Terms and Conditions - Access Products

1. Our Services to you

(a) You agree to purchase and use the ADSL Products, ADSL Software and ADSL Services on these terms and conditions as amended from time to time in accordance with these terms and conditions.

(b) Unless we notify you otherwise within 10 days of the date of receipt by us of your application for the ADSL Products, ADSL Services or ADSL Software, we are deemed to have accepted your application on the date we receive it from you.

(c) We note that we reserve the right to refuse your application for the ADSL Products, ADSL Software and/or ADSL Services in our complete discretion and to require offline verification of your identity or authority.

(d) Our agreement will continue until the end of any fixed term set out in your application , or until this agreement is terminated in accordance with these terms.

(e) Without limiting any other provision of this Agreement, in the event that we need to suspend the ADSL Service or it is otherwise unavailable, we may provide you with access to Net Solutions's dial-up products on a temporary basis. If you chose to use the dial-up products you agree that your use of the dial-up products is subject to Net Solutions's general terms and conditions.

2. ADSL Service

(a) In order to receive the ADSL Service you must, at your sole expense ensure that you computer has, as a minimum, the following specifications:

(i) Windows 98/Macintosh OS8;
(ii) 64 MB Ram;
(iii) 500 MB Hard Drive;and
(iv) Ethernet Adaptor, if applicable, USB Port

(b) We will use reasonable skill and care in providing the ADSL Service but, to the extent permitted by law, the ADSL Service is provided without warranty that it is continuous or fault free.

(c) You must use appropriate measures to ensure the security of your account information, password, network and your data. If you have reason to suspect that the ADSL Service is being used contrary to this agreement, you must advise us as soon as possible.

(d) You agree not to connect any equipment other than;

(i) ADSL Products provided by us; or
(ii) a compatible product which must be approved by the Australian Communications Authority or otherwise authorised by the Telecommunications Act 1991, to any outlet installed for the ADSL Service.

(e) In relation to the provision by us of the ADSL Service:

(i) you warrant that you are over the age of 18 years, you are the legal lessee of the standard telephone service and the line to which your application relates, or that you have obtained the written authority of the legal lessee of that standard telephone service and line;

(ii) you agree that you will be liable for a cancellation fee in the event that the legal lessee terminates the standard telephone service;

(iii) you acknowledge that where you have asked us to supply the ADSL Service there may be a disruption to the relevant standard telephone service during ADSL Service provisioning;

(iv) you acknowledge that certain services incompatible with the ADSL Service may not be available to you while you obtain the ADSL Service;

(v) you acknowledge and agree that a third party is providing us with the ADSL Service and you hereby release and indemnify them and us from all liability to you arising from the following (for the extent that the liability is caused by the provisional cancellation of ADSL Service) and to the extent permitted by law:

(A) disruption in the PSTN services;
(B) cancellation of your ADSL Service;
(C) supervision of the provision of the ADSL Service to your IP address;
(D) cancellation of, or refusal to provide, all incompatible services; and
(E) possible breaches of the Telecommunications (Customer Service Guarantee) Standard in respect of you; and

(vi) you acknowledge and agree that third party installers may install the ADSL Service at your premises and you will provide all access to your premises reasonably required in this regard. To the extent permitted by law Net Solutions excludes all responsibility for such installation.

3. ADSL Products

(a) As part of the ADSL Service, we may provide you from time to time with the ADSL Products as set out below. You agree that you will use the ADSL Products in a responsible manner and only to access the ADSL Services.

(b) you are responsible for installing any ADSL Products we may provide to you and we exclude all liability for same to the extent permitted by law. You may request our assistance in relation to the installation of any ADSL Products, however, we will charge you for any installation of the ADSL Products.

(c) You must provide a suitable location for the ADSL Products. You must provide electricity and connection points for the ADSL Products at your own expense.

(d) If you do not own your own premises, you must use your best endeavours to ensure that the owner of the premises at which you wish to use the ADSL Products complies with these terms and conditions in so far as they relate to the premises. If the premises are sold, you must use your best endeavours to ensure that the purchaser agrees to observe the terms of this agreement.

