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Access Net
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General Terms and Conditions for Internet Services
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Terms and conditions for subscriber use of Access Net Internet Services
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1. Definitions and Interpretation
1.1 Access Net means Access Net Internet Services Pty Ltd (ACN 082 142 872) or any of its affiliates and assigns.
Agreement means the Application and these terms and conditions as varied by Access Net.
Application means your application to us for Service, completed in full whether by post, email, web or over the phone and accepted by Access Net by providing the Service.
Commencement Date means the date on which Access Net commences providing the Service to Customer.
Minimum Subscription Period means the calendar month from and including the Commencement Date.
Customer Accounting Period means the calendar month commencing from the Commencement Date
Customer means a person whose Application is accepted by Access Net.
Law means any law (including common law), regulation, standard or code of practice including any Law governing the Service or this Agreement.
Provider means any of Access Net's infrastructure, service or utilities providers including providers of infrastructure, services or utilities used in providing the Services;
Service means the provision of services to access and/or utilise the Internet including services to host webpages on its servers and to provide electronic mail and any other services as may be introduced and provided by Access Net.
1.2 Words denoting the singular include the plural and vice versa. Including and include are not to be treated as words of limitation.
2. Fees and Charges
2.1 From the Commencement Date, the Customer will pay the fees and such other charges relating to the Service or this Agreement at the rates indicated in the Application or such other rates as may be prescribed by Access Net from time to time (Fees). Fees are payable at or within the times stated in any invoice issued by Access Net and are non-refundable. Access Net may charge interest on any overdue Fees, at the rate specified in Access Net's invoice, from the due date for payment until the date of full payment together with any prevailing reminder fee prescribed by Access Net.
2.2 Customer will pay to Access Net such security deposits as Access Net may require and will pay additional deposits if required by Access Net.
2.3 Customer must pay Fees even if Customer disputes the Fees. In the event that a dispute is decided by Access Net in Customer's favour, Access Net will refund to Customer any excess amount paid by Customer free of interest.
2.4 If multiple log-ins are made by any users via Customer's service, Customer must pay on demand to Access Net additional Fees as if such users had signed up individually with Access Net.
2.5 Customer must pay on demand to Access Net any Fees incurred by any unauthorised or illegal log-ins.
2.6 Customer must pay and will indemnify Access Net against any charges incurred as a result of the use or purported use (whether authorised or unauthorised) of Customer's service including international and local telecommunications charges.
2.7 All Fees and other amounts payable by Customer under this Agreement are subject to Goods and Services Tax ("GST"). All taxes payable including GST will be borne solely by Customer as of post 30 June 2000. Where charges are paid in advance, the portion of charges relating to this post 30 June 2000 will be subject to GST.
2.8 Customer must pay all telecommunications charges (including STD charges if applicable) for use of Service. Access Net does not assess what telecommunications charges apply to the location from which customers connect to an Access Net Point of Presence.
2.9 If a credit card number or a direct debit authority has been supplied for billing purposes, this is taken as permission to bill the card or bank account for any money owing to the ISP until otherwise notified.
2.10 Customer is required to collect email from their Access Net postbox at least once weekly.
3. Access Net's Rights
3.1 Access Net has the right to manage and control access to systems and information stored within the Access Net system as Access Net deems appropriate. Access Net may vary or suspend the Service including removal of content of webpages hosted on its servers, removal of postings on its news service and the blocking of electronic messages through its mail servers.
3.2 Access Net reserves the right to disconnect customers after a specific duration of idle time.
3.3 Access Net will maintain a 'no busy signal policy' dependant on all suppliers, modems and access servers functioning correctly.
3.4 Access Net communicates with Customer by email to Customer nominated email address, default, Access Net supplied postbox.
3.5 Access Net service terms, conditions and prices are subject to change at 30 days emailed notice.
4. Obligations
Customer will, at Customer's own cost:
(a) be responsible for the set-up or configuration of Customer's equipment and obtaining all licences, consents, approvals and rights for access to and use of the Service;
(b) be responsible for all information retrieved, stored and transmitted through the Service and for managing the use of storage capacity so that it does not exceed the capacity allocated to Customer and/or cause congestion in Access Net's network;
(c) not intentionally attack, damage or otherwise interfere with Access Net's network and/or the Service or use it to cause harm to any other person including other users of the Service or other Internet service providers;
(d) not send unsolicited bulk emails to third parties using the Access Net network;
(e) comply with any Laws in connection with the Service;
(f) not share the Service with any person without the prior written approval of Access Net and will use the Service only for the purpose for which it is subscribed.
5. Security
5.1 As information transmitted through the Internet is generally not confidential, Access Net does not guarantee the protection of Customer's privacy. Customer will take all necessary measures (including changing Customer's password from time to time) to protect the secrecy of Customer's User Identification ('Login') and/or password. Access Net is not liable for any loss suffered by Customer or any third party due to any wrongful or fraudulent use of Customer's service by Customer or any other person.
