ISP NETWORKS PTY. LTD.
A.B.N. 72 105 520 376
STANDARD TERMS FOR BUSINESS TELEPHONE AND INTERNET SERVICES
The following Standard Terms will apply to agreements for Services made with ISP Networks Pty. Ltd. A.B.N. 72 105 520 376 unless there is a specific agreement to vary or exclude them signed by ISPNET and the Customer.
In addition to these terms, agreements for Services made with ISPNET will include one or more Tariff Sheets relevant to the Services and one or more Application Forms completed by the Customer or by ISPNET on behalf of the Customer and accepted by ISPNET in writing.
1. AGREEMENT FOR SERVICE
1.1 Making of the Agreement
A legally binding agreement is made between ISPNET and the Customer when ISPNET accepts your Application Form for Services which may be completed and signed by you personally, submitted online or completed by ISPNET on your behalf over the telephone. The person applying for the Service confirms to ISPNET that they have full power and authority to do so on behalf of the Customer.
1.2 Period of Agreement
Your agreement will commence from the date of installation or transfer of the Service from your existing Carrier and continue for the Term and after that continues until terminated by you or ISPNET in the manner set out below. You should check any agreement you may have with an existing Carrier to make sure that you understand what effect transferring your Service will have.
1.3 Services Included
ISPNET’s aim is to provide high quality Services to its Customers. Your agreement will extend to each of the Services listed on the Application Form and will be subject to the matters set out in the Special Conditions on the Application Form and on the Tariff Sheet identified on the Application Form. It will also include any new numbers or Services that you request in the future and that ISPNET agrees to provide. You may also ask to change to a different Tariff Sheet in the future but only after any agreed fixed period has expired.
1.4 Additional Facilities
ISPNET can supply all of the additional facilities available on the telephone network generally at any time. The cost and terms of supply for any additional facilities will be explained to you at the time when you place an order. The cost of additional facilities may vary if ISPNET’s suppliers increase their charges.
1.5 Special Terms
Special terms which will apply to equipment and Services supplied by ISPNET appear in Schedules A, B and C.
1.6 Eligibility for Service
You agree to hold a current Australian Business Number throughout the term of your agreement.
1.7 Administration
Without prejudice to ISPNET’s rights under Clause 11.1(b) if the Customer becomes or ceases to be an Eligible Company, then each time that you or the Administrator requests that ISPNET continue to supply Services, ISPNET may open one or more new accounts and may charge the new account holder an in place connection fee for each Service at the rate shown on ISPNET’s relevant Tariff Sheet for each such account.
1.8 Commissions
ISPNET may pay commissions to buying groups or other introducers of business.
2. PAYMENT OF CHARGES
2.1 To pay the Charges
You agree to pay the Charges without any set-off or deduction within 14 days of the end of each Billing Period by payment by bankers direct debit (or such other means as ISPNET may accept) together with interest in respect of any payments that are not made by their due date at the rate provided in Clause 10.4.
2.2 Reconnection and other Fees
Without prejudice to any other rights or remedies ISPNET may have, ISPNET will charge you a fee of $11.00 (including GST) if you do not pay the whole or any part of your bill by the date it falls due and may also charge you a reasonable reconnection fee for resuming the Services after they have been suspended or terminated as a result of your breach of your agreement.
2.3 Credit Cards
ISPNET may apply a surcharge of up to 5% if you pay your bill by credit card depending on which card you use.
2.4 Non Payment
If you fail to pay any bill by its due date then you will forfeit the benefit of the relevant Reward Program credit that you would otherwise have been entitled to in respect of that month or any discount to which you would otherwise have been entitled.
3. OTHER OBLIGATIONS TO ISPNET
3.1 Provide Security
If requested to do so by ISPNET you will deposit with ISPNET on account of future Charges a sum equal to the amount that ISPNET estimates you are likely to incur for the Services in any forthcoming monthly period and ISPNET may retain that sum as security for your future payments for so long as ISPNET considers it necessary to do so. Alternatively ISPNET may require that you provide one or more Guarantees of payment of the Charges.
3.2 Illegal and Immoral Purposes
You agree not to use the Services in an illegal or immoral way or so as to cause nuisance or annoyance to any other person and at all times to comply with the Acceptable Use Policy. You further agree that you will not make life threatening or unwelcome calls to any other person.
3.3 Supply Information
You must inform ISPNET if there is any change of ownership or control of the Customer or if any events occur which may prevent or inhibit you from paying your bills or if you become insolvent or if any directors or partners of or in the Customer are convicted of any crime.
3.4 Former Carrier
You will pay all charges levied by your former Carrier up to the time when your Services are transferred to ISPNET and indemnify ISPNET against any claims or losses arising from the transfer of your Service.
3.5 Transfer to a new Carrier
If you decide to transfer to a new Carrier you will pay ISPNET all moneys due to ISPNET under the terms of your agreement with ISPNET before doing so.
3.6 Secrecy
The Customer is responsible for maintaining the secrecy and confidentiality of all identification and log-in information required by the Customer to access the Services.
4. PLANS
4.1 Tariff Sheets
The plans available from ISPNET are described on a number of different Tariff Sheets that you can obtain from ISPNET’s offices, sales outlets or by asking ISPNET to send them to you by post, fax or e-mail.
4.2 Changes to Plans
ISPNET may change the nature of its plans and/or increase the rates shown on its Tariff Sheets from time to time. If these changes affect you ISPNET will give you 21 days prior notice of the change and you may cancel your agreement during the period of 42 days of receiving such notice subject only to payment in full of all Charges and costs incurred prior to the cancellation taking effect.
4.3 International Costs and Roaming Charges
The amount that you are charged by ISPNET for international calls and calls made whilst abroad or using other suppliers or roaming services will vary in accordance with the charges imposed by suppliers of such services.
4.4 Terms that Apply to all Plans
The following terms apply to all of ISPNET’s plans save where the contrary is stated on the relevant Tariff Sheet: -
(a) Rates are quoted in Australian $ per minute; and
(b) Rates quoted are inclusive of GST.
5. FIXED TERM PLANS
5.1 Fixed Terms
For certain Services the relevant Tariff Sheet may specify a minimum Term and you will only receive the relevant rate during the Term and whilst using a telephone system that has been pre-programmed by ISPNET.
5.2 Termination of Other Fixed Terms
(a) If there is a fixed monthly charge for the Service under a fixed Term then ISPNET will bill out any unexpired period at the specified rate as soon as it is aware that termination will take place.
