ADSL, SDSL & SHDSL Terms & Conditions

Analyst Programmers Pty. Ltd. Trading as ADSLdirect (hereinafter "ADSLdirect") carries on business as an Internet service provider and provider of related goods and services ("the ADSLdirect ADSL/SDSL/SHDSL Service"). The Customer wishes to utilise the ADSLdirect ADSL/SDSL/SHDSL Service and ADSLdirect wishes to provide the Service to the Customer on the terms and conditions outlined herein.

2. Customer's Obligations

The Customer must comply with these Terms and Conditions including the Acceptable Use Policy (together referred to as "the Terms") which is set out in Schedule 1 to these Terms. A failure to comply with the Terms may result in either the suspension of the ADSL/SDSL/SHDSL Service or termination of these Terms.

3. Period of Contract and Effective Date

Unless otherwise agreed upon, the period of contract for the provision of the ADSL/SDSL/SHDSL Service is 6 months or otherwise stated (hereinafter referred to as the "Minimum Period"). These Terms shall commence on the date ADSLdirect signs these Terms, unless the parties agree otherwise and continues until it is terminated in accordance with clause 11 of these Terms. If during the post-sales service technical qualification process (the process whereby ADSLdirect verifies that the Customer's premises is located in an area serviced by an ADSL enabled local exchange, and that the copper line serving the Customer's premises is of a requisite quality to enable the ADSL/SDSL/SHDSL Service to be delivered over it), ADSLdirect determines that it cannot provide the contemplated service to the customer, then the Agreement will be null and void.

4. Nature of the Service

Range
4.1 As part of the ADSL/SDSL/SHDSL Service, ADSLdirect agrees to provide the following to the Customer:

1. Internet access,
   
2. help desk support, and
   
3. other related Internet services as mutually agreed upon by the parties and, which are more fully described in Schedule 2 and 4.

Third parties
4.2 The ADSLdirect ADSL/SDSL/SHDSL Service only applies to ADSLdirect's telecommunication network and ADSLdirect does not guarantee the availability of other telecommunication carriers' networks. ADSLdirect is not responsible for the non-performance of a third party network provider or provisioning agent for any delay in the ADSL/SDSL/SHDSL Service including access to the Internet by the Customer.

4.3 ADSLdirect reserves the right to vary the technical configuration or the components of the ADSL/SDSL/SHDSL Service at any time without notice to the Customer, unless such a change impacts directly or negatively on the performance of the Customer's Internet connection. If ADSLdirect determines that the variation has a substantial negative effect on Customer's Internet connection, then ADSLdirect will inform the Customer of any such variation as soon as possible.

Customer's Equipment
4.4 The Customer acknowledges that in order to access the ADSL/SDSL/SHDSL Service, the Customer must possess a Network Device (the hardware device at which the Internet connection is terminated, for example a router, hub or computer) with an appropriate Ethernet port and the power required to run it. The Customer is solely responsible for this Network Device and its operation.

4.5 The Customer further acknowledges that if the Customer's Network Device does not meet the Minimum System Requirements, the Customer will not be able to successfully access, operate or use the ADSL/SDSL/SHDSL Service. In addition, the Customer will not be entitled to receive customer support relating to any issue other than the quality of the signal delivered to the Modem. (As used within these Terms, the term "Minimum System Requirements" means the minimum technical specifications applicable to the Customer's computer equipment required to enable the Customer to achieve maximum system functionality when connected to ADSLdirect's ADSL/SDSL/SHDSL Service).

4.6 The Customer is responsible for cabling and the provision of appropriate cables and wall sockets. The Customer also warrants that the PSTN telephone number nominated for connection to the ADSL/SDSL/SHDSL Service terminates on a standard telephone socket and is no more than 2 metres away from the Modem. However, should the Customer require ADSLdirect to provide additional cabling or wall sockets, the Customer will be charged in accordance with the fees tables set out within Schedule 2 and 4.

6. Payment

6.1 In return for the provision of the ADSL/SDSL/SHDSL Service, the Customer is required to pay to ADSLdirect the charges specified in Schedule 2 and 4 ("the Charges").