5.2 Where a Login is necessary to access the Service, Customer will use only Customer's own Login.
5.3 Customer does not acquire rights to any mailbox number, the Login, IP address, circuit reference and any codes assigned to Customer by Access Net and Access Net reserves the right to change or re-assign the same to Customer at its sole discretion without being liable to Customer for any loss suffered by Customer.
5.4 Access Net will not perform system backups on information stored within its system. Access Net is not responsible or obligated to provide historical data or to assist Customer in downloading, faxing or reading to Customer any of Customer's electronic mails.
5.5 If at any time Customer requests Access Net to reset Customer's password, Customer must immediately reset that password to a new password.
5.6 Customer must immediately notify Access Net of any unauthorised use of Customer's service or any other breach of security known to Customer.
6. Software
6.1 Subject to clause 4, if Access Net provides software for use with the Service, Customer is responsible for ensuring that it is suitable for Customer's needs (including its compatibility for use with the Customer's equipment)
6.2 Subject to clause 4, Access Net is not responsible for software not distributed, approved or recognised by Access Net including software downloaded from the Internet. If Customer uses such software in connection with the Service, Access Net will not be liable for any fault, loss and/or damage resulting directly or indirectly from such use.
7. Changes in Service
Customer may change the usage plan at any time. The effective date of such change will be the first day of the Customer's Accounting month subsequent to the Customer's notice.
8. Termination
8.1 Customer may terminate this Agreement at any time. The cancellation will take effect on the last day of the Customer's Accounting month subsequent to the Customer's notification. Access Net may at any time terminate this Agreement at any time with prior notice to Customer.
8.2 Access Net may terminate this Agreement immediately if:
(a) Customer has breached any provision of this Agreement;
(b) Customer has at any time provided any false or incomplete information to Access Net;
(c) in the opinion of Access Net or any regulatory authority, it is not in the public interest to continue providing the Service to Customer;
(d) (where Customer is an individual) if Customer dies or is declared a bankrupt; or
(e) (where Customer is a corporation) if Customer becomes insolvent, subject to administration or receivership or ceases to carry on business or is subject to anything having a similar effect.
9. Liabilities of Customer upon Termination
9.1 If this Agreement is terminated pursuant to clause 8, Customer will be liable for all Fees up to and including the expiry date of the relevant Minimum Subscription Period or the termination date stated in the termination notice, whichever is later. These Fees are payable by Customer within 30 days of termination.
9.2 Access Net may use any security deposits paid by Customer and Customer credit card supplied for billing to offset any amounts due from Customer under this Agreement or any other agreement between Access Net and Customer, and any remaining balance will then be refunded to Customer free of interest.
9.3 Indemnities given by Customer and Customer's obligations of confidentiality survive the termination of this Agreement.
10. Suspension of Service
10.1 Access Net may at any time in its sole discretion suspend any Service (Suspension), without incurring any liability or prejudicing any of its other rights or remedies, for whatever reason, including:
(a) where Access Net suspects that Customer's Service has been hacked or accessed by an unauthorised person or that the security of Customer's Service has been compromised in any way; or
(b) where any Fees payable by Customer are overdue or any deposit or increase in Fees required by Access Net is not paid by Customer.
10.2 Upon Suspension, the Service will be deemed to be terminated and Customer will be liable for all Fees up to the date of Suspension and if the Minimum Subscription Period has not expired, Customer will be liable for all Fees up to the end of the relevant Minimum Subscription Period. Customer will also be liable for any reminder
fees invoiced by Access Net following Suspension and prior to any termination of this Agreement pursuant to clause 8 at rates prescribed by Access Net.
10.3 Access Net may, in its discretion, reconnect the Service or service(s), as the case may be, in which event this Agreement will be deemed to continue as if it had not been terminated. Access Net reserves the right to impose on Customer a reactivation fee and such other fees as it deems appropriate.
11. Support
Access Net may, but is not obligated to, provide Customer with technical support. Access Net does not guarantee such support and will not be liable for any loss or damages to equipment, software, information incurred by Customer in connection with such support. Access Net reserves the right to impose charges for support services provided to Customer. Access Net's invoice will be evidence of Customer's request for such services. Access Net will only provide support for equipment which is approved by the relevant statutory authority such as Austel for modems.
12. Limitation of Liability
12.1 When the Customer is a consumer as defined by any relevant law such as the Trade Practices Act 1974 ('Consumer'), then certain terms will be implied into this Agreement for the benefit of the Consumer and, where prescribed by law, those terms cannot be modified or excluded by this Agreement ('Statutory Warranties'). Two of these Statutory Warranties are implied warranties that Access Net will provide services to a Consumer with due care and skill and that any goods supplied to a Consumer in connection with those services will be reasonably fit for the purpose supplied. In all other cases and except where inconsistent with these Statutory Warranties, the provisions of sub-clauses 12.2 to 12.5 and clause 13 apply.