(b) If you terminate your fixed Term agreement in accordance with Clause 11.2 and such termination would result in your agreement coming to an end prior to the end of the Term you shall pay to ISPNET a termination payment equal to:
(i) 20% of the amount of your average monthly bill during the Term; multiplied by
(ii) the number of months or parts of months of the unexpired Term at the date of termination; plus
(iii) GST.
6. OPTIONS
6.1 General
ISPNET offers a number of Options and with ISPNET’s prior approval you may choose one of those identified as available on the Tariff Sheet for your Services and change this selection by giving at least 14 days notice to ISPNET to take effect no earlier than at the commencement of your next Billing Period.
6.2 Capped Calls
Under this Option either:
(a) any direct dialled long distance calls that you make which last for no longer than the duration shown on the Tariff Sheet for your Services; or (depending on which Option you have chosen),
(b) any direct dialled calls that you make to mobile telephones within Australia which last for no longer than the duration shown on the Tariff Sheet for your Services,
will not cost more than the relevant fixed cost shown in the Tariff Sheet for the duration of the initial period. In either case the cost will revert to the normal tariff for the type of call in question shown on your Tariff Sheet after the initial period.
7. REWARD PROGRAMS
7.1 General
ISPNET offers a number of Reward Programs and with ISPNET’s prior approval you may choose one of those identified as available on the Tariff Sheet for your Services and change this selection by giving at least 14 days notice to ISPNET to take effect no earlier than at the commencement of your next Billing Period.
7.2 Benefit
Under the terms of ISPNET’s Reward Programs, the amount of your Eligible Charges in each Billing Period will entitle you to a credit for the maximum amount (if any) and at the rate shown on the Tariff Sheet and/or Application Forms for your Services in the next Billing Period to spend at ISPNET’s authorised redemption partners.
7.3 Program Cards
If you are issued with a debit card to draw upon credits earned, the card will be issued subject to the terms and conditions imposed by the card issuer, a copy of which will be provided when you request entry into that program and will be sent to you with the relevant card.
8. BILLING
8.1 Regular Bills
We will aim to bill you once each month for Charges for Services used by you subject to ISPNET’s right to bill you on termination. Any Charges that we carry forward and do not bill at that time can be billed by us within 190 days from when the charge was incurred by you. You will be sent an emailed copy of your bill but you can also access it by logging on to the ISPNET Website.
8.2 Format of Bills
All of our bills are itemised and designed to be easy for you to understand. If you need clarification of any entries on your bill you should contact us as soon as possible and in any event before the time for paying the bill has expired.
8.3 Disputes
If you dispute any item on your bill you must pay the whole of the bill including the disputed balance within the time fixed for payment and ISPNET will refund any amounts that it agrees should not have been charged if it is established to ISPNET’s reasonable satisfaction that you are not liable for the same.
9. EXTENT OF ISPNET’S LIABILITY TO YOU
9.1 Basic Principal
Unless it may not do so because of the principles of an Industry Code or by the general law or the regulations of ACA or a body competent to impose such controls, whilst ISPNET will use all reasonable care in providing the Services, ISPNET accepts no responsibility for any loss or damage of any nature relating to the same in any way.
9.2 Maximum Liability
If the principles of an Industry Code or the general law or the regulations of ACA or a body competent to impose such controls require ISPNET to take responsibility for any loss or damage, then such responsibility will be limited to one of the following at ISPNET’s option: the replacement or repair of the relevant goods or the supply of equivalent goods or the payment of the cost of replacing the goods or of acquiring equivalent goods or the supply of the relevant Services again or the payment of the cost of having the Services supplied again.
9.3 Consequential Loss
ISPNET will never be responsible for lost profits or opportunities or for pure economic loss.
9.4 Causes Outside of ISPNET’s Control
ISPNET will not be liable to you in any event where provision of the Services is inhibited or prevented by any cause outside of ISPNET’s reasonable control.
9.5 Codes of Practice
ISPNET will apply the Industry Codes and the Internet Industry Privacy Code of Practice if inconsistent with the terms hereof.
10. EXTENT OF YOUR LIABILITY TO ISPNET
10.1 Damages
If you fail to abide by the terms of your agreement you must compensate ISPNET for any loss that it suffers as a result.
10.2 Indemnity
If you fail to abide by the terms of your agreement, in addition to meeting any claims that ISPNET may bring against you, you will take responsibility for and hold ISPNET harmless from any liability to ISPNET arising as a result of such failure as well as any sums by way of indemnity legal and other costs, charges and expenses ISPNET may incur as a result of such matters.
10.3 Authority
You authorise ISPNET to make any payments or to comply with any demands in respect of such failures by you, without any reference to or further authority from you, and you agree that any such payment shall be binding on you.
10.4 Interest
You will pay interest at the rate of 2% over the rate provided for in the Penalty Interest Rates Act 1983 (Vic) during the period that any moneys that you are liable to pay to ISPNET are outstanding (whether for Charges or by way of damages or indemnity).
11. TERMINATION AND SUSPENSION
11.1 By ISPNET
ISPNET may:
(a) Bring your agreement to an end at any time (other than during an agreed fixed period) on giving 30 days prior notice in writing and without giving any reason for doing so subject to refunding any unexpired pre-paid credit to you.
(b) Bring your agreement to an end or suspend the Services without notice if it has reasonable grounds to suspect that you will not meet present or future Charges payable to ISPNET and it has taken reasonable steps to bring this to your notice.
(c) Terminate your agreement or suspend the Services if you are in material breach of your agreement or fail to pay any Charges that are due for payment.
(d) Suspend the supply of the Services for a reasonable period for operational reasons.
(e) Suspend the supply of the Services if it has reasonable grounds for suspecting fraud or illegal conduct in relation to the Services.
(f) Suspend the supply of the Services in case of emergency.
(g) Terminate your agreement or limit or vary performance of its obligations or intercept the Services in order to comply with legislation or regulatory requirements or the order of a competent court or agency.
11.2 By You
You may by written notice to ISPNET signed by the Customer:
(a) terminate your agreement during the period of 42 days after receiving notice of increase of Charges under Clause 4.2 subject only to payment in full of all Charges and costs incurred prior to the effective date of termination;
(b) terminate your agreement at any time by giving 30 days prior notice to ISPNET expiring at the end of a Billing Period.
11.3 Consequences of Termination
Any balance accrued due to you but undrawn under any Reward Program will be cancelled if you terminate your agreement.
12. DISPUTES
12.1 What you should do
If you are unhappy with the Services or with any actions taken by ISPNET you should give notice of this to ISPNET of this in accordance with Clause 15.
