Terms and Conditions

Part A – Introduction

1. About this document

  • These are Hello Broadband’s Customer Terms.
  • When we supply you with Telecommunications Products, our Customer Terms apply by agreement between us or, failing agreement, under section 479 of the Telecommunications Act.
  • When we supply you with non-Telecommunications Products, our Customer Terms apply as our standard terms of business.

2.  About us

Hello Broadband or ‘we’ means Simply NBN Pty Ltd ACN 617 211 640, trading as Hello Broadband.

Part B – Customer Contracts

3.  Your Customer Contract

We supply Service under a Customer Contract or Contract that includes:

  • this Part B,
  • the General Terms in Part C, and
  • any Service Schedule for the Service.

Service Schedules for our main Services are in Part D and following below.

4. Plans

  • Many Services are available under different Plans, each with its own features, entitlements, contract period, Charges and special conditions.
  • Your Contract also includes the terms of any Plan you select.

5. Periodic Entitlements

  • A Plan may include the right to use a certain amount of a Service during a certain period. We call these Periodic Entitlements.
  • Unused Periodic Entitlements do not carry forward and are not redeemable for cash or other credit.
  • If you exceed your Periodic Entitlement, extra Charges may apply or a Service may be limited in some way. Your Plan will give details.

6. Acceptable and Fair Use Policies

  • We may publish an Acceptable Use Policy and/or a Fair Use Policy for a Service or Plan.
  • An Acceptable Use Policy or Fair Use Policy will be directed against abusive, antisocial, illegal and/or grossly unreasonable use of a Service and/or our resources.
  • You must comply with an applicable Acceptable Use Policy or Fair Use Policy.

For additional information regarding our Acceptable Use Policies, please visit www.hellobroadband.com.au/legal or alternatively to obtain a copy of the applicable policy – write to our Customer Information and Compliance Officer at PO Box 151, Collins Street West, VIC, 8007.

7. Legal Compliance Policies

  • We may publish a policy directed to ensuring that the use of a Service complies with all Laws.
  • You must comply with such a policy.

8. Interacting with our staff

  • You must interact with our staff courteously.
  • You must not be rude to our staff.
  • You must not harrass or mislead our staff.
  • If you breach this clause in a serious way, or on more than one occasion:
    • we may make a written request that you comply with it; and
    • if you breach it again, you are in material breach of your Contract.

9. Operational Directions

  • Acting reasonably, we may give Operational Directions about a Service.
  • Operational Directions will be directed to the safety, security or reliability of Facilities, compliance with Laws or dealing with an emergency. We will only give an Operational Direction as and when reasonably necessary.
  • You must comply with an applicable Operational Direction.

10. Partner Requirements – General

  • Telecommunications services, including many of our Services, are commonly provided by means of Partner Facilities, provided by third party Partners.
  • Partners often have their own Partner Requirements for the use of their Facilities and we may only be permitted to provide Service to you subject to such Partner Requirements.
  • You must comply with applicable Partner Requirements we notify.
  • Where a Partner Requirement states that a Partner has a certain right or power:
    • the Partner itself may exercise that right or power; or
    • we may exercise the right or power on behalf of the Partner.
  • ACL Consumers If a new or amended Partner Requirement is materially detrimental to you, you may have Walk Away Rights under clause 57.

11. Fixed terms

A Plan may specify a particular, fixed or minimum term.  If it does:

  • A Contract for the Plan is a contract for at least that specified term.
  • Either you or we can terminate the Contract on or after the end of that specified term, by giving 30 days’ termination notice.

12. Month-to-month, casual or ‘no contract’ terms

If a Plan or Contract is described as month-to-month, casual or no contract or similar, you or we may terminate it on 30 days’ notice without penalty.

13. Exclusivity

  • Subject to clause 13(b), for as long as you acquire a Service from us for use in connection with a business, you agree not to acquire from any supplier other than us any Carriage Service that we are willing and able to supply to you.
  • If you require any additional Carriage Service, you must notify us, and if we are willing and able to supply it, you must acquire it from us unless we cannot provide pricing that is competitive with the pricing you can obtain from another supplier for an equivalent service, as evidenced by a written offer or proposal.

14. Price Matching

If your Contract is about to end or has ended, and you propose to acquire a new service from another supplier as a replacement for our Service to you, you must:

  • give us documented pricing offered or proposed to you by the other supplier; and
  • if we match or better that pricing within 5 Business Days, acquire the service from us.

15. Bundled Equipment

  • Under some of our Plans, you will be supplied with Equipment (eg a mobile handset or modem) without paying its full purchase price on delivery (Bundled Equipment).
  • Bundled Equipment may be:
    • free – in which case we absorb its full cost;
    • amortised – in which case you pay $0 up-front and we recoup the cost from you as part of Charges over a minimum term; or
    • subsidised – in which case we absorb part of the cost and pass the balance on to you, either by cash or amortised payment.
  • Clause 36(c) explains when ownership of Bundled Equipment passes to you.

16. Telecommunications Consumer Protections (TCP) Code

  • The TCP Code applies to consumer and some business customers, called TCP Customers in our Customer Terms. Refer to the Dictionary for the detailed definition.
  • A term or note in our Customer Terms headed ‘TCP Customers’ applies to you if you are a TCP Customer, but not otherwise.

17. Australian Consumer Law (ACL)

  • Some provisions of the ACL apply to individuals who enter Consumer Contracts (as defined in the ACL). We call those persons ACL Consumers in our Customer Terms. Refer to the Dictionary for the detailed definition.
  • A term or note in our Customer Terms headed ‘ACL Consumers’ applies to you if you are an ACL Consumer, but not otherwise.

18. ACL Consumers and Unfair Contract Terms

  • Our Customer Terms apply to a wide variety of customers and circumstances, and must reasonably protect our interests across that wide variety.
  • If you are an ACL Consumer, and a term of your Contract would (except for this clause) be unfair (within the meaning of section 24 of the ACL) we will not apply or rely on that term without also taking steps to appropriately mitigate any unfairness.
  • Those steps will be tailored to the particular situation, but may include eg offering you Walk Away Rights and a reasonable period to exercise them.

19. ACL Businesses and Unfair Contract Terms

  • Our Customer Terms apply to a wide variety of customers and circumstances, and must reasonably protect our interests across that wide variety.
  • If you are an ACL Business, and a term of your Contract would (except for this clause) be unfair (within the meaning of section 24 of the ACL) we will not apply or rely on that term without also taking steps to appropriately mitigate any unfairness.

19.2

  • Those steps will be tailored to the particular situation, but may include eg offering you Walk Away Rights and a reasonable period to exercise

19.3

  • This clause does not apply before 12 November

20. Consumer Guarantees

  • Under the Australian Consumer Law, consumers (as defined in the ACL) have the benefit of certain Consumer Guarantees:
    • that cannot be excluded; and
    • where the consumer’s rights in case of breach cannot be limited by your Contract, or can only be limited to a certain extent.
  • Your Contract never operates to exclude the Consumer Guarantees (where they apply) or to limit your remedies for breach of them (in a way not permitted by law).

21. New Zealand Fair Trading Act (FTA)

  • Some provisions of the FTA apply to individuals who enter FTA Consumer Contracts (as defined in the ACL). We call those persons FTA Consumers in our Customer Terms. Refer to the Dictionary for the detailed definition.
  • A term or note in our Customer Terms headed ‘FTA Consumers’ applies to you if you are an FTA Consumer, but not otherwise.
  • To the fullest extent allowed by law, we exclude all rights and remedies that would otherwise apply under the FTA.

22. New Zealand FTA Consumers and Unfair Contract Terms

  • Our Customer Terms apply to a wide variety of customers and circumstances, and must reasonably protect our interests across that wide variety.
  • If you are an FTA Consumer, and a term of your Contract would (except for this clause) be unfair (within the meaning of the FTA) we will not apply or rely on that term without also taking steps to appropriately mitigate any unfairness.
  • Those steps will be tailored to the particular situation, but may include eg offering you Walk Away Rights and a reasonable period to exercise them.

23. New Zealand CGA Consumer Guarantees

  • Under the CGA, consumers (as defined in the CGA) have the benefit of certain CGA Consumer Guarantees:
    • that cannot be excluded; and
    • where the consumer’s rights in case of breach cannot be limited by your Contract, or can only be limited to a certain extent.
  • Your Contract never operates to exclude the CGA Consumer Guarantees (where they apply) or to limit your remedies for breach of them (in a way not permitted by law).
  • To the fullest extent allowed by law, we exclude all rights and remedies that would otherwise apply under the CGA.

24. Understanding and navigating our Customer Terms

  • Expressions used in our Customer Terms are explained in the Dictionary in clause 114.
  • Rules for interpreting other expressions in our Customer Terms are set out in clause 113.
  • The Index is at the end.

Part C – General Terms

25. Application for Service

  • You must comply with any application form or process we specify.
  • All information you provide in connection with an application must be true, correct, complete and not misleading.