6.2 Except as expressly stated, prices quoted are GST exclusive. When ADSLdirect issues the Customer a tax invoice, the Charges will be calculated excluding GST. GST will be calculated on the total amount of taxable supplies during the billing period and shown as a separate entry. Under this clause the expression "GST" has the same meaning given to it under A New Tax System (Goods and Services Tax) Act 1999.

6.3 Except as provided for in clause 6.2, the monthly charge, installation charge and any other fee charged by ADSLdirect does not include any amount on account of any withholding tax, charge, rate, duty or impost imposed by any authority, any GST or income or capital gains tax ("Tax"). If any Tax is payable by ADSLdirect in relation to these Terms, ADSLdirect will increase the Charge on account of the Tax and the Customer must pay the increased Charge. ADSLdirect will adjust the Charge having regard to Part VB of the Trade Practices Act 1974 (Cth).

6.4 Unless otherwise specified, monthly rental fees are payable monthly in advance. Traffic charges by default are charged monthly in arrears. Traffic charges for the previous month will be incorporated into the same or additional invoice listing the advance month's rental charges.

6.5 All payments must be made within 14 days of the date of the invoice. The Customer can pay the Charges by credit card, direct debit to the Customer's bank account or such other method as agreed to by the parties.

6.6 If the Customer fails to pay invoices within time, ADSLdirect will issue a reminder notice. If the Customer fails to pay after a reminder notice has been issued, ADSLdirect will approach the Customer directly and seek explanation for the delay in payment. Unless extenuating circumstances are provided to ADSLdirect, failure to pay after such steps have been taken will entitle ADSLdirect to suspend the ADSL/SDSL/SHDSL Service until payment has been received. If payment is not received within 14 days of the suspension of the ADSL/SDSL/SHDSL Service, ADSLdirect may exercise its rights under clause 11.

7. Confidential and Personal Information

Personal Information

7.1 For the purpose of processing the Customer's original application to join the ADSL/SDSL/SHDSL Service and ongoing credit management of the Customer's account under these Terms, ADSLdirect may be required to disclose to a credit reporting agency:

1. personal identifying details, including the Customer's name, current and previous addresses, driver's licence number, date of birth and employer;
2. the fact that the Customer has applied for the ADSL/SDSL/SHDSL Service, and any credit limit on the Customer's account;
3. the amount of any payments which are overdue for at least 60 days, when steps have been taken by ADSLdirect to recover those overdue payments;
4. where an overdue payment has been previously reported, advice that the payment is no longer overdue;
5. cheques or credit card payments which have been dishonoured;
6. court judgments or bankruptcy orders made against the Customer;
7. that, in the opinion of ADSLdirect, the Customer has committed a serious credit infringement; and
8. when ADSLdirect ceases to provide the ADSL/SDSL/SHDSL Service to the Customer

7.2 The Customer authorises ADSLdirect to disclose the information described in clause 7.1 to a credit reporting agency and to seek from or give to any credit providers nominated by the Customer or named in a credit report; and, any other information on the Customer's creditworthiness, credit history or credit capacity that credit providers are allowed to give under the Privacy Act, 1973 (Cth).

7.3 The Customer authorises ADSLdirect to obtain and use personal credit information for the purpose of considering an application by the Customer for commercial credit to use the Service as a sole trader, where applicable. The Customer authorises ADSLdirect to obtain and use commercial information about Customer's commercial creditworthiness or commercial history (the Customer's existing credit record as a sole trader) when considering an application for consumer credit (for example, when the ADSL/SDSL/SHDSL Service will be used for domestic purposes).

7.4 ADSLdirect may refuse or cancel the ADSL/SDSL/SHDSL Service on the basis of its credit assessment of the Customer. The Customer has the right to see and to correct any credit information which ADSLdirect holds about the Customer.

7.5 The Customer authorises ADSLdirect to use this information for business planning and research purposes only.

7.6 ADSLdirect may, with Customer's prior written consent, make any disclosure of the Customer's service usage information, or which ADSLdirect is requested and required to make by law.

7.7 The Customer may not mention the ADSL/SDSL/SHDSL Service in any promotional material or press releases without prior consent of ADSLdirect.