12.2 Action to be taken
Both you and ISPNET’s complaints officer must take all reasonable steps to discuss the matter and seek to resolve the same within 21 days.
12.3 Telecommunications Industry Ombudsman
You agree not to refer any matter to the Telecommunications Industry Ombudsman until you have exhausted the previous steps outlined in this Clause 12 in a genuine attempt to resolve the matter.
13. PRIVACY
13.1 Collection of Information About You
It is necessary for ISPNET to collect information about you for the purposes of operating the Services and also for the purposes of billing you and assessing and controlling credit risk including collecting unpaid accounts. Information may also be used for statistical purposes and for considering business efficiency and also for advertising and marketing purposes. A copy of our Privacy Statement is available on our website.
13.2 Who May Access the Information
Access to the information that ISPNET collects is available to you (subject to the limitations referred to in the Privacy Act 1988 (Cth)) but is otherwise restricted to ISPNET’s staff who need access to it for the purposes of carrying out their duties. It may also be passed to: -
(a) Carriers or resellers of Carrier services or other suppliers to ISPNET in connection with provision of the Services;
(b) Credit reference agencies used by ISPNET in assessing credit risk or notifying default; and
(c) Solicitors or debt collection agencies retained by ISPNET to collect unpaid accounts.
13.3 Consequences of Refusing to Provide Information
ISPNET will not enter into an agreement with you unless you agree to the provision and use of your personal information in this way.
13.4 Consent
By entering into your agreement you give your consent to the use of your personal information for these purposes.
14. VARIATIONS
14.1 Terms and Conditions
ISPNET may make changes to these terms and conditions from time to time by altering the version available on the ISPNET Website.
14.2 Plans
ISPNET may also alter its plans from time to time but if it alters the plan relevant to your Services you will be notified in accordance with Clause 4.2.
14.3 Application Form
The terms contained in the Application Form may only be varied in writing and signed by you and ISPNET.
15. NOTICES
15.1 Address for service
Notices should be given in writing to ISPNET or the Customer to the address, fax number or e-mail address shown on the Application Form unless new contact details have been notified by either Party to the other prior to service of the notice.
15.2 Deemed Delivery
ISPNET will be entitled to treat any notice as duly served if either:
(a) it is sent by post and is not returned as undeliverable by Australia Post; or
(b) if sent by fax and the fax is successfully transmitted to the correct number; or
(c) if sent by e-mail and the e-mail is not rejected by the system within 7 days after despatch.
15.3 Complaints officer
Notices to ISPNET’s complaints officer must be in writing, clearly addressed to ‘The Complaints Officer’ and sent to ISPNET at ISPNET’s address shown on the Application Form or any new address notified to you by ISPNET from time to time by Registered Post or delivered by hand to that address.
16. GENERAL
16.1 Applicable Law
Your agreement is subject to the laws of, and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria or the courts of the State in which you reside if that is different. Each Party waives its rights to claim that any action brought in that State is brought in the wrong or an inconvenient forum.
16.2 Waiver
(a) A failure or delay in exercise, or partial exercise, of a right arising from a breach of any provision of these terms and conditions is not to be regarded as, and cannot be relied upon as, a waiver of that right or an election not to exercise that right.
(b) No waiver or consent given by a Party may be construed as providing a waiver or consent in respect of any circumstances other than those strictly falling within the terms of the waiver or consent.
16.3 Assignment
(a) Your agreement may be assigned by ISPNET without the need for consent by you.
(b) Your agreement may not be assigned or novated in whole or in part by you.
16.4 Severability
If any provision of these terms and conditions is invalid or void and is not enforceable in accordance with its terms, that provision is severed and all other provisions of these terms and conditions which are self-sustaining and capable of separate enforcement without regard to the severed provision, are and continue to be valid and enforceable in accordance with their terms.
17. GLOSSARY OF TERMS AND RULES FOR INTERPRETATION
17.1 Glossary
In these terms and conditions:
“ACA” means Australian Communications Authority;
“Acceptable Use Policy” means ISPNET’s acceptable use policy from time to time as published on the ISPNET Website a copy of the current version of which is included in Schedule D;
“ACIF” means Australian Communications Industry Forum;
“Additional Charge” means a charge in accordance with ISPNET’s standard rates in effect from time to time;
“Administrator” means a liquidator, provisional liquidator, administrator of a company or deed of arrangement, or receiver and/or manager of an Eligible Company;
“Application Form” means the Application for Services completed by the Customer or by ISPNET on behalf of the Customer;
“Billing Period” means the period chosen by ISPNET for calculating your monthly Charges from time to time;
“Broadband” means the Broadband Service being a fast permanent broadband Internet connection using your telephone line or a specially installed digital network line or wireless fast broadband Internet connection using a mobile card and incidental data storage more fully described on the relevant Tariff Sheet. You can use your telephone line at the same time as the Internet;
“Capped Calls” means fixed charge calls as described in Clause 6.2;
“Carrier” means the operator of a telephone services network;
“Charges” means the cost of the Services (whoever the same have been used by) calculated at the rates shown in the relevant Tariff Sheet and Application Form as varied in accordance with these terms and conditions and any GST not included in the quoted price.
“ISPNET” means ISP NETWORKS PTY. LTD. A.B.N. 72 105 520 376 whose principal place of business is at Unit 2, 200 Turner Street Port Melbourne, Victoria 3206;
“ISPNET Website” means the web site at http://www.ispnet.com.au;
“ISPNET’s Normal Business Hours” means the normal hours during which ISPNET is open for business, as specified on the ISPNET Website from time to time;
“ISPNET’s Service Centre” means the site designated by ISPNET from time to time from which ISPNET can most conveniently and practicably provide off-site Technical Support Services and repairs;
“Customer” means the person named as such in the Application Form, the business entity using the Services from time to time and the person who has signed the Application Form as well;
“Eligible Charges” means the amount that you incur by way of Charges in each month for local calls, long distance calls, calls to mobile telephones, international calls, inbound calls to 1800 or 1300 numbers, monthly PSTN line rental, mobile calls and recurring monthly Internet plan Charges;
“Eligible Company” means a company that is being wound-up, or has a provisional liquidator acting, or is under administration, or has executed a current deed of company arrangement, or it or its property is subject to receivership and/or external management;
“Equipment for Supply” means the goods, Services and training (if any) more particularly described in the quotation and/or Application Form, which are to be supplied by ISPNET to the Customer;
“Guarantee” means a guarantee in writing from one or more guarantors acceptable to ISPNET in such form as ISPNET requires;
“Industry Code” means a code published by ACIF from time to time;
“Installation Date” means the date (if any) specified in the Application Form for the installation of the Equipment for Supply;
“Intellectual Property Rights” means copyright, trade mark, design, patent, semiconductor or circuit layout rights;
“Internet” means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;
“Reward Programs” means the Reward Programs described on the relevant Tariff Sheets;
“Operating Manuals” means the documentation relevant to instruction in the use of the Equipment for Supply more particularly described in the Application Form;
“Options” means the customer options described on the relevant Tariff Sheet;
“PSTN” means a public switched telephone network;
“Services” means a telephone Service (in the case of fixed line Service being either a PSTN line offering faster data transfer using a circuit switched network or integrated Services digital network line) or mobile phone Service which offers local, long distance and international calls and/or SMS Service at the charge rates and with the Options described in the relevant Tariff Sheets and any relevant Technical Support and Equipment for Supply. For an Additional Charge the fixed line Service can be modified to provide Broadband and/or SMS Service as well as voice calls and many other additional facilities described in the relevant Tariff Sheets;
“Site” means the location for delivery and installation of the Equipment for Supply as specified in the Application Form.