(e) Any ADSL Products provided by us must be purchased from us for the price notified by us to you prior to your purchase. Title to the ADSL Products will pass to you from us only upon receipt by us of the full purchase price of the ADSL Product. All risk in the ADSL Products passes to you immediately on delivery to you or at the time title passes, whichever is the sooner.

4. Term

The initial term for supply of DSL service shall be for a period of 12 (twelve) Months unless otherwise stated. Some products have a term of 6 (six) months. Termination before the end of this minimum contract period will incur charges as outlined in clauses 10(d) and 10(e). After expiration of the Minimum Subscription Period, the agreement shall be renewed automatically on monthly terms, unless otherwise validly terminated pursuant to the terms of this contract. After the expiration of the Minimum Subscription Period, the Customer can terminate the service with 30-days prior written notice.

5. Other Services

(a) Net Solutions may make available to you other products and services in association with the ADSL Products, ADSL Software and ADSL Services. Supply by Net Solutions of any such additional products and services will be on the terms notified to you at the time of the supply of these products and/or services. By way of back up to the ADSL Products, ADSL Software and ADSL Service we may provide you with access to our Net Solutions dial-up products. This will be at your sole cost. You agree that any download limits that are applicable to your ADSL Service will carry over to your use of general Net Solutions products as if they were one and the same. You further acknowledge that Net Solutions general terms and conditions apply to your use of any dial-up products.

(b) As part of the ADSL Service Net Solutions may provide you with an email account. Our email service is important to both you and our other subscribers. In addition to the other terms and conditions in this Agreement, the following specific provisions relate to your use of our email service. Without limiting clause 7, you acknowledge and agree:

(i) to remove your email from our mail server promptly and to keep the space used by your files on our system below 10MB.

(ii) not to send a large amount of email message over a short period of time that may cause a delay in the normal rate of operation of Net Solutions's email system, and in this regard Net Solutions has the right to remove any and all of your email if your mail box space exceeds 10MB. We may make special arrangements with you in relation to storage of this email and may discuss same with you upon receipt of a request from you in writing.
We may delete from our server at our sole discretion any emails before it is sent in the event that a delay in the normal operation of Net Solutions 's email system is caused or potentially caused by you sending a large amount of email messages over a short period of time.

6. Your obligation to pay us

(a) In return for us providing these ADSL Products, ADSL Software and/or ADSL Services to you, you must pay us by their due date all the relevant fees, charges and costs notified to you and as may be amended by us from time to time ("Fees"). You acknowledge that these Fees may also include without limitation, disconnection, installation, download, upload and termination fees, and fees for account changes. We will use commercially reasonable efforts to notify you of any increase in these Fees from time to time.

(b) If you do not agree to pay those increased Fees you must, within 10 days of receiving that notice from us, notify us in writing that you do not accept the increase. Upon receiving that notice from you, unless agreed by us, your right to use the subject ADSL Products, ADSL Software and ADSL Services will cease. In the event that no other ADSL Products, ADSL Software and ADSL Services are then the subject of any agreement between Net Solutions and you, this agreement and any other applicable terms and conditions will immediately terminate. If we do not receive any notices from you in accordance with this clause and you continue to use the ADSL Products, ADSL Software and ADSL Services after 10 days from our initial notification, you agree that you are deemed to have consented to the increase in Fees.

(i) You are solely responsible for the use of the ADSL Products, ADSL Software and ADSL Services and for all payment of any Fees arising from same, whether or not the user has your authority.

(ii) Records held by us in relation to usage by or provision of your ADSL Products, ADSL Software and ADSL Services are prima facie evidence that you have used or ordered that ADSL Product, ADSL Software and ADSL Service as indicated.

(iii) You must pay fees either by credit card or by a direct debit arrangement entered into with us and the relevant financial institution.

