this Agreement if the Service is not longer required.
Termination shall take effect from
midnight
on the last day of the current Service Period. Should the Subscriber choose
not to make use of the Service for the duration of the Service Period, they
shall not be entitled to any credit or refund for any unused period.
This Agreement shall remain in place until it is terminated by the Provider
by giving one month's written notice to the Subscriber or the contracted
Term has expired. The Provider reserves the right to terminate the Access
without notice if, in the opinion of the Provider the Subscriber misuses or
abuses the Access or has breached its obligation herein. What constitutes
misuse or abuse of the Access is determined by the Provider.
There shall be no refunds or reimbursements of charges and fees in respect
of early termination of accounts for any reason whatsoever.
Should a subscriber terminate their contract prior to the defined completion
date, an early termination fee of $110.00 will apply.
General
This Agreement constitutes the entire Agreement between the Subscriber and
the Provider and supersedes any prior arrangements.
All notices served pursuant to this Agreement or alterations to this
Agreement shall be notified in writing.
The Provider may vary this Agreement by providing the Subscriber with 30
days written notice of any such variations.
Limitation of
Liability
The Provider does not warrant that the Access will be uninterrupted or error
free, not does the Provider make any warranty as to the results obtained
from the Access. The Access is provided without warranties of any kind,
either express or implied, other than those warranties implied into this
Agreement by legislation and which cannot be excluded.
To the extent permissible by law, the Provider excludes all liability for
any direct, indirect, special or consequential damages arising out of the
supply or use of the Access or inability to effect the Access and where such
liability cannot be excluded the Provider limits its liability, at its
option, to the resupply of cost of resupply of the Access.
Force Majeure
The Provider shall not be liable for any breach of these Terms and
Conditions caused by an Act of God, national or local emergency, acts of
government, acts of war or civil disorder, military operations, industrial
disputes, fire, flood, lightning strike, weather damage, subsidence or
earthquake, or acts or omissions of persons or entities for whom the
Provider is not responsible.
Interpretation
Any reference to written notice or written authority within this Agreement
shall be construed to include communication by email between the Parties.
This Agreement shall be construed in accordance with the laws of
South Australia
and the parties shall submit to the jurisdiction of the Courts of South
Australia.
The headings contained within this Agreement are intended for ease of
reference only and do not form part of the Agreement between the Parties.
Execution
The Terms and Conditions of Service are deemed to have been executed and
agreed upon the Subscriber's use of the Service.
Fair Use Policy
In order to continue to offer competitive products and after discussions
with many customers, Comindico has decided to address the issue of disparity
by introducing a Fair Use Policy, effective
1 June 2004
.
The Comindico Residential DSL Service is delivered using network resources
that are shared across all users. As set out in the Service Schedule, there
is no explicit cap on the amount of data a user may download using the
Service but the Service is oversubscribed and contention-based. As it is
contention-based, the amount of bandwidth available for all users is
limited, based on the contention ratios that are applied. As such all users
must contend for the available bandwidth. In an ideal environment, all users
would obtain an equal percentage of the available bandwidth and users would
experience an equivalent percentage throughput experience.
Unfortunately, some users are able to work around the contention or simply
take very significantly more data than the average user on which the
contention ratio modelling has been done. Such users take a
disproportionately greater share of the available bandwidth and, as a
consequence, the majority of users suffer a diminished experience. The
statistics show that 5% of users download 40% of the total data downloaded.
These are our heaviest users. Unfortunately, they are having an adverse
impact on the experience of other users.
As such, Comindico has decided to introduce this Fair Use Policy. Under this
Fair Use Policy, users on flat rate plans who download more than the amounts
of data set out below may have their use of the Service restricted.
SERVICE TYPE DOWNLOAD MAXIMUM
FAIR USE PER CALENDAR MONTH
256/64 kbps 20 GB
512/128 kbps 30 GB
1.5M/256 kbps 50 GB
If a user downloads more than the
maximum Fair Use amount, Comindico may without notice slow the user’s
download rate to 64kbps until the end of the month in which the download
exceeds the maximum fair use. The month will be based on the anniversary of
the date on which the Individual Service was activated.
Service Suspension
There may be ocassions when VISP Internet is required to suspend the
provision to you of part or all of a service VISP Internet will be entitled
to suspend a service to you ( a) immediately and because of the urgency of
the need, without prior notice where (1) we are required to undertake the
repair, maintenance or service of any part of the network (or an
interconnected third party is required to undertake such work on its
network) to attend to any emergency.
(2) it is reasonably required to reduce or prevent fraud or interference
within the network (3) we believe it is necessary to comply with any law or
an order, instruction or request of government, the ACA, emergency services
or other competent authority.. (4) a Force Majeure Event occurs which
materially affect our ability to provide the service. (5) a breach of any of
the above conditions
Privacy Act 1988
The Customer and/or the Guarantor/s agree for the Seller to obtain from a
credit-reporting agency a credit report containing personal credit
information about the Customer and Guarantor/s in relation to credit
provided by the Seller.
The Customer and/or the Guarantor/s agree
that the Seller may exchange information about Customer and Guarantor/s with
those credit providers named in the Application for Credit account or named
in a consumer credit report issued by a reporting agency for the following
purposes:
(a)
To assess an application by Customer;
(b)
To notify other credit providers of a default by the Customer;
(c)
To exchange information with other credit providers as to the status
of this credit account, where the Customer is in default with other credit
providers; and
(d)
To assess the credit worthiness of Customer and/or Guarantor/s.
The Customer consents to the Seller
being given a consumer credit report to collect overdue payment on
commercial credit (Section 18K(1)(h) Privacy Act 1988).