“SMS” means text messages sent on the short messaging service;
“SMS Service” means the SMS Service, being a service that allows you to send SMS messages via your computer more fully described in the relevant Tariff Sheet;
“Standard Terms” means the standard terms set out in these terms and conditions as varied from time to time;
“Tariff Sheets” means the individual sheets produced by ISPNET containing brief descriptions of rates and other charges payable and Options available in respect of the various Services packages that it offers to Customers;
“Technical Support Charges” means the charge for providing the Technical Support Services, as specified in the Tariff Sheet for your Services or if no such charge is specified then ISPNET’s standard rates from time to time;
“Technical Support Services” means telephone or on site support services;
“Telecommunications Industry Ombudsman” means the ombudsman established under the Telecommunications (Consumer Protection and Service Standards) Act 1999;
“Term” means any minimum period stated in the Application Form or any relevant Tariff Sheet;
“Warranty Period” means the period (if any) specified in the Application Form; and
“you” and derivations from that word are references to the Customer and references to “your agreement” are references to the agreement between ISPNET and the Customer.
17.2 Rules for the interpretation of these terms and conditions
In these terms and conditions unless the context otherwise requires:-
(a) references to these terms and conditions are references to these terms and conditions and the Schedules;
(b) references to Clauses and the Schedules are references to clauses of, and the schedules to, these terms and conditions;
(c) references to Parties or to a Party shall be a reference to the parties or a party to your agreement and includes references to their or its respective successors, permitted assigns, executors and administrators; and
(d) all covenants, liabilities, obligations and agreements given or entered into by more than one person are given or entered into jointly and by each of them severally.
17.3 Precedence
The documents which make up your agreement should be read in the following order of precedence and any inconsistency interpreted accordingly: -
(a) The Application Form;
(b) The Tariff Sheet; and
(c) These terms and conditions.
SCHEDULE A – TERMS RELATING TO THE SUPPLY OF EQUIPMENT AND TECHNICAL SUPPORT SERVICES
1. SPECIFICATIONS
1.1 Substitution
ISPNET may substitute any component of the Equipment for Supply or part of any component of the Equipment for Supply prior to delivery without consultation with the Customer and may in any other respect modify the Equipment for Supply if, in the reasonable opinion of ISPNET, the said substitution or modification:
(a) will not adversely affect the performance or capacity of the Equipment for Supply;
(b) will not alter the configuration of the Equipment for Supply in any material respect; and
(c) will not otherwise materially affect the obligations of ISPNET or prejudice the rights of the Customer.
1.2 Notice
If a substitution or modification is made under Clause 1.1 of this Schedule, ISPNET shall notify the Customer on or prior to delivery.
2. OPERATING MANUALS
2.1 Copies
ISPNET shall provide the Customer with such number of copies of each of the Operating Manuals as ISPNET determines acting reasonably.
3. SITE PREPARATION
3.1 Access
The Customer shall at its own expense prepare the Site, and access to the Site, prior to delivery. In so doing, the Customer shall comply with any directions or specifications issued by ISPNET.
3.2 Facilities
Without limiting the foregoing, the Customer shall ensure the supply of:
(a) adequate electric current;
(b) adequate electrical and mechanical fittings; and
(c) appropriate environmental conditions.
3.3 Delay
If ISPNET delays delivery of installation of the Equipment for Supply due to inadequate preparation of the Site or access to the Site, the Customer shall be liable to ISPNET for all reasonable costs and expenses incurred by ISPNET directly or indirectly as a result of such delay.
4. DELIVERY
Packing materials remain the property of ISPNET and shall be removed or otherwise disposed of at the sole discretion and direction of ISPNET.
5. INSTALLATION
5.1 Timing
ISPNET shall install the Equipment for Supply at the Site on the Installation Date. In the absence of agreement to the contrary, the installation shall be effected during ISPNET’s Normal Business Hours.
5.2 Assistance
The Customer shall provide ISPNET with such assistance, including the provision of personnel and facilities, as ISPNET reasonably considers necessary to ensure satisfactory installation of the Equipment for Supply. The Customer shall ensure ISPNET is granted all reasonable access, including necessary security clearances, for the purposes of complying with this Clause.
5.3 Early Installation
If ISPNET requests permission to install the Equipment for Supply prior to the Installation Date, the Customer shall use its best endeavours to prepare the Site and do all other things necessary to comply with the request and to accommodate early installation.
6. TRAINING
The price of the Equipment for Supply does not include a training fee unless specified by ISPNET in the quotation. ISPNET may provide additional training in the use of the Equipment for Supply, if requested by the Customer, subject to payment of an Additional Charge.
7. WARRANTIES – EQUIPMENT FOR SUPPLY
7.1 New Equipment
ISPNET warrants that the Equipment for Supply is newly manufactured unless otherwise specified.
7.2 Defects
ISPNET warrants that at the date of supply it believes the Equipment for Supply to be free from defects in materials and workmanship.
7.3 Warranty Period
The Customer may during the Warranty Period notify ISPNET in writing of any defect or suspected defect in the Equipment for Supply. ISPNET shall, to the extent necessary, inspect, replace or repair the Equipment for Supply at no Additional Charge and as soon as practicable after receiving notice from the Customer pursuant to Clause 7 of this Schedule.