(iv) Subject to clause 6(v) below, we will endeavour to bill you for your usage or our provision (as the case may be) of ADSL Products, ADSL Software and ADSL Services monthly in advance (and for any excess data in arrears) on the first day of each month if you are paying by credit card and by the 12th day of each month if you are paying by direct debit. Payment will be due on the 20th day of that month. If your account is not paid within 10 days of that due date, you agree to pay us a late payment fee on any overdue amounts on an invoice at the rate of 15% of the amount overdue, calculated from the due date to the date of actual payment. You agree this late payment fee is a genuine pre-estimate of the damage Net Solutions will suffer as a result of your late payment and is not a penalty. In addition, we may impose a charge on you to recover our reasonable expenses and costs incurred in enforcing any failure or delay in your payment and we may suspend your access.

(v) We may bill you for fees which have not been previously billed or which have been previously understated, but we will generally only exercise this right no later than 7 months after the unbilled or understated Fee was incurred.

(vi) You must pay any taxes, duties, stamp duties, imposts, levies or government charges relating to this agreement or the supply or usage of the ADSL Services, ADSL Software or ADSL Products including, without limitation any applicable GST amounts.

(vii) If your account is unpaid in part or in whole for a period of one month from the due date, we reserve the right to terminate your access to the ADSL Services, ADSL Software and/or the ADSL Products and, if after a further period of one month from the due date your account remains in whole or in part unpaid, refer your information to a debt collection agency or credit reference agency without notice to you. We also reserve the right to refer your information to a debt collection agency or credit reference agency in relation to this Agreement to obtain ADSL Products, ADSL Software and/or ADSL Services from us.

(viii) For the avoidance of doubt, you are responsible for the cost of any telephone calls or any other connections you make to access the dial up products including, without limitation, when the ADSL Products, ADSL Software or ADSL Services, are unavailable for any reason.

(ix) Without limiting clause 8 below, if you fail to pay your accounts for ADSL Products, ADSL Software or ADSL Services by the due date, we may refer your failure to any debt collection agency or other like body, in the event that you seek to reconnect to the ADSL Products, ADSL Software or ADSL Services, you acknowledge and agree that we may require that you initially pay at the time of reconnection such Fees as represent two months in advance for the ADSL Products, ADSL Software and ADSL Services to be acquired by you.

(d) We may from time to time, at our absolute discretion, provide you with credits in relation to ADSL Products, ADSL Software and ADSL Services supplied to you. In the event that we supply such a credit to you, these credits are not transferable, not redeemable for cash and will be applied by us against the next invoice provided to you, and subsequent invoices until such time as that credit is exhausted. If for some reason this agreement expires or is terminated prior to the exhaustion of the credit, no cash will be refunded to you in lieu of that outstanding credit. If you subsequently acquire other ADSL Products, ADSL Software or ADSL Services, or other Net Solutions products or services, that credit will not apply to those new products or services.

(e) If you exceed your monthly traffic allowance, excess data will be billed at the agreed rate. At billing you will be billed based on an estimation of your excess data over the month period. You agree this estimate may be revised after billing to reflect your actual usage for the month period if different from the estimate.

7. Your use of ADSL Products, ADSL Software and/or ADSL Services

(a) You agree that you will use the ADSL Products (including, without limitation any email account provided), ADSL Software and ADSL Services in a responsible manner, and in doing so, you will not, nor will you allow others to:

(i) distribute, publish, or provide any material that is defamatory, harassing, obscene or illegal under any applicable law, rule, regulation, standard or code of practice;

(ii) distribute, or provide use of material or intellectual property that you have no right to distribute, use, or provide;

(iii) menace or harass any person or incite violence or hatred or facilitate prostitution or paedophilia;

(iv) engage in any activity which is in breach of, or fail to comply with, any applicable law, rule, regulation, standard or code or practice;

(v) perform or facilitate the mass distribution of unsolicited material, except to people who have consented to the receipt of that material, and you must cease the mass distribution of advertising material to those people once that consent is withdrawn. For the avoidance of doubt this includes email generated from a domain that is linked to Net Solutions in any way including via virtual hosting, domain name services or domain registry information.;