The Customer agrees that Personal Data provided may be used and retained by
the Seller for the following purposes and for other purposes as shall be
agreed between the Customer and Seller or required by law from time to time:
(a)
provision of Services & Goods;
(b)
marketing of Services and or Goods by the Seller, its agents or
distributors in relation to the Services and Goods;
(c)
analysing, verifying and/or checking the Customer’s credit,
payment and/or status in relation to provision of Services/Goods;
(d)
processing of any payment instructions, direct debit facilities
and/or credit facilities requested by Customer;
and
(e)
enabling the daily operation of Customer’s account and/or the
collection of amounts outstanding in the Customer’s account in relation to
the Services and Goods.
The Seller may give,
information about the Customer to a credit reporting agency for the
following purposes:
(a)
to obtain a consumer credit report about the Customer; and or
(b)
allow the credit reporting agency to create or maintain a credit
information file containing information about the Customer.
Security And Charge
Notwithstanding anything to the contrary contained herein or any other
rights which the Seller may have howsoever:
Where the Buyer and/or the Guarantor (if any) is the owner of land, realty
or any other asset capable of being charged, both the Buyer and/or the
Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to the Seller or the
Seller’s nominee to secure all amounts and other monetary obligations
payable under the terms and conditions.
The Buyer and/or the Guarantor acknowledge and agree that the Seller
(or the Seller’s nominee) shall be entitled to lodge where appropriate a
caveat, which caveat shall be released once all payments and other monetary
obligations payable hereunder have been met.
Should the Seller elect to proceed in
any manner in accordance with this clause and/or its sub-clauses, the Buyer
and/or Guarantor shall indemnify the seller from and against all the
Seller’s costs and disbursements including legal costs on a solicitor and
own Buyer basis.
To give effect to the provisions of clause [(a) and (b)] inclusive hereof
the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate
constitute and appoint the Seller or the Seller’s nominee, na
mel
y EC Credit Control Pty Limited as the Buyer’s and/or Guarantor’s true
and lawful attorney to execute mortgages and charges (whether registerable
or not) including such other terms and conditions as the Seller and/or EC
Credit Control Pty Limited shall think fit in his/her/its/their absolute
discretion against the joint and/or several interest of the Buyer and/or the
Guarantor in any land, realty or asset in favour of the Seller and in the
Buyer’s and/or Guarantor’s name as may be necessary to secure the said
Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller
and further to do and perform all necessary and other acts including
instituting any necessary legal proceedings, and further to execute all or
any documents in the Seller’s absolute discretion which may be necessary
or advantageous to give effect to the provisions of this clause.
Special Terms
The Subscriber agrees to the contract length selected with regard to any
special ofers when filling in the registration form - either online or
hardcopy.
TERMS AND CONDITIONS OF INTERNET ACCESS
Access to VISP Internet
Pty Ltd is provided under the following terms and conditions. Failure to
comply with the following may result in the suspension or cancellation of
your account.
Unauthorised access (for personal or monetary gain) to the information or
services resident on the VISP Internet Pty Ltd WWW Server and/or any
Computer System accessible via VISP Internet Pty Ltd shall be deemed a
criminal act under the Computer Crimes Act of 1989. Breaches of the Privacy
of Communications Act of 1989 shall result in legal action being taken under
the Federal Telecommunications Act.
I agree that my access account is for my personal use or is for use by my
company, business, corporation, institution or department. Being in
authority, I accept full responsibility for any actions performed by those I
extend the use of this account to whilst having access to VISP Internet Pty
Ltd and the International Network (Internet).
I acknowledge and accept that my password(s) and/or my signature file(s)
have the
sam
e legal implications as if my signature is being applied to a legal and
binding document.
I agree to notify VISP Internet Pty Ltd immediately if I suspect or have
knowledge that any unauthorised person or persons have gained access, are
using, or have gained access to my Internet Account. Failure to notify VISP
Internet Pty Ltd will result in the immediate removal of my account and
related files from the VISP Internet Pty Ltd Server and possible legal
action being taken.
I accept that I may be exposed to explicit language and offensive material
while having access to the Internet.
I agree to be held completely responsible for the contents of the files and
information owned by mys
elf
and stored on the VISP Internet Pty Ltd server and network.
I accept full responsibility for any and all information, files or data I
transfer or cause to be transferred through the VISP Internet Pty Ltd server
and across the Internet.
VISP Internet Pty Ltd shall not be responsible for any or all files I have
stored in the VISP Internet Pty Ltd server. I absolve VISP Internet Pty Ltd
without reservation any legal responsibility.
VISP Internet Pty Ltd shall not be liable for the loss of privacy, incorrect
advise and/or information or any situation that shall arise in regard to mys
elf
or my property through my use of VISP Internet Pty Ltd and/or the services
provided thereon, nor for any or all consequential losses or damages.
VISP Internet Pty Ltd reserves the right to act in an appropriate manner
where there are grounds believing that malicious or unacceptable use of the
VISP Internet Pty Ltd computer system or network is occurring.
VISP Internet Pty Ltd reserves the right to change these terms and
conditions, vary subscription fees, access and/or the levels of service
without prior notice.
I agree, if paying by credit card, the signature on the application form
authorises VISP Internet Pty Ltd or it’s agents to debit the nominated
credit card account for the amount specified as the "Total
Payable".
In the event that I no longer wish to use the service, I accept that any
extra time or banked moneys remaining at the expiry of my account will not
be redeemable.
If you are under 18 years of age you are required by law to obtain
permission from your parent or guardian.
I have read and understood the above terms and conditions and hereby consent
to my child or ward having access to VISP Internet and the Internet.
I understand that there are busy periods that may make the use of an
automatic dialer program necessary in order to obtain Internet access.
Credit Card users are required to provide a minimum of
7 Days notice prior to cancellation of their account.
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