7.4 Exclusions
ISPNET shall not be liable under Clause 7 of this Schedule if the defect is the result of:
(a) improper use or mismanagement by the Customer;
(b) operation of the Equipment for Supply other than in accordance with the Operating Manual;
(c) use of the Equipment for Supply in a manner not reasonably contemplated by ISPNET;
(d) modification of the Equipment for Supply not authorised by ISPNET;
(e) use of the Equipment for Supply in a manner contrary to law;
(f) subjection of the Equipment for Supply to unusual or un-recommended physical, environmental or electrical stress;
(g) reinstallation or moving of the Equipment for Supply by a person other than ISPNET;
(h) use of the Equipment for Supply by a person other than the Customer;
(i) the Customer’s failure to comply with its obligations to ISPNET;
(j) the Customer’s failure or refusal to install engineering changes or enhancements recommended by ISPNET; or
(k) the serial number being removed or defaced.
7.5 Excluded Equipment
ISPNET shall have no obligation under this Clause in respect of Equipment for Supply designated in the Application Form as being excluded from warranty coverage.
7.6 Title
Title in any Equipment for Supply whether original, repaired or replaced will vest in or remain with ISPNET until paid for in full.
7.7 Charges
If the Customer provides notice of a defect or suspected defect pursuant to Clause 7 of this Schedule and any subsequent inspection by ISPNET reveals no further obligation on ISPNET, the direct and indirect costs and expenses associated with such inspection shall be borne by the Customer.
8. TECHNICAL SUPPORT
8.1 Where Provided
ISPNET shall perform Technical Support on-site or off-site, according to ISPNET’s opinion as to the most practicable means of effecting the relevant Services for an Additional Charge unless specified in ISPNET’s quotation.
8.2 Timing
Upon receipt of a request for Technical Support, ISPNET shall use reasonable endeavours to provide a Technical Support engineer in person or by telephone as soon as reasonably practicable.
8.3 Notice
ISPNET will not be liable to perform Technical Support to remedy a defect in the Equipment for Supply if it has not received a written request from the Customer to carry out such Technical Support within two (2) days after the defect was discovered or ought reasonably to have been discovered by the Customer (whichever is the earlier).
9. HAZARDOUS CONDITIONS
9.1 Customer’s Duties
The Customer shall take all reasonable measures to anticipate and avoid the creation of hazardous conditions which may jeopardise the safety of any personnel responsible for providing the Technical Support Services.
9.2 Changes
In addition to and notwithstanding Clause 9.1 of this Schedule, the Customer shall, if reasonably requested by ISPNET, install such engineering changes or take such other measures as may be necessary to remove hazardous conditions detected by either Party.
9.3 ISPNET’s Rights
In the event a hazardous condition is detected by either Party, ISPNET may discontinue providing the Technical Support Service until such hazardous conditions have been removed.
10. ACCESS
10.1 Customer’s Duties
The Customer shall ensure ISPNET’s Technical Support personnel have full and safe access at all reasonable times for the purpose of providing the Technical Support Services. The Customer shall also ensure that such access conforms with any specifications issued by ISPNET from time to time.
10.2 Areas
The access referred to in Clause 10.1 of this Schedule includes access to:
(a) spare parts storage areas;
(b) such areas as are reasonably required by ISPNET to carry out the Technical Support Services; and
(c) suitable vehicle parking areas for ISPNET’s Technical Support personnel.
10.3 Facilities
Areas referred to in Clause 10.2 of this Schedule include, but are not limited to, unhampered working facilities, adequate light, heat and ventilation and suitable electric current outlet for testing purposes.
10.4 Escort
If reasonably requested by ISPNET, the Customer must provide a suitably qualified or informed representative to accompany ISPNET’s personnel and to provide such advice or assistance to those personnel as may be necessary in order to enable ISPNET to effectively perform the Technical Support Services.
11. CUSTOMER RECORDS
11.1 Records
The Customer shall keep such records relating to the use and performance of the Equipment for Supply as may be directed by ISPNET from time to time.
11.2 Access
The Customer shall permit ISPNET to have access to such records at all reasonable times including, but not limited to, all periods during which the Technical Support Services are being performed or during which preparations are being made for the Technical Support Services to be performed.
12. PRICE AND TECHNICAL SUPPORT CHARGES
12.1 Travel Allowance
If the Site is located at a distance in excess of fifty (50) kilometres from ISPNET’s Service Centre, ISPNET may make an Additional Charge in respect of the Technical Support Services for the time and travelling expenses of its Technical Support personnel in respect of travel beyond that fifty (50) kilometre limit to and from the Site.
12.2 Parking Charges
If parking is not made available by the customer for Technical Support personnel whilst performing onsite technical support services for more than 1.5 hours, then ISPNET may charge the cost of proximity parking incurred by our Technical Support personnel.
12.3 Spare Parts and Freight
The price of the Equipment for Supply and Technical Support Charges payable by the Customer are exclusive of GST, the cost of any spare parts and of freight and insurance charges unless otherwise stated in ISPNET’s quotation.
13. TITLE
13.1 Reservation of Title
Title in the Equipment for Supply will pass to the Customer upon full payment of the price, any Additional Charges and any interest due to ISPNET in respect of the supply of the Equipment for Supply.
14. RISK
14.1 Passing of Risk
Risk of loss or damage to the Equipment for Supply passes to the Customer upon delivery of the Equipment for Supply to the Site.
14.2 Safekeeping
Between the delivery of the Equipment for Supply to the Site and the passing of title, the Customer shall insure the Equipment for Supply with a reputable insurance company in favour of ISPNET in an amount equal to its replacement cost against all risks of loss or damage due to any cause.
15. INTELLECTUAL PROPERTY RIGHTS
15.1 Customer Duties
The Customer shall:
(a) notify ISPNET in writing as soon as practicable of any infringement, suspected infringement or alleged infringement of any third party rights;
(b) give ISPNET the option to conduct the defence of such a claim, including negotiations for settlement or compromise prior to the institution of legal proceedings;
(c) provide ISPNET with reasonable assistance in conducting the defence of such a claim; or/and
(d) permit ISPNET to modify, alter or substitute the infringing part of the Equipment for Supply at its own expense in order to avoid continuing infringement, or authorises ISPNET to procure for the Customer the authority to continue the use and possession of the infringing Equipment for Supply.
15.2 Prohibitions
The Customer shall not:
(a) use the Equipment for Supply in combination by any means and in any form with other goods not specifically approved by ISPNET;
(b) use the Equipment for Supply in a manner or for a purpose not reasonably contemplated or not authorised by ISPNET;
(c) modify or alter the Equipment for Supply without the prior written consent of ISPNET; or
(d) enter into any transaction relating to the Equipment for Supply without ISPNET’s prior consent in writing.