26. Processing an application

  • We do not have to accept an application.
  • Before we confirm that we can and will provide Service, if you take any step (eg terminating a service from another supplier) on the assumption we can or will do so, you do so at your own risk.
  • In processing your application, we may make any relevant enquiries, including obtaining credit information in accordance with clause 67.

27. Relevant dates

  • The date when you make an application is the Application Date.
  • The date when we confirm that we can and will provide Service that you have applied for is the Commitment Date.
  • The date when we notify you that Service is available for use (or the date you first use the Service, if that is earlier) is the Contract Commencement Date.

28. Term

  • You may not withdraw an application for Service between the Commitment Date and the Contract Commencement Date unless:
    • we agree for you to do so; and
    • you pay a Withdraw Fee
  • Any fixed or minimum term of a Service starts on the Contract Commencement Date.
  • After any fixed or minimum term, your Contract continues until it is terminated according to our Customer Terms.

29. Providing Service

  • We will commence Service as soon as reasonably practicable after the Service has been delivered and this will the Contract Commencement Date, and we may commence billing you from this date.
  • We may provide Service using Our Facilities and/or third party Partner Facilities, as we decide from time to time. Together, we call those Facilities our Network.

30. Use of Service by others

  • Unless we appoint you in writing as a reseller or wholesale customer, you must not share, resell or resupply a Service for remuneration or reward.
  • A person who makes use of a Service with your consent or from your premises or using your equipment or log-in credentials is your End User.
  • The acts and omissions of your End Users with respect to a Service are deemed to be your acts and omissions.
  • You must ensure that your End Users do not do (or omit to do) anything that would breach your Customer Contract if done (or not done) by you.

31. Using a Service

  • When using a Service, you must comply with:
    • your Customer Contract (including any applicable Acceptable Use Policy or Fair Use Policy); and
    • any applicable Laws
  • You must not use a Service:
    • in breach of any Law;
    • to breach the rights of any person
    • to infringe copyright;
    • to create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our Partners into disrepute;
    • to host or transmit content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;
    • to send, allow to be sent, or assist in the sending of Spam, to use or distribute email harvesting software, or otherwise breach the Spam Act;
    • in a way that is misleading or deceptive, where that is contrary to Law;
    • in a way that results, or is likely to result, in damage to property or injury to any person; or
    • in any way that damages or interferes with our Services to other customers, our Partners or any Facilities or exposes us to liability.

32. Telephone numbers

  • In connection with a Service, you may be allocated with telephone numbers.
  • We must comply with the Numbering Plan which sets out rules for issuing, transferring and changing telephone numbers.
  • You have no claim against us arising from anything we do in compliance with the Numbering Plan, including changing or withdrawing a previously allocated number.
  • You must not knowingly and deliberately:
    • do anything that causes us to breach the Numbering Plan or which makes it more difficult for us to comply with it; or
    • relocate, reassign or transfer the number for any Service except in accordance with our published procedures, or otherwise as the Law permits.
  • You do not own any number allocated to you, and (except where Law permits you to transfer your telephone service and its number to another service provider) you have no right to retain a particular number when your Contract ends.

33. IP addresses, email addresses and domain names

  • In connection with a Service, you may be allocated IP addresses, email addresses, domain names or Internet identifiers.
  • These Internet identifiers are licensed, controlled and administered not by us but by independent authorities. These authorities make, and may change, their own rules and regulations that bind us and you.
  • We are not responsible for anything done, or required to be done, by these authorities.
  • You do not own any Internet identifier allocated to you, and (except where rules of the relevant authority permit you to transfer an Internet identifier to another service provider) you have no right to retain them when your Contract ends.
  • An IP address allocated to you:
    • may be managed using Network Address Translation (NAT);
    • may not be ‘globally routable’ ie directly reachable by all other Internet users; and
    • may therefore not support applications or services that require inbound connections to be established (eg a Virtual Private Network).

This reflects common industry architecture and is not a defect in your Service.

  • We may allocate you with a globally routable IP address, if you request it or applicable Service Terms provide for it, subject to:
    • availability;
    • relevant Service Terms;
    • our current allocation policy at the time of request; and
    • payment of an additional Charge.

34. IP addresses, email addresses and domain names

  • In connection with a Service, you may be allocated IP addresses, email addresses, domain names or Internet identifiers.
  • These Internet identifiers are licensed, controlled and administered not by us but by independent authorities. These authorities make, and may change, their own rules and regulations that bind us and you.
  • We are not responsible for anything done, or required to be done, by these authorities.
  • You do not own any Internet identifier allocated to you, and (except where rules of the relevant authority permit you to transfer an Internet identifier to another service provider) you have no right to retain them when your Contract ends.
  • An IP address allocated to you:
    • may be managed using Network Address Translation (NAT);
    • may not be ‘globally routable’ ie directly reachable by all other Internet users; and
    • may therefore not support applications or services that require inbound connections to be established (eg a Virtual Private Network).

This reflects common industry architecture and is not a defect in your Service.

  • We may allocate you with a globally routable IP address, if you request it or applicable Service Terms provide for it, subject to:
    • availability;
    • Service Terms;
  • our current allocation policy at the time of request; and
  • payment of an additional Charge.

35. Dynamic IP addresses

  • Unless your Internet Service specifies that we shall provide you with a static (ie non-changing) IP address, we may provide it using dynamic IP addresses (that change periodically).
  • The periodic changing of dynamic IP addresses is normal network behaviour and not a fault.
  • It may be difficult or impossible to operate an Internet server (eg a mail server or a web server) using an Internet Service with a dynamic IP address. If you intend to operate such a server you should use an Internet Service with a static IP address.

36. Supplied Equipment

  • This clause applies if we supply Equipment to you.
  • You assume risk in Equipment upon delivery.
  • We or our Partners retain title to Equipment:
    • for Equipment rented or loaned to you – at all times;
    • for Bundled Equipment – until completion of the minimum term; and
    • for any other Equipment – until full payment has been made – each a Security Period.
  • While we or our Partners retain title to Equipment, you hold it in a fiduciary capacity as bailee for us.
  • We or our Partners retain all intellectual property rights in any software, manuals or user documentation supplied with Equipment.
  • If you use in connection with a Service any Equipment we have not approved or provided:
    • it must comply with all applicable Laws, and technical standards and requirements including those set by its supplier or the manufacturer;
    • you are responsible for ascertaining what those technical standards and requirements are, since we may not be familiar with the Equipment; and
    • we will not be liable to you for any losses or expenses you incur in relation to your use of the Equipment, except to any extent we cause or contribute to it by:
      • our negligence, or
      • our breach of the Consumer Guarantees.

37. Substituted Equipment

  • On occasions, stock of advertised Equipment may become unexpectedly unavailable. In that event we may supply substitute Equipment that is substantially equivalent to the advertised Equipment.
  • On occasions, advertised Equipment may not be technically suitable for your situation. In that event we may supply substitute or modified Equipment that is more suitable.

38. Delivery of Equipment

  • We will try to deliver Equipment to you on the delivery date (Delivery Date) and at the address (Site) indicated on your Application during normal business hours in that area.
  • Delivery Charges may apply.
  • Variations at your request to Delivery Date or Site:
    • are at our discretion; and
    • may be subject to conditions, including extra Charges.

39. Installation and connection of Equipment

  • This clause only applies if we expressly agree to install or connect Equipment.
  • We will install the Equipment at the Site within a reasonable time after the Delivery Date to connect you to the Service during normal business hours in that area. You must provide us with safe access.
  • You must prepare the Site for the installation (in accordance with any directions or specifications we issue) at your own expense, including providing:
    • appropriate electricity supply;
    • appropriate electrical and mechanical fittings;
    • appropriate environmental conditions;
    • a secure location for the Equipment, including if applicable a suitable point for mounting an external satellite dish without obstructions;
    • all relevant facilities for the location of the Equipment;
    • access to all relevant personnel including your technical personnel;
    • where relevant, permission for us and our representatives and agents to enter the Site and install the Equipment including making any minor physical modifications reasonably necessary for the purpose.
  • You warrant to us that as at the date of installation and connection to the Service, you will have notified any relevant parties and obtained all relevant consents for us to enter onto the Site, install Equipment and connect you to the Service.
  • You must indemnify us against any claim made against us, or loss incurred by us (including legal costs on a full indemnity basis) in connection with such entry and installation, except to any extent that we cause or contribute to it by:
    • our negligence, or
    • our breach of the Consumer Guarantees.
  • You must obtain and maintain, at your expense, any permits, licences, approvals, authorisations, including local council planning approval required for the installation and operation of the Equipment and connection to the Service.
  • If installation must be rescheduled because you breach this clause, we may make a reasonable Charge for our additional costs.

40. Installation Charges

  • We will charge you installation Charges as stated (or indicated by) in your Contract.
  • We will try to inform you in advance of any installation fees that may be charged by our Partners.
  • If we find that installation will be more costly because of factors beyond our reasonable control, we may decline to proceed with installation unless you agree to revised Charges.