8. Intellectual property

ADSLdirect retains all present and future intellectual property rights pertaining to the ADSL/SDSL/SHDSL Service including information, such as promotional material (web based and printed), technical documentation of the ADSLdirect network and hosting infrastructure or business plans prepared for the Customer in relation to the ADSL/SDSL/SHDSL Service.

9. Liability

9.1 ADSLdirect does not warrant that the ADSL/SDSL/SHDSL Service will be uninterrupted or error-free.

9.2 ADSLdirect excludes all implied conditions and warranties from these Terms, except those implied conditions and warranties (such as those implied by the Trade Practices Act) the exclusion of which would be illegal or render this clause void ("Non-Excludable Condition"). Except to the extent that the ADSL/SDSL/SHDSL Service is deemed to be a service ordinarily acquired for business or household use, ADSLdirect limits its liability for breach of any Non-Excludable Condition (except any warranty as to title) to re-supplying the goods or services which gave rise to the loss or damage or paying the cost of re-supply.

9.3 Subject to clauses 9.2, 9.4 and 9.5, and in the event that the Trade Practices Act 1974 (Commonwealth) or (analogous legislation) applies to this agreement and permits the limitation of liability for breach of warranty implied by statute into this agreement then ADSLdirect limits its liability for breach of these Terms and all loss, damage, costs and expenses suffered or incurred by the Customer in connection with the Service (whether arising in contract, tort (including negligence) or under statute) to re-supplying the goods or services which gave rise to the loss or damage or paying the cost of that re-supply.

9.4 ADSLdirect excludes all liability to the Customer (whether arising in contract, tort (including negligence) or under statute) for any indirect or consequential loss and damage the Customer may suffer or incur in connection with the Service, including, but not limited to, loss of revenue, profits or business opportunities.

9.5 Nothing under this clause 9 limits or seeks to limit any rights the Customer may have pursuant to the Customer Service Guarantee established under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 or the Trade Practices Act 1974 (Commonwealth). ADSLdirect undertakes to provide further information to the Customer regarding this legislation if so requested by the Customer.

9.6 The Customer indemnifies ADSLdirect for any costs, expenses, loss or liability directly or indirectly suffered or incurred by ADSLdirect arising from the Customer's breach of these Terms, including the Acceptable Use Policy, or the Customer's use or misuse of the ADSL/SDSL/SHDSL Service.

10. Handling of Customer Disputes

The Customer may complain about the ADSL/SDSL/SHDSL Service in writing or by calling one of ADSLdirect's customer service representatives. ADSLdirect will comply with its consumer complaints procedures (a copy of which will be supplied to the Customer on request in endeavouring to resolve the Customer's complaint. If ADSLdirect is not able to resolve the Customer's complaint to the Customer's satisfaction, the Customer may refer his/her/its complaint to the independent Telecommunications Industry Ombudsman.

11. Suspension and Termination

11.1 ADSLdirect may suspend or terminate the ADSL/SDSL/SHDSL Service if the Customer breaches these Terms including the Acceptable Use Policy (or ADSLdirect reasonably suspects the Customer has breached these Terms). ADSLdirect may terminate ADSL/SDSL/SHDSL Services immediately if the customer either becomes insolvent or has a receiver, manager, administrator or liquidator appointed or appears likely to do so. In each of these circumstances, ADSLdirect will give the Customer at least 5 days written notice of such suspension or termination.

11.2 Where the Customer's access to the ADSL/SDSL/SHDSL Service is suspended, ADSLdirect may, in its absolute discretion, re-connect the Customer to the ADSL/SDSL/SHDSL Service after such a suspension, if the Customer undertakes to comply with these Terms or the Acceptable Use Policy in the future. ADSLdirect may charge the Customer a re-connection fee in these circumstances, as set out in Schedule 2 and 4.

11.3 ADSLdirect may also suspend the ADSL/SDSL/SHDSL Service, at any time without notice, for any reason including but not limited to, technical reasons, network repairs, or to comply with any law or an order of an emergency service or government authority. When ADSLdirect anticipates, or has advance knowledge of, a suspension to the ADSL/SDSL/SHDSL Service ADSLdirect will attempt to notify the Customer of this suspension via e-mail or any other means.