15.3 Defence
In the event that proceedings are brought or threatened by a third party against the Customer alleging that the Customer’s use of the Equipment for Supply constitutes an infringement of Intellectual Property Rights, ISPNET may at its option and at its own expense conduct the defence of such proceedings. The Customer shall provide all necessary co-operation, information and assistance to ISPNET in the conduct of the defence of such proceedings.
15.4 Indemnity
The Customer shall indemnify ISPNET against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party alleging such infringement if:
(a) the claim arises from an event specified in Clause 15.2 of this Schedule; or
(b) the ability of ISPNET to defend the claim has been prejudiced by the failure of the Customer to comply with any requirements of Clauses 15.1 or 15.3 of this Schedule.
16. SUB-CONTRACTS
16.1 Sub-Contracting Permitted
ISPNET may sub-contract for the performance of its obligations.
16.2 Use of Individuals
ISPNET may, without the consent of the Customer, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of Services to the Customer.
SCHEDULE B - TERMS RELATING TO BROADBAND AND SMS SERVICES
1. PROVISION OF BROADBAND AND SMS SERVICE
1.1 Provision of the Services
ISPNET shall provide the Customer with the Broadband and/or SMS Service by such means and using such Internet service provider as ISPNET determines from time to time.
1.2 Availability
ISPNET shall use reasonable endeavours to provide the Broadband and/or SMS Service on a continuous basis during the Term and any renewed Term or continuing period during which the Customer uses the Broadband and/or SMS Service with ISPNET’s consent. ISPNET will inform the Customer if the Broadband and/or SMS Service is unavailable for access by the Customer due to maintenance.
1.3 Log-in details
ISPNET shall provide the Customer with all identification and log-in information required for connection to the Broadband and/or SMS Service.
1.4 Data
ISPNET may, at its discretion, retain and assess any data or information concerning the Customer's use of the Broadband and/or SMS Service.
2. ACCESS TO THE BROADBAND AND SMS SERVICE
2.1 Equipment
Save as stated on the Application Form, the Customer agrees to provide for itself the modem, computer, hardware, software and all other equipment required to access the Broadband and/or SMS Service.
2.2 Assignment
The rights and obligations of the Customer shall not be assigned, sold, delegated, alienated, transferred or otherwise disposed of in any way by the Customer.
2.3 Disclosure
The Customer agrees not to disclose to any other person, corporation, entity or organisation any identification or log-in information, whether in use or not, nor any other confidential information relating to the Broadband and/or SMS Service or ISPNET.
2.4 Fees
The Customer is liable for all fees resulting from use of the Broadband and/or SMS Service accessed through the Customer's identification or log-in information, whether authorised by the Customer or not.
Disclosure or loss of identification or log-in information that results in the incurring of fees or misuse of the Broadband and/or SMS Service is the Customer's responsibility and any such occurrences should be immediately communicated to ISPNET in writing. A bill presented by ISPNET shall be deemed to be correct and prima facie evidence of all connection, access, usage and other fees contained therein.
2.5 Termination
ISPNET will erase the Customer's identification or log-in information within 7 days of the termination of this agreement or after a written request to do so from the Customer.
3. USE OF THE BROADBAND AND SMS SERVICE
3.1 Use
The Customer agrees to procure that all persons using the Broadband and/or SMS Service comply with all directions pertaining to the access and use of the Broadband and/or SMS Service granted to the Customer by ISPNET, including, but not limited to, the Acceptable Use Policy.
3.2 Software
The Customer warrants that in accessing and using the Broadband and/or SMS Service it will only use software that it is legally entitled to use and that such use will not be a breach of copyright.
3.3 Content
The Customer acknowledges that ISPNET does not and cannot in any way supervise, edit or control the content and form of any information or data accessed through the Broadband and/or SMS Service and ISPNET shall not be held responsible in any way for any content or information accessed via the Broadband and/or SMS Service.
3.4 Disclaimer
ISPNET disclaims all or any liability for any material on the Internet that the Customer finds offensive, upsetting, defamatory, personally offensive and in any way unsuitable for people under the age of eighteen (18).
3.5 Other Users
The Customer will not act on or through the Broadband and/or SMS Service so as to interfere with or disrupt any third parties, Broadband and/or SMS Service providers, their computers, software or hardware. Such actions include, but are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and viruses, using the Broadband and/or SMS Service to make an unauthorised access of any other computer accessible via the Broadband and/or SMS Service, sending harassing, obscene, indecent, offensive or threatening electronic mail, forgery (or attempted forgery) of electronic mail messages and the placement, transmission or storage of any defamatory material on the Internet.
3.6 Spam
The Customer agrees to comply with the requirements of the Spam Act 2003 (Cth) and to refrain from the bulk transmission of messages unless permitted by law. The Customer agrees to refrain from the bulk transmission of unsolicited electronic mail.
3.7 Illegal Use
The Customer will not access, nor permit any other party to access, the Broadband and/or SMS Service for any purpose or activity of an illegal, fraudulent or defamatory nature.
3.8 Intellectual Property
The Customer will not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from the Broadband and/or SMS Service that would be an infringement of any copyright, patent, trademark, design or other intellectual property right.
3.9 Back-Ups
The Customer will prepare and maintain sufficient back-up files and data storage capacity for the Customer's data including electronic messages.
3.10 Training
ISPNET has no responsibility to provide training in the use of the Broadband and/or SMS Service.
4. WITHDRAWAL OF ACCESS
4.1 Default
ISPNET reserves the right to immediately, and without notice to the Customer, withdraw the Customer's access to the Broadband and/or SMS Service if:
(a) the Customer fails to pay any fees or other moneys due to ISPNET including without limitation, any fees relevant to the connection, administration or usage of the Broadband and/or SMS Service by the Customer;
(b) the agreement between ISPNET and the Customer is terminated for any reason;
(c) the Customer misuses the Broadband and/or SMS Service or fails to comply with the Customer's obligations as to the use and access of the Broadband and/or SMS Service.