41. Additional Equipment services

  • You may ask us to supply additional services in relation to Equipment eg repairs.
  • If we agree to provide additional services, we will charge on a time and materials basis at our standard rates at the time (which may include materials supplied by our Partners at rates they determine).

42. Lost, stolen and damaged Equipment

  • You are responsible for any lost, stolen and damaged Equipment owned by us, except if it is caused by us or our personnel.
  • You must pay for Equipment that is lost, stolen or damaged, except if that is caused by us or our personnel.

43. Return of Equipment

On the termination of your Contract for any reason, you must return all our Equipment without delay.

44. Australian PPS Law

  • Registration and rights
    • We may register our security interest. You must do anything (such as obtaining consents and signing documents) which we require for the purposes of:
      • ensuring that our security interest is enforceable, perfected and otherwise effective under the Australian PPS Law;
      • enabling us to gain first priority (or any other priority agreed to us in writing) for our security interest; and
      • enabling us to exercise rights in connection with the security
  • Application of clause
    • This clause applies to the extent that your Customer Contract provides for or contains a ‘security interest’ for the purposes of the Australian PPS Law (or part of it).
    • The security interest granted to us is a ‘purchase money security interest’ to the extent that it can be under section 14 of the Australian PPS Law.
  • You waive your rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the Australian PPS Law.
  • confer rights on us. You agree that in addition to those rights, we shall, if there is default by you, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Equipment during its Security Period, not only under those sections but also, as additional and independent rights, under your Customer Contract and you agree that we may do so in any manner we see fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
  • Australian PPS Law exclusions and waivers
    • The following provisions of the Australian PPS Law do not apply and, for the purposes of section 115 of the Australian PPS Law are ‘contracted out’ of your Customer Contract in respect of goods that are not used predominantly for personal, domestic or household purposes:
      • section 95 (notice of removal of accession to the extent it requires us to give a notice to you);
      • section 96 (retention of accession);
      • section 125 (obligations to dispose of or retain collateral);
      • section 130 (notice of disposal to the extent it requires us to give a notice to you);
      • section 132(3)(d) (contents of statement of account after disposal);
      • section 132(4) (statement of account if no disposal);
      • section 135 (notice of retention);
      • section 142 (redemption of collateral); and
      • section 143 (re-instatement of security agreement).
    • The following provisions of the Australian PPS Law:
      • section 123 (seizing collateral);
      • section 126 (apparent possession);
      • section 128 (secured party may dispose of collateral);
      • section 129 (disposal by purchase); and
      • section 134(1) (retention of collateral) –
  • Our rights under your Customer Contract are in addition to and not in substitution for our rights under other law (including the Australian PPS Law) and we may choose whether to exercise rights under our agreement and/or under such other law, as we see fit.
  • Non-disclosure
    • We and you agree not to disclose information of the kind that can be requested under section 275(1) of the Australian PPS Law. You must do everything necessary on your part to ensure that section 275(6)(a) of the Australian PPS Law continues to apply.  The agreement in this clause is made solely for the purpose of allowing to us the benefit of section 275(6)(a) and we shall not be liable to pay damages or any other compensation or be subject to injunction if we breach this clause.
  • No competing security interest
    • You must not create, purport to create or permit to be created any ‘security interest’ (as defined in Australian PPS Law) in Equipment during its Security Period other than with our express written consent.
    • Sub-hiring Equipment during Security Period
      • You must not lease, hire, bail or give possession of (sub-hire) the equipment to anyone else unless we (in our absolute discretion) first consent in writing. Any such sub-hire must be in writing in a form acceptable to us and must be expressed to be subject to our rights under our agreement with you.
      • You must take all steps including registration under Australian PPS Law as may be required to:
        • ensure that any security interest arising under or in respect of the sub- hire is enforceable, perfected and otherwise effective under the Australian PPS Law;
        • enable us to gain (subject always to our rights) first priority (or any other priority we agree to in writing) for the security interest; and
        • enable each of us to exercise our respective rights in connection with the security interest.
  • Costs
    • We may recover from you the cost of doing anything under this clause, including registration fees and the costs of notification.

45. TCP Customers and Authorised Representatives

  • If you are a TCP Customer, you can appoint an Authorised Representative to act on your behalf if you require.
  • To be effective, we require that any such appointment:
    • is in writing;
    • is signed by you (unless you are incapable of signing, in which case we shall work out a feasible and mutually acceptable alternative with you);
    • is verified by you in person or by telephone, including reasonable evidence of your identity (unless you are incapable of communicating with us in person or by telephone, in which case we shall work out a feasible and mutually acceptable alternative with you); and
    • states any limitations on the authority of your Authorised Representative (eg time limit; limit on access to your account or personal information; limit on authority to incur expense on your behalf).
  • If your appointment does not state any limitations, your Authorised Representative has the power to act on your behalf as if they are you.
  • If your appointment states any limitations, your Authorised Representative has powers, including access to your information, in accordance with your appointment and those limitations.

46. TCP Customers and Advocates

  • You can use an Advocate to communicate with us if you require.
  • We presume that an Advocate is not authorised to establish or make changes to your account or Services, unless the Advocate is also your Authorised Representative under clause 44.1.
  • A person acting as your Advocate has no power to act on your behalf and has no access to your information without you being present and agreeing to such action.

47. Rights and remedies for PDH goods and services

  • If we supply you with goods or services of a kind ordinarily acquired for personal, domestic or household (PDH) use or consumption you have important rights under the Australian Consumer Law (ACL) including consumer guarantees and remedies. Nothing in your Contract limits those rights and remedies in any way.
  • If we supply you with PDH Goods or Services, and you are told they come with a ‘manufacturer’s warranty’ or ‘one year product assurance’ or similar, those rights are in addition to, and not instead of, your rights under the ACL.

48. Rights and remedies for non-PDH goods costing no more than $40,000

If we supply you with goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and cost no more than $40,000 you have important rights under the ACL including consumer guarantees and remedies but:

  • in relation to these goods, our liability for failure to comply with a consumer guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:
    • replacing the goods or supplying equivalent ones;
    • repairing the goods;
    • paying the cost of replacing the goods or of acquiring equivalent ones; or
    • paying the cost of having the goods repaired; and
  • in relation to these services, our liability for failure to comply with a consumer guarantee is limited to:
    • supplying the services again; or
    • paying the cost of having the services supplied again.
  • If we supply you with non-PDH Goods or Services that cost no more than $40,000, and you are told they come with a ‘manufacturer’s warranty’ or ‘one year product assurance’ or similar, those rights are in addition to, and not instead of, your rights under the ACL.

49. Personal injury or death

To the extent that our negligence causes personal injury or death, we accept liability on normal principles of law.

50. Service Level Agreements

If a Service or a Plan includes a Service Level Agreement (SLA):

  • we are liable for any remedy or rebate specified by the SLA; and
  • subject to clauses 47 to 49, and to the express terms of the SLA, our liability for breach of the SLA is limited to such remedy or debate.

51. Exclusion of implied terms and limitation of liability

Nothing in this clause 51 limits the consumer rights and remedies referred to in clauses 47 and 48.

Subject to clauses 47, 48, 49 and 50:

  • Any representation, warranty, condition or undertaking that would be implied in your Contract by legislation, common law, equity, trade, custom or usage or otherwise is excluded from your Contract to the fullest extent permitted by law.
  • We do not warrant or represent the performance, accuracy, reliability or continued availability of the Services or Facilities or that the Services or Facilities will operate free from faults, errors or interruptions.
  • We are never liable to you for, and you release us from any Claim for, any Contract Loss.

52. Your liability to us – General

  • You must pay us all Charges and other amounts due under your Contract.
  • You must pay us the fair value of any Equipment that you fail to return to us when required.
  • You must pay us fair compensation for any damage to Equipment you return to us. Fair wear and tear does not count as damage.
  • You must indemnify us for any loss or damage we suffer as a result of or in connection with:
    • your breach of your Contract;
    • your use of a Service or Equipment; or
    • a claim against us by an End User in relation to a Service we supply to you.

TCP Customers: We will not impose Credit Management Charges unless the Charges are a reimbursement of our costs and you are advised of their amount or method of calculation.

  • You indemnify us for any loss or damage we suffer in connection with any claim made against us by a third party arising out of or in relation to your use of Services or Equipment.
  • Your obligations under this clause survive termination of your Contract.

53. Your liability to us – legal requests, etc

  • This clause applies where we reasonably incur expense as a result of or in connection with:
    • a police request for information or evidence in relation to you or your use of a Service; or
    • a Court or other competent authority’s direction for provision of information or evidence in relation to you or your use of a Service; or
    • a demand from a legal practitioner for information or evidence in relation to you or your use of a Service.
  • You must reimburse our expenses on request.

54. Your liability to us – (alleged) illegal use, etc

  • This clause applies where:
    • your Service is actually or allegedly used in a way that breaches any law or infringes the rights of any third party; and
    • we suffer loss or reasonably incur expense as a result.
  • You must make good our loss and reimburse our expenses on request.