(vi) engage in or fail to engage in any activity in a manner which will expose us or our suppliers to legal or administrative action, or which would bring us or our suppliers into dispute; vii. fail to comply with any rules imposed by any third party whose content or services you are accessing or using, or any policy adopted by us;

(vii) fail to comply with any rules imposed by any third party whose content or services you are accessing or using, or any policy adopted by us;

(viii) use the ADSL Products, ADSL Software or ADSL Services, or invite or direct persons to use the ADSL Products, ADSL Software and ADSL Services, to access any content which it is illegal to publish;

(ix) invade the privacy of others or alter the messages of others;

(x) fail to comply with our reasonable directions or acceptable use policies, or those of our suppliers, when using the ADSL Products, ADSL Software, or ADSL Services;

(xi) fail to clearly identify any material which is advertising or adult only material;

(xii) fail to maintain the security and confidentiality of any accounts, identifiers or passwords provided to you to enable you to use the ADSL Products, ADSL Software and ADSL Services;

(xiii) cause or help to cause the security or integrity of any ADSL Products, ADSL Software or ADSL Services or other linked systems or sites to be compromised whether by way of hacking, virus introduction or in any other way.

(b) In addition;

(i) you indemnify us, our employees, contractors and agents (including any third party providers of services, software or products), against any loss, costs or damage we may suffer as a result of the use of ADSL Products, ADSL Software or ADSL Services (whether by you or by use of your accounts, identifiers or passwords), or a result of a breach of any of your warranties to us or any other provisions of this agreement;

(ii) you indemnify us against any loss, costs or damages we may suffer as a result of your use of our email service;

(iii) your acknowledge that we have no control over any content accessible through use of ADSL Products, ADSL Software and ADSL Services and you have no claim against us in that regard;

(iv) you must, at your cost, ensure full, free, safe and timely access to any of your equipment or premises in order for us to provide the ADSL Products, ADSL Software or ADSL Services to you;

(v) you must promptly provide to us all assistance and information we reasonably require in relation to the supply of the ADSL Products, ADSL Software or ADSL Services to you and must not contact our suppliers regarding any faults or suspected faults with same without first obtaining our consent to do so;

(vi) you are responsible for providing any security or privacy you require for your computer networks and any data stored on those networks or accessed using the ADSL Products, ADSL Software or ADSL Services, and you agree that we will not be responsible for any damage caused by your failure to provide same; and

(vii) you must safeguard and not tamper with any equipment we provide to you.

(viii) Customer acknowledges they must contact Net Solutions and only Net Solutions in relation to anything concerning their ADSL service. If the customer attempts to contact any third party provider they will be liable to pay us an $80 charge.

8. Our rights

(a) We may, at any time and in our absolute discretion, suspend or disconnect your access to the ADSL Products, ADSL Software or ADSL Services, and monitor or intercept your use of the ADSL Products, ADSL Software or ADSL Services, including without limitation any messages you send or receive or data you store or access using those ADSL Products, ADSL Software or ADSL Services if we have reasonable cause to do so.

(b) We may review and delete the data stored using the ADSL Products, ADSL Software and ADSL Services, (including without limitation our email) in our absolute discretion, if we consider that data to be inappropriate, illegal, offensive or otherwise in breach of any law, standard, regulation, generally accepted standards of behaviour, or code of practice.

(c) Without in any way limiting any other provision of these terms and conditions, we may at any time, without notice, suspend your use or access to part or all of the products or services including, without limitation:

(i) for such time as is necessary for any maintenance determined by us to be necessary from time to time, and where possible, after giving you as much advance notice as is reasonably practicable in the circumstances;

(ii) to reduce or prevent interference with our systems or the use of products or services by others; or

(iii) if required to so, as a result of a direction from any government or other authority.

(d) Further to the terms above, you authorise us to obtain credit information from a credit reporting agency and information about your commercial activities or commercial credit worthiness from a type of business which provides that information to enable us to apply our credit policy. You also authorise us to obtain from you and give to any credit providers information about your credit arrangements. This information may include information about your credit worthiness, credit standing, credit history, credit capacity or other information that credit providers are allowed to give or receive from each other under the Privacy Act, 1988 (Cth) (as amended from time to time).