11.4 The Customer may terminate the Service by giving ADSLdirect 30 days written notice. The Customer must pay for the ADSL/SDSL/SHDSL Service up until the end of the notice period. If the Customer has agreed to take the ADSL/SDSL/SHDSL Service for the Minimum Period and the Customer seeks to terminate early, a pro-rated cancellation fee will apply, calculated in accordance with the formula contained in Schedule 2 and 4 and the Customer may do so on the condition that the Customer pays the Charges for the duration of the Minimum Period. The Customer authorises ADSLdirect to debit these payments to the Customer's credit card or bank account on receipt of a termination notice from the Customer.

11.5 If the Service is terminated:
(a) the Customer must allow ADSLdirect to disconnect the Service (and ADSLdirect may charge the Customer a disconnection fee, set out in Schedule 2 and 4); and
(b) Pay any outstanding Charges, subject always to the provisions of clause 4.8 of these Terms.

11.6 ADSLdirect is under no obligation to return the Customer's premises to its original condition after the ADSL/SDSL/SHDSL Service is terminated (for example, by removing wall sockets ADSLdirect has installed).

12. Unavoidable delay

ADSLdirect is not liable for any failure to perform and delay in perform its obligations under these Terms if such failure or delay is due to anything beyond ADSLdirect's reasonable control. If that failure or delay exceeds twenty (20) days from the date confirmed by ADSLdirect after the post-sales service technical qualification process has been completed, a party may terminate these Terms with immediate effect by giving written notice to the other party.

13. Renewal

This Agreement shall automatically renew for an additional period equal to the minimum periods at the expiry of the initial period unless the Customer advises ADSLdirect in writing 60 days prior to the expiry of the initial period otherwise.

14. General

14.1 These Terms shall be binding on all successors, heirs and assigns of the parties.

14.2 References to clauses and schedules are references to clauses of and schedules to these Terms. References to any law include any consolidations, amendments, re-enactments or replacements of that Law. Words in the singular include the plural and vice-versa. Headings have been inserted for convenience and are not to be interpreted as part of these Terms.

14.3 ADSLdirect does not waive its rights under these Terms unless the waiver is in writing and signed by an authorised representative of ADSLdirect.

14.4 The indemnities provided under these Terms survive the termination or expiration of these Terms.

14.5 The Customer shall not give or transfer any rights or obligations under these Terms without ADSLdirect's prior written approval.

14.6 The Customer must not resell the ADSL/SDSL/SHDSL Service or permit any other person to do so unless authorised by ADSLdirect.

14.7 Any provision of these Terms which declared void, voidable or unenforceable, by a court of competent jurisdiction, may be severed from these Terms and the remainder of these Terms will continue unaffected.

14.8 ADSLdirect may amend these Terms (including the Acceptable Use Policy and the Charges in Schedule 2 and 4) by giving the Customer 14 days notice, by mail or email informing them that the new Terms will take effect within 21 days. ADSLdirect may communicate with the Customer by email in relation to the Service. If the Customer does not wish to be governed by the amended Terms, the Customer may terminate the Service and will only be liable for the amounts owing under the original signed contract.

14.9 ADSLdirect may pay a commission to a person who introduces the Customer to the ADSL/SDSL/SHDSL Service.

14.10 These Terms constitute the entire Agreement of the parties about its subject matter, and any previous Agreements, understandings or negotiations regarding the subject matter, either oral or in writing do not have any effect.

14.11 These Terms shall be construed and governed by the laws of the State of New South Wales and the parties hereby agree to submit themselves to the non-exclusive jurisdiction of the courts of that State.

15. Service Level Agreement

15.1 ADSLdirect is committed to providing a reliable, high quality network. To back up our commitment, we offer to you Service Levels and Credits.

15.2 The Service Levels are measured on a calendar monthly basis. The Service Levels apply throughout the Service Term.

15.3 ADSLdirect will ensure that the ADSLdirect ADSL/SDSL/SHDSL Service is available 99% of the time during normal business hours (Monday to Friday, 8am - 5pm) (excluding Scheduled Service Interruptions and downtime caused by any system or hardware out of ADSLdirect's control) over a twelve-month period.