55. Maintenance and faults

  • Maintenance
    • From time to time, the Network requires maintenance that may interfere with your Service. We will provide you with notice of any scheduled maintenance where reasonably possible.
  • Reporting faults
    • You may report faults in relation to a Service or the Network by contacting our help line during its operating hours.
    • Before reporting a fault, you must take all reasonable steps to ensure that the fault is not caused by equipment which is not part of the Network.
    • You must not report a fault directly to one of our Partners unless we ask you to do so.
    • If you report a fault that turns out to be a ‘false alarm’, or not to relate to the Network, we may make a reasonable charge for our effort and expenses in responding to your report.
  • Repairing faults
    • We will use reasonable efforts to repair faults in Our Facilities within a reasonable period.
    • We will use reasonable efforts to have our Partners repair faults in Partner Facilities within a reasonable period.
    • You are responsible for maintaining and repairing your own equipment (except where we supplied it and you have warranty rights in relation to a fault).
  • Cost of repairs
    • If you cause a fault or damage to the Network, we may charge you the reasonable cost of repairing it.

56. General power to vary your Contract

We may vary your Contract from time to time on notice to you but variations do not have retrospective effect.

ACL Consumers Subject to clause 57(b), we shall give you reasonable notice, having regard to:

  • the nature of the variation; and
  • the means by which notice is to be provided; and
  • the length of time remaining before the variation is to occur; and
  • any other matter that is reasonably relevant –

and we may also give you Walk Away Rights as explained in clause 57.

57. ACL Consumers and Contract variations

This clause only applies to ACL Consumers.

  • Reminder about ACL Consumers
    • ACL Consumers means individuals who enter certain kinds of contracts. Refer to the Dictionary for the detailed definition.
  • Beneficial or minor negative impact
    • If a Contract variation will have a beneficial or only a minor negative impact on you:
      • we will not give you notice, and
      • we will not give you Walk Away Rights.
  • Variations arising from amendments by a Partner If:
    • a Partner supplies a service (Resupply Service) to us; and
    • we resupply the Resupply Service to you (either as a separate service or as part of another service); and
    • the Partner exercises a legal right to vary its terms of supply of the Resupply Service –
  • then:
    • we may vary your Contract in accordance with the Partner’s variation;
    • we will give you notice of the variation; and
    • we will give you Walk Away Rights if you also pay any costs (eg early termination fee or similar) that we will have to pay for cancelling the Resupply Service with the Partner.
  • Other variations
    • In any other case:
      • We will give you notice of the variation.
      • We will also offer you the right to terminate your Contract within 14 days of the date of the notice without incurring charges other than:
        • usage or network access charges to the date your Contract ends; and
        • outstanding amounts for installation of Equipment; and
        • outstanding amounts for Equipment that is compatible with other suppliers’ services; and
        • where applicable, any amount under clause 57(c) – (Walk Away Rights).

58. When  variations take effect

Contract variations take effect:

  • at the end of any applicable notice period; or
  • if no notice period applies, immediately.

59. Customer transfers

  • Transfer to us
    • If you wish to transfer from another supplier to us, you must first check whether your contract with your current supplier imposes any restrictions or costs of doing so.
    • By making an application for Service, you instruct and authorise us to arrange with your current supplier to transfer the Service to us, and authorise us to act on your behalf with your current supplier to transfer the Services to us.
    • You must promptly pay your current supplier all amounts you owe it.
  • Transfer from us
    • If you transfer a Service to another supplier, you must pay our Charges that accrue before completion of the transfer.
    • If you transfer a Service to another supplier before the end of any minimum term or fixed term, Early Termination Fees apply – see clause 83.

60. Charges & payment (1):  kinds of Charge

We have various kinds of Charge, including:

  • installation Charges
  • set up Charges
  • periodic Charges
  • usage Charges
  • prepaid Charges
  • call connection Charges
  • miscellaneous Charges
  • third party Charges
  • equipment Charges –

and other Charges that we state as part of a Plan or otherwise notify to you.

61. Charges & payment (2): Prices

  • Subject to clause 63, our prices are as stated in your Plan.
  • Our current prices at any time are referred to as our ‘Price List’, subject to any changes to spot priced Services under clause 62.

62. Charges & payment (3):  spot priced Services

  • We may designate a Service as a spot priced Service.
  • Spot priced Services will consist of resupplied or rebilled Services where our buy price or other third party charges can vary with little or no notice.
  • International telephone calls and international roaming are spot priced Services.

63. Varying Charges

We may vary the Charges or add new Charges from time to time in accordance with clauses 56, 57 and 58.

64. Special Promotions

  • We may offer Special Promotions to you, on particular terms.
  • The particular terms of the Special Promotion will prevail to the extent of any inconsistency with other parts of your Contract.

65. Bundled Plans

  • We may offer a group of Services as a package (bundle) for discounted total Charges (compared to the total Charges that would apply if you acquired the same Services not as a bundle). eg We might offer bundled ‘Home phone + Internet Access for $89.95 a month’ where our Charges for the individual Services would be $99.95 a month.
  • Each Service in a bundle is subject to a separate but dependant Contract.
  • If you stop acquiring any Service in a bundle:
    • You have ‘broken’ the bundle; and
    • We may bill you non-discounted Charges for the remaining Service/s.

66. Credit management (1):  Guarantees and security

  • We can make supply of Service conditional on you giving us, and maintaining, security and/or third party guarantees to our reasonable satisfaction.
    • TCP Customers:  We will base the requirement for a security on the outcome of a credit assessment conducted in relation to you and the Service you acquire.
  • If we become entitled to suspend or terminate Service, we may make the resumption of Service conditional on you giving us, and maintaining, security and/or third party guarantees to our reasonable
    • TCP Customers:  We will base the requirement for a security on the outcome of a credit assessment conducted in relation to you and the Service you acquire.
  • We may use a security payment to pay any billed Charge that is overdue, where you have not disputed the Charge.
    • TCP Customers: Before we access a security payment, we will advise you that it will be accessed within 5 working days and provide you an opportunity to pay within that period.

67. Credit management (2):  Credit checks

  • Credit checks
    • At our discretion, we may obtain a credit report about you to help us decide whether to accept your application for service and to help us collect overdue amounts.
    • In the course of a credit check, we may disclose personal information about you to a credit reporting agency or other credit information provider. We may receive a credit report and other information about you, including personal information.
    • A credit reporting agency may include the fact that we obtained a credit report about you in its credit information file on you.
  • Disclosure of information
    • We may disclose to a credit reporting agency:
      • information in your application;
      • details of your account;
      • that you have applied for credit with us;
      • that we are a current credit provider to you;
      • payments that are more than 60 days overdue and are subject to collection processes;
      • any cheque of yours for $100 or more which has been dishonoured more than once;
      • any serious credit infringement you have committed;
      • that payments are no longer
  • Other credit disclosures
    • We may disclose information about you and any debt you owe us to:
      • a debt collection service we engage; and
      • anyone who takes, or is considering taking, an assignment of any debt you owe
  • Your consents
    • If you are an individual, you agree that we can conduct a credit check and verify your personal details, in accordance with this
    • If you are self-employed, you agree that we can:
      • obtain and use any report or information from a credit reporting agency, which contains information about your commercial activities or commercial credit worthiness;
      • exchange with your other credit providers, any credit report or other report about your credit worthiness or history, or personal information contained in those reports – in accordance with this clause.
  • Further acknowledgments
    • You acknowledge that credit and other  information about you may be used:
      • to assess your application,
      • to assist you to avoid defaulting on your credit obligations,
      • to notify other credit providers of a default by you,
      • to assess your creditworthiness.

68. Credit management (3):  Services you acquire for others

If you enter a Contract where you will not be the main actual user of the Service (eg you arrange an Internet Service for your children):

  • You are responsible for all use of the Service and all Charges incurred under the Contract.
  • If you give anyone else sufficient information about your Service (eg by giving them your user name, password or other credentials), they may be able:
    • to uncap or unlimit any cap or other limits that apply to it,
    • to change Plans,
    • to disconnect Service, and
    • to do anything else that you could do.
  • You should treat all information that allows control of your Service as secret.
  • Internet and telephone Services can be used to buy goods and services from third parties. You may be liable for debts incurred to these third parties.

69. When we can bill

  • Your ‘Billing Period’ is the period between bills. Our standard Billing Period is monthly, but reserve the right to vary it.
  • We can bill a part-period eg to align your Billing Period with the first day of each month.
  • We may bill for Charges as follows:

Type of Charge:

payable:
(i)     set up Charge immediately
(ii)    periodic Charge 14 days before the start of the period it relates to
(iii)   usage Charge at the end of each Billing Period
(iv)   prepaid Charge when you buy a prepaid Service
(v)    call connection Charge at the end of each Billing Period
(vi)   miscellaneous Charge at the end of each Billing Period
(vii)  third party Charge immediately
(viii) Equipment Charge when or before we dispatch the Equipment
  • In any case, we may bill you for any Service we have already provided.