SCHEDULE C - Terms Relating To Mobile Telephone Services
The following terms apply to the supply of mobile telephone Service by ISPNET in addition to the Standard Terms: -
1. THE CUSTOMER
1.1 Transfer and porting
If you apply to become a Customer of ISPNET for mobile telephone Service by way of transfer from another supplier then you represent and warrant to ISPNET as follows:
(a) You have authority to transfer the telephone number stated in the Application Form;
(b) You have been shown or offered sight of a map or diagram indicating the coverage of the network for the mobile Service in the area of Australia in which you will generally use the Service;
(c) ISPNET is authorised to sign any necessary application to transfer the telephone number on your behalf;
(d) ISPNET is authorised to disclose such information about you to such other parties as is reasonable or necessary to complete the transfer to the new Carrier chosen by ISPNET from time to time and/or to check on your creditworthiness and/or for the integrated public number database;
(e) You have made enquiry of your previous supplier as to the consequences of terminating your service with them and will meet all costs payable to them;
(f) You do not require to take any steps to unlock the hand-set that you intend to use or that you will take any necessary steps when advised by ISPNET of the transfer of your service at your sole cost and expense;
(g) ISPNET may choose the Carrier for your Service and change such Carrier from time to time; and
(h) Your previous Carrier may impose a charge for transferring your Service and you will be solely responsible for meeting that charge.
1.2 Following Transfer
ISPNET will notify you within 10 working days of the transfer taking place but you can contact ISPNET by telephone on the telephone number shown on your Tariff Sheet if you wish to enquire as to the status of the transfer.
1.3 New Customers
If you are not transferring your Service from a previous supplier ISPNET will use its best endeavours to commence your Service as soon as practicable after accepting your Application Form. A fee may be charged for connecting a new sim card for the first time at the rate shown in the Tariff Sheet for your Service.
2. HANDSET
2.1 Ownership
It is your responsibility to provide yourself with one or more suitable handsets (acceptable to the Carrier providing your mobile telephone Service) to access the Services although ISPNET will be pleased to assist you with sourcing these upon request.
2.2 Care of Handsets
Mobile telephones are delicate devices and susceptible to damage or loss through theft, accident and water damage. You must take care of your handset at all times. ISPNET recommends that you insure the same against damage, loss or theft. If you wish to replace or up grade your sim card you will be charged for the costs shown on the Tariff Sheet for your Service
2.3 Blocking and un-blocking of handsets
If you advise ISPNET that your mobile telephone or sim card has been lost or stolen or that you are receiving nuisance telephone calls ISPNET will request the Carrier to block the same and if necessary transfer your Service to a new number and if necessary provide a new sim card. You will be charged for the costs associated with these actions shown on the Tariff Sheet for your Service. If a lost telephone is subsequently found ISPNET will request your Carrier to unblock the relevant number.
2.4 Handset faults
ISPNET shall not be responsible for any fault in your handset and you will not be entitled to any refund of Charges because you were not able to access the Services because of a fault in your handset.
3. NETWORK SERVICES
3.1 Carrier
ISPNET will advise you of the Carrier chosen for your Service from time to time if you request this. You will be entitled to access all of the facilities of the chosen network as though you were a direct customer of the Carrier.
3.2 Carrier’s Terms
ISPNET will advise you whether the Carrier providing your Service imposes standard terms of their own to which you will be subject and how you can gain access to such terms.
3.3 Network Faults
ISPNET’s obligation to you is to choose a reputable Carrier to provide the Services. ISPNET does not accept responsibility to you for any faults or breakdown in the network but will assist you so far as reasonably practicable in reporting faults and seeking to ensure restoration and continuity of Service.
3.4 Network Coverage
ISPNET will make available information regarding network coverage and performance targets published by the Carrier.
3.5 Network Services and Roaming
When you access network facilities, Charges may be incurred that are not described on your Tariff Sheet particularly when you use your mobile telephone abroad. ISPNET may request a security deposit from you before enabling your mobile telephone for international use. ISPNET will pass on to you all costs incurred by you with any Carriers either at the rate shown in the Tariff Sheet for your Service or if no rate is shown then at the rate charged by the Carrier providing the Service together with a mark-up to cater for ISPNET’s administrative costs and profit.
SCHEDULE D - Acceptable Use Policy
1. POLICY RELATING TO TELEPHONES
Business Services
When we supply you a Service that is a business service, you must use the service in accordance with the following reasonable use policy:
(a) On average, 95% of local calls made from your service last no more than an hour.
(b) We can collect information and investigate whether you are complying with the reasonable use policy. If we find that you aren’t, and you do not comply within 30 days of us telling you, we may change or suspend your Service.
(c) The reasonable use policy is not intended to release ISPNET from any obligation it has under any applicable legislation.
General Telephone Services
(a) It is important to us that our customers can access our services. Because of this, you must follow our Acceptable Use Policy when you use any of our special offers giving you calls or data usage for free or at rates lower than the standard rates for such calls or data usage as set out in these terms and conditions.
(b) The special offers include Options, Loyalty Programs and other business special offers and discounts.
(c) Our Acceptable Use Policy is intended to ensure that our customers do not use our Services in an excessive, unreasonable or fraudulent manner or in connection with equipment that has not been approved by us.
(d) Such usage may impact the reliable operation of our network and/or the quality or reliability of our services. Generally, legitimate use of our services for their intended retail purposes for which they are supplied to you will not breach our Acceptable Use Policy.
(e) We can rely on our Acceptable Use Policy where we reasonably consider that you have used our Services in a way that is excessive or unreasonable (as set out below) or in the situations set out below under “Commercial use”.
Commercial use
(a) The Services we make available are intended for retail customers to use for their own personal and business usage.
(b) Customers who use our services in their capacity as carriers or carriage service providers (or as suppliers of carriers or carriage service providers) must acquire services for such purposes under wholesale terms and conditions. The following clauses are intended to ensure that this occurs.
(c) You must not resell or commercially exploit any of our mobile services or sim cards.
(d) You must not re-route call traffic in order to disguise the originating party or for the purposes of resale.
(e) You may not use our mobile services in your capacity as a carrier or carriage service provider or as a party supplying services to a carrier or carriage service provider.
(f) You can only use a sim card that we provide you with handsets or other devices that have been approved by us for use on our networks.
(g) We can rely on our Acceptable Use Policy if we reasonably think that you have breached any of the previous clauses.
Excessive use
(a) You must not use any of our Services in a way that is excessive.
(b) We consider that using more than 2500 minutes each month on any mobile service is excessive use of our Services.
(c) In the case of SMS text messages, we consider that excessive use is more than 100 SMS text messages from a mobile phone each day
(d) In the case of MMS, we consider that excessive use is MMS sent to more than 50 people each day where each MMS is sent to a mobile phone or email address.
Unreasonable use
You must not use any of our Services in a way that is unreasonable. We consider it unreasonable where you use a Service fraudulently or in a manner that causes significant network congestion. Fraudulent use of a Service covers re-supplying our mobile service without our consent, so that someone else can take advantage of a Service.