(e) You acknowledge that we may be obliged to provide assistance to law enforcement agencies in respect of your acquisition or use of the ADSL Products, ADSL Software and ADSL Services and that you will not make any claim against us in relation to that assistance.

(f) We may access and store certain content accessible using some of the ADSL Products, ADSL Software or ADSL Services (known as caching) for faster and easy access by you. That content is updated on a regular basis but there may be delays in that updating and therefore cached content accessed by you through the ADSL Products, ADSL Software or ADSL Services may not be the most up to date version.

9. Excluding our liability

(a) Other than in relation to personal injury, to the extent permitted by law we, and our suppliers, are not liable to you or anyone claiming through you for any loss or damage or costs sustained or incurred by you, your employees, contractors or agents or any third party, arising in any way in connection with this agreement or from your use of, or our provision of the ADSL Products, ADSL Software or ADSL Service or any ancillary product or service, including without limitation, arising from:

(i) any failure or delay by us to transmit data;
(ii) any failure or delay by you in receiving data;
(iii) any transmission or receipt of incorrect data;
(iv) any erasure or corruption of any data;
(v) any unauthorised access to your ADSL Products, ADSL Software and ADSL Services;
(vi) any content accessed using the ADSL Products, ADSL Software or ADSL Services found to be offensive, upsetting, inaccurate, misleading or defamatory.

(b) To the extent permitted by law, without limiting the above, in no circumstances will we, or our suppliers, be liable to you for consequential loss including, without limitation, loss of profits or loss of business.

(c) To the extent permitted by law, we, and our suppliers, exclude all warranties in relation to the ADSL Products, ADSL Software or ADSL Services or any ancillary product or service. Should we, or our suppliers, be liable to you, by virtue of any applicable statute, law, rule or regulation, for any loss or damage suffered, sustained or incurred by you under or in connection with this agreement, our total liability, and that of our suppliers, for any such loss or damage shall, to the extent permitted by law, be limited, at our, or our suppliers, sole option (as the case may be), to the cost of supplying again the goods or services in respect of which the damage was incurred or to providing, replacing, or repairing those goods or providing those services again.

10. Termination

(a) After the expiration of the Minimum Subscription Period, either party can terminate the service with 30-days prior written notice.

(b) Notwithstanding the above, we may immediately terminate this agreement in relation to any or all ADSL Products, ADSL Software and ADSL Services acquired by or provided to you if:

(i) you are in breach of any provision of these terms and conditions and you have not remedied that breach within 10 days of receiving notice from us;

(ii) you fail to pay any Fees by the due date or breach any of the provisions of clause 7 above;

(iii) immediately if a receiver, provisional liquidator, administrator or other like person is appointed over any of your undertakings or assets or if you enter into an arrangement with any of your creditors or any class of your creditors or you become insolvent or otherwise are unable to pay your debts when they fall due;

(iv) any agreement we may have with our suppliers for same is terminated or suspended.

(c) On termination, your rights to use ADSL Products owned by us, ADSL Software and ADSL Services cease. You must return to us any materials and confidential information owned by us that we may have provided to you in relation to the ADSL Products, ADSL Software or ADSL Services, and must pay to us immediately all outstanding Fees in relation to the ADSL Products, ADSL Software or ADSL Services and you are not entitle to any refund.

(d) Without limitation, you must pay to us the applicable termination fee to terminate this agreement within 12 months of the commencement date. You agree that this fee for early termination is a genuine pre-estimate of the damage suffered by us and is not a penalty.

(e) The Customer must pay the Service Fee for any minimum period of service specified in section 5. If Customer terminates this agreement, or is otherwise validly terminated pursuant to the terms of this contract, before the expiry of any minimum period, it must immediately pay the Service Fee for the remaining part of that minimum period.

11. Things beyond our control

(a) It is impossible for us to ensure that the ADSL Products, ADSL Software or ADSL Services are provided to you at all times or at any specific times or will be able to operate at all times error-free. We make no warranties to you in this regard.