70. Bills – General

  • You agree that you can incur a Charge without us issuing any invoice, statement or Bill.
  • You agree that we need not offer payment by mail as a payment method for any Service, including a Standard Telephone Service.
  • If we do provide an invoice, statement or bill for a Service, we can send it to you in the same way as any other notice, including via your Account Page.

71. Supplying a bill – TCP Customers

If you are a TCP Customer, we will supply a Bill to you for each current Billing Period, except where:

  • you pay by Direct Debit and the Charges for that Billing Period are for the same fixed amount in each Billing Period – and in that case you and we agree that, although a Charge for that fixed amount will be payable by you, a Bill will not be issued unless the total amount payable in that Bill is more than 10% higher than that fixed amount; or
  • your Service is prepaid.

72. Extra Charges for bills and information

  • We may charge you an extra Charge if:
    • you request non-standard information about your bill or Charges, or
    • you ask us to deliver a bill by a method that is not the standard method for a Plan.
  • If you request a paper bill when that is not the standard method for a Plan, the extra Charge is $5 per bill, or as otherwise notified in our Price List.

73. Billing information – TCP Customers

  • Requesting information
    • If you are a TCP Customer and request it, we will provide all Billing information related to your Service (including, if you request it, itemised details of Charges associated with the Service) relating to up to 72 months prior to your request, provided that:
    • for information relating to the 24 months prior to your request:
      • we shall provide it through at least one medium (of our choice) free of charge; and
      • otherwise we may impose a Charge for providing the information, limited to the cost of the providing it;
    • for information relating to a period between 24 and 72 months prior to your request, we may impose a Charge for providing the information, limited to the cost of the providing it;
    • you may request provision of Billing information via other mediums and formats normally available from us and we may impose a Charge for providing the information in that way, limited to the cost of the providing
  • Electronic Billing data
    • If you are a TCP Customer and we make information from, or about, a Bill, available in an electronic form, we will offer at least one method of accessing that information that does not involve paying access Charges to us (but to avoid any doubt, this does not prevent us from making any Charge that is authorised by clause 73.1).
  • Itemised Billing
    • We require notice in order to supply itemised billing details to
    • Unless we advise you otherwise, the notice period is:
      • 14 days where the information relates to Charges first billed within the last 12 months;
      • 21 days where the information relates to Charges first billed within 12 to 24 months; and
      • otherwise – 28 days.

74. Costs of telephone Billing Enquiries

If we provide access to our billing enquiry point by telephone, you agree that standard call rates apply (including timed charges for national and mobile calls).

75. Out-of-pocket expenses

  • We may notify you that, in order to supply a Service, we need to incur some out-of pocket expense that is not included in other Charges. In that case we will not supply that Service unless you make satisfactory arrangements to pay or reimburse that expense.
  • We notify you that a Partner may charge us if you report a fault and there was no such fault, or the fault lies with equipment for which the Partner is not responsible, or if you contact the Partner directly. You must pay or reimburse all such amounts.

76. Australian GST

  • In this clause, an expression within a pair of asterisks means the same as in the Australian GST
  • This clause applies to *taxable supplies* that give rise to a liability for GST in Australia.
  • Our prices are taken to be GST inclusive unless they are expressed to be ‘GST exclusive’, ‘+ GST’ or similar.
  • Where any amount is GST inclusive, it is the gross amount, inclusive of any GST payable in respect of any *taxable supply* for which that amount is paid. Otherwise, if we make a *taxable supply* that gives rise to a liability for GST, then you must pay immediately the amount of that GST in addition to the *consideration* for the *taxable supply*.
  • If these terms require you to pay, reimburse or contribute to an amount paid or payable by us in respect of an *acquisition* of a *taxable supply* from a third party, the amount you must pay, reimburse or contribute will be the value of the *acquisition* by us less any *input tax credit* to which we are entitled plus, if our recovery from you is a *taxable supply*, any GST payable under this clause.
  • We may recover any GST payable under this clause in the same manner as our Charges.

77. New Zealand GST

  • This clause applies to taxable supplies that give rise to a liability for GST in New Zealand.
  • Our quoted prices are taken to be GST inclusive unless they are expressed to be ‘GST exclusive’, ‘+ GST’ or similar.
  • If a quoted price is not inclusive of GST, you must pay applicable GST in addition to the quoted price, at the same time and in the same way as the quoted price must be paid.
  • We may recover any GST payable under this clause in the same manner as our Charges.

78. Late billing

  • We may late bill.
    • TCP Customers  We shall only do so up to 160 days in arrears.
  •  Some Charges in a Bill may relate to a previous Billing Period.

79. When you must pay

  • Where a Direct Debit or credit card arrangement applies, we may Extract payment for Charges:
    • after it is billed (if we issue a Bill for the Service); or
    • after the end of the current Billing Period (if we do not issue a Bill for the Service).
  • TCP Customers  All Billing information will be accessible before we do so, but you agree that we need not allow 10 working days before Extraction (as would otherwise be required by clause 5.7.1(c) of the TCP Code).
  • If any Bill is overdue for payment, you must pay that Bill and any other Bill immediately.
  • In any other case, you must pay a Bill within 14 days after its Bill Date.

80. How you can Pay

  • If your Plan specifies ‘Direct Debit only’ (or similar) then:
    • Direct Debit payment is a precondition to supply of Service to you.
    • We may suspend Service if Direct Debit arrangements are not maintained.
    • You must not cause to be reversed any Direct Debit payment to us, unless you have our prior written approval. Otherwise, you must pay our reasonable costs (including legal fees if necessary) of reinstating the transaction.
  • TCP Customers: We will not impose Credit Management Charges unless the Charges are a reimbursement of our costs and you are advised of their amount or method of calculation.
  • In any other case:
    • Direct Debit is our preferred payment method and incurs no surcharges.
    • You may pay by MasterCard or Visa or any other card we notify you that we accept.
    • Payments made using credit cards may be subject to a surcharge as notified on our website or a Bill.
  • If any payment you make is dishonoured we may charge you a reasonable payment dishonour fee and recover from you any fees charged by our bank which result from the dishonoured payment.

81. Late payment (1)

If a Bill is not paid on time:

  • you are in breach of your Contract, and
  • we may also charge:
    • interest at 1.5% a month from the Bill Date until it is paid in full, or
    • a reasonable late fee, and
    • any collection fees and expenses that we incur.

TCP Customers: We will not impose Credit Management Charges unless the Charges are a reimbursement of our costs and you are advised of their amount or method of calculation.

82. Late Payment (2) – accounts over 60 days

If your payment is 60 days or more overdue or we otherwise consider it is reasonable to do so –

  • we may refer it to an external collections agency;
  • we notify you that our collection fees and expenses under clause 81(b)(iii) may:
    • include the external agency’s collection fee and/or
    • include a minimum recovery charge.

TCP Customers: We will not impose Credit Management Charges unless the Charges are a reimbursement of our costs and you are advised of their amount or method of calculation.

83. Early Termination Fees

The amount of an Early Termination Fee that we are entitled to charge is:

  • the amount specified in or calculated in accordance with the relevant Plan; or
  • otherwise:
    • any amount we remain liable to pay to a third party (eg a wholesale supplier) for goods or services we cannot resell or resupply to other customers; and
    • a reasonable estimate of our lost profit as a result of early

84. Billing disputes

  • Our records of what you owe us are deemed to be right unless you show them to be wrong.
    • ACL Consumers  This does not apply to you.
  • If you dispute a bill, you must pay it on time. We shall credit you if it is later determined that you are entitled to a credit.
    • TCP Customers We will not take Credit Management action in relation to a disputed amount that is the subject of an unresolved complaint, if we are aware that the complaint has not been resolved to your satisfaction and is being investigated by us, the TIO or a relevant recognised third party but:
    • you must still pay all undisputed portions, and
    • if it is determined that some or all of the disputed portion is payable, you must pay that amount within 5 days.
  • You may not raise a billing dispute more than 12 months after a bill is issued, and we will not pay any refund or give any credit in respect of a period prior to that.

85. Billing for unauthorised use of your account

You are responsible for, and must pay for, all use of your Service except for unauthorised use that results from our negligence or breach of Consumer Guarantees.

86. Billing agents

  • We may bill you via a billing agent (eg another company in our group).
  • Payment to our billing agent constitutes payment to us.
  • Failure to pay our billing agent constitutes failure to pay us.

87. Calls to Mobiles

  • Unless otherwise expressly stated, our prices for usage of mobile phones (eg calls, messaging, data transfers) are always quoted on the basis that:
    • you are using the phone in Australia, and
    • any phone you are calling or messaging is in Australia.
  • We cannot necessarily know when a mobile telephone is outside its home network. If it is, extra Charges may apply.

88. Payment for third party services

  • Using a Service may depend on you having goods or services supplied by third parties. For instance:
    • In order to use a dial up internet Service, you must have a telephone line, and your modem will make calls using it.
  • In order to use a local call Service, you must have a suitable handset.
  • You are solely responsible for the costs of all third party goods and services you acquire.