What we can do
(a) If we reasonably believe that you are in breach of this Acceptable Use Policy, we can:
(i) cancel or limit your right to use a Service without telling you before we do so; and
(ii) suspend or cancel your mobile Services by telling you in writing 30 days before we do so.
(b) If we believe on reasonable grounds that you are in breach of this Acceptable Use Policy, you must pay us the standard applicable retail rate calculated from the date of the breach.
(c) If you have already paid us for such mobile services, you must pay us the difference between the standard applicable retail rate and the amount you have paid to us.
2. POLICY RELATING TO BROADBAND AND SMS
Prohibitions
You cannot use ISPNET Broadband and/or SMS Service:
(a) In a way which results in you or us breaching, or being involved in a breach of a law, order or regulation (including a foreign law, order or regulation), a mandatory code of conduct; or a voluntary code of conduct that you have agreed to comply with;
(b) In a way which results, or could result, in damage to property or injury to any person;
(c) To knowingly send e-mail that may destroy or damage an e-mail recipient’s computer;
(d) To knowingly accept email which is unlawful, and violates or infringes upon the rights of any person or corporation;
(e) To reveal confidential information about our wholesale partner and/or its suppliers which may result in unauthorised usage of the Broadband and/or SMS Services by a third party, except where you are required by law to disclose such information;
(f) To knowingly transmit information which contains viruses or other harmful components;
(g) To interfere, damage or destroy computer systems operations of the Broadband and/or SMS Services including disobeying any requirements, procedures, policies or regulations of our wholesale partner, other users and/or third parties;
(h) To knowingly store or transmit any unlawful, threatening defamatory, offensive or pornographic material that constitutes a criminal or civic offence under State and/or Commonwealth laws.
(i) To harass, menace or stalk people;
(j) Which enables a minor to access material inappropriate for a minor or to establish (or try to establish) contact with a minor not otherwise known to you;
(k) Which unlawfully incites discrimination, hate or violence towards one person or group, for example because of their race, religion, gender or nationality;
(l) To send, display or be otherwise involved in material which is obscene or defamatory;
(m) Which is, or which would be considered by a reasonable person to be, offensive or abusive;
(n) To engage in any misleading or deceptive business or marketing practice;
(o) That involves providing or promoting illegal pyramid selling schemes or unlawful gambling or gaming activities;
(p) Which infringes our or any other person’s rights (including Intellectual Property Rights and moral rights);
(q) Which constitutes a misuse of our or any other person’s confidential information or;
(r) Which results in a breach by you of any obligation that you owe to any person.
General Matters
(a) You are not authorised to access our computer systems or networks for any purpose other than to use the Broadband and/or SMS Service in accordance with this policy and your agreement with us for supply of the Broadband and/or SMS Service;
(b) You must not interfere with the proper operations of the Broadband and/or SMS Service or any other part of our network or system;
(c) You must not use the Broadband and/or SMS Service to contribute to, or participate in, a Newsgroup, forum or chat room in a way that has or may have an adverse effect on the proper operation of those newsgroups, forums and chat rooms.
Spam
You must not use the Broadband and/or SMS Service, attempt to use the Broadband and/or SMS Service or allow the Broadband and/or SMS Service to be used;
(a) To send, cause the sending of or otherwise be involved in the sending of SPAM or USENET SPAM; SPAM means unsolicited Bulk electronic messages of any kind (including email, fax, SMS and ICQ messages). Bulk means 20 electronic messages over a 10 minute consecutive period. USENET SPAM means excessive electronic newsgroup messages, excessive means posting the same or substantially the same message to one or more newsgroups resulting in a Breidbart Index of 20 or more. A Breidbart Index is calculated by multiplying the number of messages by the square root of the number of newsgroups that they are posted to over a consecutive 45 day period.
(b) In connection with any program (including a virus. Trojan horse, worm, cancelbot, time bomb), or activity (including a denial of service attack), that is designed to provide or allow any form of unauthorized control of, or result in an adverse effect on, a computer, a network or data (whether the computer, network or data is ISPNET’s or anyone else’s)
(c) To access or use our or anyone else’s systems, networks or data (including through open relay, port probing and the use of packet sniffers) without consent, regardless of whether or not such access or use has any adverse effect on the system, network or data;
(d) To create, send or alter in any way and by any means (including spoofing and use of third party mail servers), the contents of an electronic message for the purpose of hiding, obscuring or deleting the source of the message or making the message appear to come from someone other than you; or
(e) To manipulate or bypass our content usage limits by any means including connecting multiple modems to the Broadband and/or SMS Service.
Other obligations related to SPAM and USENET SPAM
(a) You must not benefit from SPAM or USENET SPAM (which includes causing or requesting any of your details to appear in SPAM or USENET SPAM and/or receiving responses to SPAM or USENET SPAM).
(b) You must not purchase, create, use, distribute, sell or otherwise be involved in software, Broadband and/or SMS Services or lists of sites, addresses, numbers or other identifiers of any kind (including email addresses and phone numbers) that are used to promote, send, or assist with the sending of SPAM or USENET SPAM.
Bulk Messages
If you send Bulk solicited electronic emails, then:
(a) You must include in each message, an email address, telephone number, facsimile number or mailing address that can be used to notify you that the recipient no longer wishes to receive such messages from you (“Opt Out Notice”); and
(b) If you are sent an Opt Out Notice, then you must immediately comply with the notice.
E-mail Limits
(a) We set limits on the size of emails sent to or by you, the period for which emails messages can be stored and the maximum disk space that will be allotted on ISP NETWORKS servers for your Broadband Service. These limits are set out in the Tariff Sheet for your Broadband Service (“Mail Quota”).
(b) We will delete any electronic mail message sent to you, by you or addressed to you if:
(i) The size of the mail message (including attachments) exceeds your mail quota;
(ii) The total of your undeleted messages (including attachments) exceeds your Mail Quota; or
(iii) You have not deleted the message within 180 days of it becoming available to you (whether read or unread). We recommend that you delete emails on a regular basis, as, once deleted, the message, the message will not be able to be retrieved.
(c) You will not send any electronic mail message that is sent using a (server/service) other than our SMTP server, unless we otherwise agree with you.
(d) We will delete any electronic mail message where the message has been stored in the Deleted, Spam, or Outbox folders 7 days after the message becomes available to you or was sent by you.
(e) If we delete any electronic mail messages under the terms of this agreement we are not required to notify you or the sender of the mail message.