12.2 For Customers who are not Consumers, Access Net's liability for breach of a Statutory Warranty is limited to (at the election of Access Net):
(a) in the case of services, supplying the services again or the cost of having the services supplied again;
(b) in the case of goods, the lowest of the cost of replacing the goods, acquiring equivalent goods or having the goods repaired.
12.3 Except in relation to breach of a Statutory Warranty, Access Net excludes all liability for:
(a) breach of any express or implied term, condition or warranty; and
(b) negligence, in connection with its performance of this Agreement. Except in relation to breach of a Statutory Warranty, Access Net is not liable for any loss of information caused as a result of any interruption, suspension, or termination of the Service, or for any information available, received or transmitted through the Service
12.4 Except in relation to breach of a Statutory Warranty, Access Net is not liable for:
(a) any economic loss or damage including any loss of revenue, profits, actual or potential business opportunities, contracts or anticipated savings or profits;
(b) any indirect or consequential loss or damage;
(c) any loss or damage relating to the acts or omissions of any third party including any acts or omissions by a Provider; and
(d) any loss or damage resulting from computer viruses or other defects.
12.5 Access Net makes no warranty or representation regarding any advertiser, goods, software or services purchased or obtained through the Service or any transactions entered into through the Service. Customer's participation in promotions of advertisers is solely between Customer and such advertiser and Access Net is not liable for any loss or damage incurred as a result of such dealings or the presence of such advertisers on the Service.
13. Indemnity
Customer indemnifies Access Net at all times against all claims, actions, proceedings, costs, expenses (including legal costs on a full indemnity basis), demands, liabilities, losses (whether direct, indirect or consequential) and damages which Access Net may incur arising out of or pursuant to any negligent or illegal act or omission by Customer, breach by Customer of the terms of this Agreement or any of Access Net's Acceptable Use Policies, or any unauthorised use by Customer of the Service.
14. Confidentiality
14.1 Customer must not disclose to any person or use for any purpose any confidential information which comes to Customer's knowledge in connection with the Service or this Agreement.
14.2 Access Net may collect, store, transfer and/or disclose to third parties, for any purpose (including where required by a credit reference provider or any Law), any information or data (whether confidential or not) relating to Customer's registration to the Service, use of the Service or this Agreement including data.
14.3 Upon written request by Customer, Access Net must notify Customer of any data or information collected, stored, transferred and/or disclosed by it to a third party.
14.4 Access Net may access Customer's content and other parts of the Service as necessary to identify or resolve technical problems or to respond to service complaints.
15 Variation and Waivers
15.1 Access Net reserves the right to amend these terms and conditions any service plans of Fees at any time upon notice (in such form as may be determined by Access Net) to Customer. Notice via electronic mail to the Customer's electronic mail addresses, by the posting on Access Net's website and the Customer's continued use of or subscription to the Service will be sufficient notice for this purpose.
15.2 Any provision of this Agreement may be waived only if Access Net so agrees in writing.
15.3 The failure of Access Net to exercise any of its powers, rights or remedies under this Agreement will not constitute a waiver of those powers, rights or remedies.
16. Assignment
Customer must not assign or agree to assign any right and must not delegate performance of any of its obligations under this Agreement.
17. Force Majeure
If Access Net is prevented by reason of any event or circumstance beyond its control and without the willful default or negligence of Access Net (Force Majeure Event) from performing any of its obligations under this Agreement, it will not be liable to Customer for not performing, or for the manner of its performance of, such obligation to the extent which, and for the period of time during which, it is so prevented.
18. Governing Law and Jurisdiction
This Agreement is governed by the laws in force in Victoria, Australia and each of Customer and Access Net submit to the exclusive jurisdiction of the Victorian courts.
19. Notices
19.1 Subject to clause 21.2 no communication from Customer may be effected by electronic mail or any other electronic media without the prior written agreement of Access Net and will not be deemed received by Access Net until such electronic communication has actually been received by a person designated by Access Net to receive such communication.
19.2 Notices pursuant to clause 7 may be sent to Access Net by electronic mail at info@access.net.au and notices pursuant to clause 8.1 may be sent to Access Net by electronic mail at accounts@access.net.au .
20. Severability
If any provision of this Agreement is prohibited, invalid or unenforceable that provision will be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement.
21. Legal Costs
Customer will be liable for and indemnifies Access Net against all costs and expenses (including legal costs on a full indemnity basis) which Access Net may incur or pay in protecting or enforcing any rights under this Agreement (including Customer's failure to pay Fees).
22. Entire Agreement
This Agreement constitutes the entire agreement between Access Net and the Customer. No understanding, arrangement or provision not expressly set out in this Agreement will bind the parties.
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