89. Your cooperation

  • You must give us all reasonable cooperation that we require in order to provide a Service to You, and fixing any problems that arise, and resolving any disputes that may arise or complaints that you may have.
  • You acknowledge that, where a Service is a carriage service within the meaning of the Telecommunications Act, we or a Partner may be required:
    • to intercept communications over the Service, and
    • monitor usage of the Service and communications over it.

90. Complaints – General  (but see clause 91 if you are a TCP Customer)

  • If you have any complaints in connection with the Service (including complaints about your invoice) you should contact us first to resolve the complaint via the contact details available on our website.
  • We will handle your complaint in accordance with our complaints procedure. You can get information on our complaints procedure by contacting us.
  • You are also entitled to make a complaint to the Telecommunications Industry Ombudsman and possibly to the Consumer Affairs office (however described) in your state. We ask that you notify us before you do so, so that we have the opportunity to try to resolve your complaint at that stage.
  • We may bill you a reasonable complaint handling Charge.

91. TCP Customers and Complaints

If you are a TCP Customer:

  • We will handle complaints in accordance with the Complaint Handling Procedure on our website, and the TCP
  • Our Complaint Handling Procedure will be free of charge other than for:
    • call costs at local rates or low cost when calling from our network;
    • a costs recovery levy of providing access to information we hold about you that we collected more than 2 years earlier;
    • a costs recovery levy of providing information that is not in the standard form generated by our customer records and billing systems or is equivalent to more than 50 A4 pages.

92. Termination & suspension by us (1):  Early termination

Subject to clause 94, we may terminate a Contract, or suspend or restrict Service if, in relation to that or any other Contract or Service:

  • you fail to pay us any money that is due;
  • you threaten not to pay us money that you owe us, or will owe us in the future;
  • you cause to be reversed any Direct Debit or credit card payment to us (except with our prior written agreement);
  • you are in material breach of your Contract;
  • you become insolvent;
  • we reasonably believe that you have vacated your Premises without notice to us;
  • we reasonably consider that it is desirable to do so to facilitate Network maintenance or to protect the Network from harm;
  • it becomes technically infeasible for us to continue Service;
  • you use a Service in a way that places unreasonable demands on our Network;
  • we are unable to obtain access to your Premises as required to provide, maintain or repair the Service;
  • there is an emergency that warrants it;
  • you have told us that you no longer require the Service;
  • if we reasonably suspect fraud or attempted fraud involving the Service;
  • we become entitled to suspend the Service, and the suspension continues for more than a month;
  • you are, or become, a carrier or carriage service provider under the Telecommunications Act (and we did not agree to provide you with Service despite that); or
  • in any other circumstances stated elsewhere in our Customer Terms.

We may charge a reconnection Charge following action under this clause unless it resulted from our mistake.

93. Termination & suspension by us (2):  Other events

Subject to clause 94:

  • We may terminate a Contract or suspend performance of our obligations under the Contract if you die or become bankrupt, insolvent or subject to a winding-up order or similar insolvency event, if we have a reasonable belief that we are unlikely to receive or retain payments for amounts due and payable by you under the Cibtract,
  • We may suspend or restrict the supply Service if there are reasonable grounds for believing:
    • a serious threat or risk exists to the security or integrity of the Network, or
    • the provision of the Service may cause death, personal injury or damage to property.
  • We may suspend or restrict Service in cases of emergency, including for the provision of support to emergency and other essential services.
  • We may terminate a Contract or suspend or limit or vary performance of our obligations under it to comply with:
    • legislative or regulatory requirements, or
    • the order of a court or lawful direction of a competent authority – to the extent the legislative or regulatory requirements or order or direction unavoidably requires us to do so.
  • We may suspend, intercept or terminate a service in order to comply with a warrant or other court order, or as otherwise required or authorised by law.

94. TCP Customers – Disconnection, Suspension and Restriction

If you are a TCP Customer:

  • we will not disconnect, suspend or restrict a Service for credit and/or debt management reasons, without first informing you unless:
    • we assess that you or the account status presents an unacceptably high credit risk to us; or
    • we reasonably suspect fraud or attempted fraud; or
    • you have nominated to us an agreed point at which Service will be limited and that point has been reached;
  • except where clause 94(a) applies, we will give you at least 5 working days’ notice prior to disconnecting, suspending or restricting your Service, including an indication of the earliest date disconnection, suspension or restriction could occur and the date of issue of correspondence if you are informed in writing –

and we shall otherwise comply with the rules in the TCP Code about disconnection, suspension or restriction of the Service.

95. Early termination by you

  • You are not entitled to simply choose to terminate a Contract during its fixed or minimum term, unless our Customer Terms or the law says otherwise.
  • Our Plans are priced on the basis that you will complete your Contract.
  • Where you are entitled to terminate your Contract early (eg because we have offered you that option following a variation to your Contract) we may bill you for:
    • any outstanding amounts for installation costs or equipment that can be used in connection with services provided by other suppliers; and
    • usage or network access charges incurred up to the date on which the Contract ends.
  • If we agree that you may terminate it early in any other circumstances, we may bill you:
    • an Early Termination Fee;
    • any applicable amounts under clause 95(e);
    • a reasonable administration Charge;
    • usage or network access charges incurred up to the date on which the Contract ends; and
    • any other Charge that is specified in the applicable Plan or the Price List.
  • Some of our Plans discount, defer or waive normal equipment or installation costs (eg include a $0 up-front modem or zero set up fees) in exchange for a certain minimum or fixed term. If you want to terminate a Contract under such a Plan early (and if we agree that you may do so) we may also bill you an additional Charge for those items representing their reasonable value pro-rated against the portion of the minimum or fixed term that is to be truncated.

96. Termination by you

  • You may terminate your Contract:
    • (except during a fixed or minimum term) at any time, on 30 days’ written notice; or
    • by giving us written notice if an Intervening Event occurs and you are unable to use the Service for more than 30 days.
  • You may also terminate your Contract:
    • in any other circumstances where your Contract provides for it; or
    • (in a case where you have a non-excludable legal right to do so) by transferring the Service from us to another supplier. We will cancel the Service and terminate your Contract immediately once the other supplier has informed us that you have elected to transfer the Service from us to that other supplier.

97. Post-termination

If your Contract ends:

  • Our obligations to you under that Contract are at an end.
  • We may bill you for any Services we have not yet invoiced and all other amounts we are entitled to under the Contract.
  • All bills are payable immediately.
  • You authorise us to recover any undisputed outstanding Charges and Early Termination Fees from any overpayment you have made, or Direct Debit them from your credit card or bank account if you normally pay by Direct Debit.
  • You must return to us, promptly, any of our equipment under your control. (If you fail to do so, we may bill you a reasonable Charge for it.)
  • Any cause of action that either of us had against the other predating the termination is not affected,
  • The limitations of our liability, and our rights of indemnity, under our Customer Terms continue,
  • No other Contract is affected unless we also terminate it.

Otherwise, that Contract is at an end for all purposes.

98. Suspension of Service

We may suspend Service at any time, without liability and immediately by reasonable notice to you (except in the case of an emergency or your death), if:

  • there are problems with the Network, or we or our Partners need to suspend the Services to conduct operational and maintenance work on the Network;
  • you fail to pay any amount owing to us in respect of the Service under your Customer Contract (which is not the subject of a bona fide dispute) by the due date, and you fail to pay that amount within the period specified in any subsequent notice we send you;
  • you breach your Customer Contract, including terms relating to your use of the Service or any Acceptable Use Policy, and that breach cannot be remedied;
  • you breach your Customer Contract, including terms relating to your use of the Service or any Acceptable Use Policy, and that breach can be remedied, but you do not remedy that breach within 30 days of receipt of a notice from us requiring the breach to be remedied;
  • you are the subject of an Insolvency Event;
  • we reasonably suspect that you, an End User or any person in connection with the Service is fraudulent or where evidence suggests illegal conduct in relation to the Service;
  • we reasonably believe that you may be a credit risk in relation to the Service;
  • you are a natural person (and not a company) and you die;
  • there is an emergency;
  • there is a threat or risk to the security of the Service or integrity of the Network;
  • the Service may cause death, personal injury or damage to property;
  • we are required to do so to comply with any law or direction of any Regulator;
  • an Intervening Event occurs; or
  • we are otherwise entitled to do so under your Customer Contract.

99. Charges during a period of suspension

If we suspend Service:

  • because of your fault or breach of your Contract – you remain liable for all Charges payable under your Contract during the period of suspension;
  • otherwise – you are entitled to a pro rata reduction in Charges in respect of the period of suspension.

100. Errors in our documents

  • Clerical or computation errors and misprints in any document that we provide to you in connection with your Contract, including any Plan terms, catalogues, price lists, delivery dockets, invoices, statements or credit notes, may be corrected by us reissuing the document or by otherwise giving you notice of the error or misprint with reference to the original document.
  • You are not entitled to a reduction or variation in the price of the Services by reason of any such errors or misprints.