(b) We will not be liable for any failure to fulfil any term of this agreement where that fulfilment is delayed or prevented, restricted or interfered with for any reason beyond our control, including but not limited to fire, storm, flood, earthquake, accident, labour dispute, materials or labour shortage, outages in telecommunications or radiocommunications networks, law or regulation or an act or omission of any third person.

12. Privacy

(a) You acknowledge and agree that we will hold information concerning you in a database. This database will contain among other things your name, address, telephone numbers, bank account or credit card details, billing details, information relating to the provision and use of the ADSL Products, ADSL Software and ADSL Services and any other information provided by you in connection with these terms.

(b) The information referred to above (other than bank account and credit card details) may be used to enable us to ensure that you perform your obligations under these terms and conditions, and to enable us to perform our obligations to you under this Agreement.

(c) We also may disclose the information to any related entity to us and the service provider for planning, research, or if required by law, or if required by the rules of the Stock Exchange and, if you give us your express consent, for the promotion and marketing (whether targeted, direct or indirect) of our products and services or the products or services of any service provider or any other company related to us.

(d) You consent to the collection, use and disclosure of the information as set out in this clause 12. This clause 12 will survive termination of these terms and conditions.

13. Confidentiality and Intellectual Property

(a) You must keep any information we provide to you, which is marked confidential or which you ought reasonably to know is treated by us or any of our suppliers as confidential, from disclosure to any third party and use that information solely for the purposes of using the ADSL Products, ADSL Software or ADSL Services. You consent to us obtaining urgent interlocutory relief to restrain any breach or anticipated breach by you of these confidentiality obligations.

(b) You acknowledge that all intellectual property rights obtained or provided by us and used in the provision of the ADSL Products, ADSL Software and ADSL Services are and shall remain our sole property (or that of our suppliers) and you shall do all such things as are necessary to perfect our, or our supplier's title to these intellectual property rights. You must return or delete from media all those intellectual property rights at our request. This clause 13, will survive termination of these terms and conditions.

14. General

(a) These terms and conditions applying to ADSL Products, ADSL Software or ADSL Services are the entire agreement between us in respect of the ADSL Products, ADSL Software or ADSL Services.

(b) You have not relied on any representation made by us in deciding whether to acquire the ADSL Products, ADSL Software or ADSL Services and you have relied on your own judgment in relation thereto.

(c) We may change or remove any of these terms and conditions at any time, including, without limitation, if there is a change to any law or regulations. We will use our reasonable commercial endeavours to notify you of these changes when they occur. If you do not agree to the variation of the agreement, you may terminate this agreement by written notification to us within 10 days of the date of our notice. If you have not terminated this agreement within 10 days and you continue to use ADSL Products, ADSL Software or ADSL Services afterwards, you agree that you are deemed to have accepted the variation.

(d) If we need to notify you of any matter, we may inform you by mail, facsimile, email, automated voice message or posting a message in the appropriate location on our system which includes, but is not limited to, posting on the world wide web on our homepage. Once we have posted online the email or other message, you are deemed to have received it. If we fax the message to you, you are deemed to have received it upon confirmation from our fax machine that the message was successfully sent. If we mail the message to them you are deemed to have received it two (2) days following the date that mail was delivered to the Australia Post system, correctly addressed and postage paid.

(e) Before resorting to any external dispute resolution mechanism, we and you shall attempt to settle any dispute in relation to this agreement within 25 business days of that dispute arising. You will not raise any dispute regarding Fees later than 5 months after the due date for that Fee. You will provide all reasonable assistance we may require in the event that any matter in dispute must be referred to one of our suppliers.

(f) You must not assign or attempt to assign any right or obligation under this agreement without our written consent. We may assign our rights or obligations, or subcontract or obligations without restriction.

(g) If part or all of any clause in this agreement is illegal or unenforceable, it may be severed from this agreement and this will not affect the continued operation of the remaining provisions of this agreement.

(h) These terms and conditions are governed by the law in force in Victoria Australia.