101. Carrier or Carriage Service Provider

  • You promise that you are not a carrier or a Carriage Service Provider.
  • If you do become a Carrier or a Carriage Service Provider, then we or our Partners may immediately cancel the Service and terminate your Contract by notice to you.

102. Provision of Services by our Partners

  • If we terminate an arrangement with a Partner through which we supply the Service to you, you acknowledge that our Partner may arrange to supply you with the Service directly.
  • If our rights and obligations under your Contract are assigned or novated to our Partner in order to supply the Service directly to you, you acknowledge that the rate plan and Charges applicable to the provision of the Service may be altered to the nearest applicable Partner rate plan.

103. Assignment

  • We may assign or novate all or part of our rights and obligations under your Contract without your consent.
  • You cannot assign or novate all or part of your rights and obligations under your Contract unless we agree in writing.

104. Notices

  • How we give notices
    • We may give notice to you in connection with, or as required by our Customer Terms:
      • in person;
      • by fax;
      • by email;
      • by post;
      • by Instant Messaging; or
      • in any other way allowed by law –
    • or by sending you (by one of the above means) notice of the address of a web page where the notice can be read.
  • Address or number for notices
    • We may direct a notice to:
      • a number or address that we reasonably believe to be current;
      • in any event, the most recent number or address that you have notified to us; and
      • if you are a company, your registered office
  • A notice is taken to have been received:
    • if we deliver it to you in person – at the time of delivery;
    • if we fax it during business hours in your locality – two hours later, subject to our fax machine receiving a successful transmission confirmation;
    • if we fax it outside business hours in your locality – at 9am on the next Business Day in your locality, subject to our fax machine receiving a successful transmission confirmation;
    • if we email it during business hours in your locality – two hours later, subject to a ‘delivery failure’ message not being received;
    • if we email it outside business hours in your locality – at 9am on the next Business Day in your locality, subject to a ‘delivery failure’ message not being received;
    • if we post it – at noon on the second Business Day after posting;
    • if we send it by Instant Message – two hours later;
    • if we send you notice of the address of a web page – two hours after that notice is taken to have been received; or
    • if there is evidence that you received it at an earlier time – that earlier time.

105. Governing law

Your Contract is governed by and must be construed in accordance with the laws of Victoria. You and we submit to the exclusive jurisdiction of the courts of Victoria, Australia and the Commonwealth of Australia.

ACL Consumers Your Contract is governed by and must be construed in accordance with the laws of your State or Territory of residence. You and we submit to the exclusive jurisdiction of the courts of that State or Territory and the Commonwealth of Australia.

106. Entire agreement

Your Contract is the entire agreement between you and us regarding its subject matter, and you acknowledge that:

  • your Contract does not include any term, condition, warranty, representation or guarantee that is not expressly set out in it, other than a Consumer Guarantee to the extent it may not lawfully be excluded; and
  • you have not relied on any representation that is not expressly set out in your Contract.

107. Delays

  • Time is not of the essence in the performance of our obligations, including the provision of Service, under your Contract.
  • We are not liable to you for any delay in the provision of any Service.
  • You may not cancel or amend an order for a service on the grounds of any delay in providing it.

ACL Consumers If your Contract does not fix a time within which a Service will be provided and the time is not to be determined in a way agreed between us, we shall supply it within a reasonable time and you may have rights and remedies under the ACL if we fail to do so.

108. No waiver

A failure, delay, relaxation or indulgence by us in exercising any power or right conferred under your Contract (such as a right that we have due to your breach of your Contract) does not operate as a waiver of the power or right.

109. Commission

We may pay a commission to any agent, employee, contractor or dealer in connection with the acquisition of the Services and your Customer Contract.

110. Information about your rights

Information and advice about your rights can be obtained by contacting the Australian Communications and Media Authority, the Telecommunications Industry Ombudsman, the Australian Competition and Consumer Commission, or the relevant Department of Fair Trading or Department of Consumer Affairs in your State or Territory.

111. Complaints and assistance services

Our contact details are available on our website.

You may contact us and make any complaint by contacting us or the following assistance services:

  • Customer Service – (Australia) 1300 683 000
  • National Relay Service – 133 677 or 1800 555 677
  • Translating and Interpreting Service – 131 450

112. Commercial Electronic Messaging

  • Subject to this clause, we may send you Commercial Electronic Messages regarding telecommunications goods and services, and ancillary goods and services, and you consent to us doing so.
  • You consent under clause 112(a):
    • applies while your Contract is in force and for a year afterwards; and
    • is in addition to any other consent that you may give, or which may be inferred, for the purposes of section 16(2) of the Spam Act; but
    • terminates if you give us reasonable written notice that it is withdrawn.
  • Any Commercial Electronic Message we send you does not have to comply with section 18(1) of the Spam Ac
  • This clause 112 survives the termination of your Contract.

113. Interpreting your Contract

  • If an expression is defined in the Dictionary in clause 114, that is what it means.
  • If an expression is defined in the Dictionary, grammatical derivatives of that expression have a corresponding meaning. (For instance, if ‘to colour’ means ‘to paint blue’, then ‘coloured’ means ‘painted blue’.)
  • Expressions like ‘includes’, ‘including’, ‘eg’ and ‘such as’ are not words of limitation. Any examples that follow them are not to be taken as an exhaustive
  • Headings are only for convenience. They are to be ignored when interpreting our Customer Terms.
  • A schedule to a document is part of that document.
  • A reference to the singular includes the plural and vice versa.
  • There is no significance in the use of gender-specific language.
  • A ‘person’ includes any entity which can sue and be sued.
  • A ‘person’ includes any legal successor to or representative of that person.
  • A reference to a law includes any amendment or replacement of that law.
  • Anything that is unenforceable must be read down, to the point of severance if necessary.
  • Anything we can do, we may do through an appropriately authorised representative.
  • Any matter in our discretion is in our absolute and unfettered discretion.
  • A reference to a document includes the document as modified from time to time and any document replacing it.
  • If something is to be or may be done on a day that is not a Business Day then it must be done on the next Business Day.
  • The word ‘month’ means calendar month and ‘year’ means 12 months.
  • The words ‘in writing’ include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient.
  • A reference to all or any part of a statute, rule, regulation or ordinance (statute) includes that statute as amended, consolidated, re-enacted or replaced from time to time.
  • Money amounts are stated in Australian currency unless otherwise specified.
  • A reference to a ‘notice’ means a notice that can be read, unless stated otherwise.

114. Dictionary

The expression: means:
Account Page a web page or facility we may provide that permits you to view and / or manage details of your account
Acceptable Use Policy a policy so titled and issued under clause 6
ACL Australian Consumer Law, which is set out in Schedule 2 of the Competition and Consumer Act 2010
ACL Consumer an individual who enters a Customer Contract for goods and/or services wholly or predominantly for personal, domestic or household use or consumption but excluding one who acquires a Telecommunications Product from us in New Zealand or for use exclusively in New Zealand
ACL Consumer Contract same as ‘Consumer Contract’ in the ACL
ACL Consumer Guarantee same as ‘Consumer Guarantee’ in the ACL
ACL Business a business that enters an ACL Business Contract with us and, when it does so, employs fewer than 20 persons (excluding casual employees except thise employed by the business on a regular and systematic basis)
ACL Business Contract a contract for a supply of goods or services where the upfront price payable under the contract does not exceed $300,000 or the contract has a duration of more than 12 months and the upfront price payable under the contract does not exceed $1,000,000
Application Date see clause 27(a)
Advocate as in the TCP Code
Australian GST Act A New Tax System (Goods and Services Tax) Act 1999
Australian PPS Law Personal Property Securities Act 2009
Authorised Representative as in the TCP Code
Automatic Direct Debit a periodic payment that is automatically deducted by us from your nominated financial institution account
Bill an invoice from us which advises you of the total of each Charge that is due for payment
Billing Period see clause 69(a)
Bundled Equipment see clause 15
Business Day Monday to Friday excluding statutory holidays in Melbourne, Australia

 

The expression: means:
Carriage Service as in the Telecommunications Act
Carriage Service Provider as in the Telecommunications Act
Carrier as in the Telecommunications Act
CGA Consumer Guarantees Act 1993 (NZ)
CGA Consumer Guarantee same as ‘Consumer Guarantee’ in the CGA
Charge a charge applicable under your Customer Contract
Claim any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim)
Contract Commencement Date see clause 27(c)
Commercial Electronic Message same as in the Spam Act 2003 or the Unsolicited Electronic Messages Act 2007 (as applicable)
Commitment Date see clause 27(b)
Consumer Contract same as in the ACL
Consumer Guarantee same as in the ACL
Contract same as Customer Contract
Contract Loss loss or damage suffered by a party and arising in connection with or out of your Contract or any supply made under it (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which another party was or should have been aware), including but not limited to:

·         economic loss;

·         business interruption;

·         loss of revenue, profits, actual or potential business opportunities or contracts;

·         anticipated savings;

·         loss of profits;

·         loss of data;

·         indirect or consequential loss;

·         an obligation to indemnify another person;

·         an obligation to contribute to the compensation of loss or damage suffered by another person

 

The expression: means:
Credit Management the process by which we:

·         help customers to manage their expenditure on Services;

·         manage any credit risk to us; and

·         collect outstanding debts from customers and former customers

Delivery Date see clause 38
Dictionary this table of defined terms
Direct Debit a payment that is deducted by us from your nominated financial institution account, including an Automatic Direct Debit
Early Termination Fee see clause 83
End User see clause 30(b)
Equipment a handset, modem, router or other hardware
Extract deduct an amount by Direct Debit
Facilities equipment and network infrastructure of all kinds used to provide or in connection with the provision of a Service
Fair Use Policy a policy so titled and issued under clause 6
FTA Fair Trading Act 1986 (NZ)
FTA Consumer same as ‘consumer’ in the FTA
FTA Consumer Contract same as ‘consumer contract’ in the FTA
General Terms the terms in Part C
GST Goods and Services Tax within the meaning of the Australian GST Act or the New Zealand GST Act (as applicable)
IDC a code that identifies this version of our Customer Terms ie CMSFOA20159001-AJ
Inbound Number a 1300, 13 or 1800 number or any other number that functions as a virtual telephone number that can be routed to flexible answer points

 

The expression: means:
Insolvency Event includes an event where a receiver or receiver and manager is appointed over any of your property or assets, an administrator, liquidator or provisional liquidator is appointed to you, you enter into any arrangement with your creditors, you become unable to pay your debts when they are due, you are wound up or become bankrupt, or any other analogous event or circumstance occurs under the laws of any jurisdiction
Instant Messaging SMS, iMessage and any similar instant messaging service by which you and we can exchange text or voice messages
Internet Service a Service that provides access to the Internet
Intervening Event an event beyond our reasonable control which interferes with and prevents us from providing the Services to you. Such events include any act or omission of our Partners, any disruption to our or our Partners’ networks, infrastructure and equipment, failure of any electrical power supply, changes to any laws or regulations, and acts of God, lightning strikes, earthquakes, floods or other natural disaster
Law laws, Acts of Parliament, regulations, mandatory standards and industry codes and including the requirements or directions of any Regulator
Listed Carriage Service as defined in the Telecommunications Act (but covers most public voice and data communications services)
Network see clause 29
New Zealand GST Act Goods and Services Tax Act 1985
Numbering Plan the Australian Telecommunications Numbering Plan or the New Zealand Telecommunications Numbering Plan (as applicable)
Operational Directions see clause 9
Our Facilities Facilities we own and/or operate
Partner a third party that, under a contract with us, provides (a) access to Facilities they manage or maintain or (b) content or (c) a service – that we resupply to you
Partner Facilities Facilities that are managed or maintained by a Partner
Partner Requirements see clause 10
PDH personal, household or domestic

 

The expression: means:
Periodic Entitlements see clause 5
Plan a particular set of features, entitlements, term of contract, Charges and special conditions in connection with a Service
PMSI a purchase money security interest under the Australian PPS Law
Price List see clause 61
Privacy Act Privacy Act 1988
Product goods and / or services
Regulator includes (where they have jurisdiction) the Australian Communications and Media Authority, the Australian Competition and Consumer Commission and any other relevant government or statutory body or authority and the Telecommunications Industry Ombudsman and Communications Compliance Limited and (where it has jurisdiction) the New Zealand Commerce Commission and any other relevant New Zealand government or statutory body or authority
Security Period in respect of any Equipment means the applicable period, if any, under clause 36(c)
Service a service (and includes Equipment) which we provide to you, including but not limited to (a) a Standard Telephone Service; or (b) a carriage service of a kind specified in the Telecommunications Regulations 2001 (which includes Internet Services); or (c) ancillary goods or service of a kind specified in the Telecommunications Regulations 2001
Service Level Agreement a written service quality assurance titled as such
Service Schedule terms and conditions that apply to particular Services, usually as set out in a document titled as such
Service Start Date see clause 27(c)
Site see clause 38
SLA a Service Level Agreement
Spam an unsolicited commercial electronic message within the meaning of the Spam Act
Spam Act Spam Act 2003
Special Promotion a special promotion we may offer from time to time, on terms we notify in connection with the offer

 

The expression: means:
Standard Telephone Service as in section 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999
TCP Code Industry Code C628:2012 Telecommunications Consumer Protections Code
TCP Customer (a)      a person who acquires a Telecommunications Product from us for the primary purpose of personal or domestic use and not for resale; or

(b)      a business or non-profit organisation which acquires or may acquire one or more Telecommunications Products which are not for resale and, at the time it enters into a contract with us:

(i)         does not have a genuine and reasonable opportunity to negotiate the terms of the contract; and

(ii)       has or will have an annual spend with us which is, or is estimated on reasonable grounds by us to be, no greater than $20,000

Telecommunications Act Telecommunications Act 1997
Telecommunications Goods any goods we supply for use in connection with the supply of a Telecommunications Service, whether or not the goods are supplied in conjunction with, or separately from, a Telecommunications Service
Telecommunications Product Telecommunications Goods and/or a Telecommunications Service
Telecommunications Service ·         a Listed Carriage Service or any service we supply in connection with that service; and

·         a content service (other than a subscription broadcasting service or a television subscription narrowcasting service) we provide in connection with the supply of a Listed Carriage Service

Unfair in relation to a term in a Consumer Contract means the same as in section 24 of the ACL
Walk Away Rights the right to cancel your Contract (even during a minimum or fixed term) and pay only usage or network access charges to the date your Contract ends, and outstanding amounts for installation of Equipment, and outstanding amounts for Equipment that is compatible with other suppliers’ services
We, us, etc see clause 2

 

The expression: means:
Wholesaler Supplier Withdraw Fee unless stated otherwise – Telstra and/or Optus and/or NBN Co Ltd and/or Chorus

The fee that maybe imposed by the carrier if an order is cancelled between the Commitment Date and the Contract Commencement Date

Part D – ADSL Internet Service Schedule

115. Partner Requirements – ADSL Services

Where we supply you with an ADSL Internet Service:

  • The Service can only be provided over a copper wire pair approved by Telstra Corporation where Telstra Corporation or a reseller of Telstra Corporation supplies an operational standard telephone service over that copper wire pair.
  • You warrant to us that you are the same end user to whom Telstra Corporation or a reseller or agent of Telstra Corporation supplies such a standard telephone service over that copper wire pair.
  • You acknowledge that the ADSL Internet Service will only be supplied for so long as you continue to acquire such a standard telephone service over that copper wire pair.
  • You acknowledge that the ADSL Internet Service may be terminated where you cease to acquire, or suspend or terminate, such a standard telephone service over that copper wire pair;
  • You acknowledge that if an ADSL Internet Service has been terminated under clause 115(d):
    • our Wholesale Supplier may charge an early termination fee in respect of the ADSL Internet Service;
    • we may recoup that early termination fee from you;
    • if you want the ADSL Internet Service reconnected, our Wholesale Supplier may charge us a connection fee; and
    • we may recoup that connection fee from you.
  • You acknowledge that, in some instances such as where you are acquiring a monitoring service (meaning a service for the monitoring of your premises such as remote alarm services), additional equipment at your premises such as central splitters and network termination ces must be installed by you at your own cost before the ADSL Service can be provided. This additional equipment must be installed prior to ADSL Service activation
  • You acknowledge that the installation and operation of the ADSL Service may cause temporary disruption in the standard telephone services received by you or a monitoring service.
  • You acknowledge that the installation and operation of a monitoring service may cause temporary disruption to the ADSL Service.
  • You acknowledge that the installation and operation of the ADSL Service may mean that some incompatible products that might have been available from Telstra Corporation to you will not be supplied to the you using that copper wire pair – a complete list of incompatible products is available upon request).
  • You acknowledge and must ensure that any provider of a monitoring service used by you has been notified that:
    • installation and operation of an ADSL Service may cause temporary disruption in the standard telephone services or a monitoring service received by you; and
    • installation of equipment at your premises such as central splitters and network termination ces may be required under clause 115(f).
  • As far as the law allows, you release our Wholesale Supplier and its third party supplier(s) from all liability to the you, and you indemnify them against all costs, expenses, liability, loss or damage incurred or suffered by them in conjunction with any claims, actions or proceedings against them (including third party claims or claims by you or Telstra Corporation) arising out of the following (to the extent that the liability is caused by the provision or cancellation of the ADSL Service):
    • disruption of your telephone service or monitoring service;
    • cancellation of the ADSL Service;
    • suspension of the provision of the ADSL Service or to a particular internet address(es);
    • cancellation of, or refusals to provide, any incompatible products; and
    • possible breaches of the Telecommunications (Customer Service Guarantee) Standard in respect of you.