15.4 ADSLdirect has a 24 x 7 hotline for Business ADSL failure.

15.5 By customer request and at the customers expense ADSLdirect will provide an emergency dialup 56K, 64K ISDN, 128K ISDN backup option (please see 56K and ISDN pricing plans for further information)

15.6 If ADSLdirect fails to meet the annual availability target, businesses can claim a rebate of one month's access fees (maximum).

16. Indemnity

16.1 The client must keep ADSLdirect indemnified against all and any liability to any person for any loss or damage suffered or arising out of or in connection with this agreement, whether such damage arises directly or indirectly and consequentially and is claimed in contract, tort or under statute.
 

SCHEDULE 1 - ACCEPTABLE USE POLICY

1. The Customer must take all reasonable measures to prevent unauthorised access to the ADSLdirect network.
2. The Customer must comply with all applicable local, state, Commonwealth and international laws.
3. Minors must be supervised by a parent, teacher or other responsible adult at all times while using the Service as ADSLdirect is not responsible for Internet content that may be viewed using this service.
4. Disruption of the network is not allowed. As a user, the Customer may not use the Service to interfere with or disrupt other network users, services or equipment. Activities which the Customer is forbidden from engaging in include, but are not limited to:
1. the distribution of messages to inappropriate or unrelated forums, newsgroups or mailing lists (`spamming');
2. the sending of unsolicited bulk or commercial messages;
3. the sending of messages to individuals who have indicated that they do not wish to receive messages,
4. the propagation of chain letters,
5. the collection of responses from unsolicited email sent from accounts on other Internet hosts or email services which violate this Acceptable Use Policy,
6. the forging, alteration or removal of electronic mail or newsgroup headers,
7. the sending of numerous copies of the same or substantially similar message, large messages or files, to a recipient with the intent of disrupting a server, account, or service ('mail bombing'),
8. the posting of a large number of messages or amounts of text in newsgroups or chat-rooms with the intent to disrupt discussion or the service of other users ('flooding'),
9. the propagation of computer worms, viruses and other types of malicious programs,
10. transmissions of any type or quantity which adversely affect ADSLdirect's operation or jeopardise the use of ADSLdirect's service, or its performance for other subscribers;
11. harassment or impersonation of ADSLdirect or other users.
5. The Customer must not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information, data, text, graphic, audio or other like material accessed through or received from the Service or otherwise that may infringe the intellectual property rights of any person.
6. The Customer must not download, upload or distribute public domain materials (eg. Images, text and/or programs) which are copyrighted, without the permission of the copyright holder.
7. The Customer must not illegally use any process, program or tool via the Service for breaking or accessing the passwords of Customers on ADSLdirect or any other Internet Service Provider's systems.
8. ADSLdirect expressly forbids the Service to be used to host pornographic, racist, or homophobic material. If a Customer is found to be knowingly hosting such material, ADSLdirect reserves the right to terminate the Customer's service forthwith.
9. The Customer must follow all procedures specified by ADSLdirect in relation to the lodgement of hosted content.
10. The Customer must take all reasonable measures to prevent unauthorised access to the ADSLdirect hosting platform.
11. The Customer must ensure that the content hosted on ADSLdirect's servers as part of the Service, coupled with any programming or software code does not contain any defects, or other code that is intended or is likely to:
    1. cause the hosted content to cease being operational,
    2. cause any damage to or interfere with the content, or information stored on the ADSLdirect hosting platform, or
    3. result in unauthorised access to the ADSLdirect hosting platform.
12. The Customer must ensure that all content on its site relates to that Customer only and its business or the business carried out by its parent company, subsidiaries, or subsidiaries of the parent company.
13. Pursuant to the above, the Customer must ensure that the Service is not used to host content or assist the business of a third party client, unless ADSLdirect permission is expressly given to do so. Resale of ADSLdirect services is not allowed.
14. The Customer acknowledge that information available through ADSLdirect from the Internet may not be accurate, that some of the information available through ADSLdirect or the Internet may be intended for adult audiences and that Internet communications are not secure nor private and may be subject to interception or loss. ADSLdirect disclaims any liability for any material on the Internet that the Customer finds upsetting, defamatory or personally offensive.
15. The Customer acknowledges that the Internet is not an inherently secure system and undertakes responsibility for the protection of his/her/its data stored, or conveyed on the ADSLdirect network.
16. The Customer acknowledges that the Internet may contain viruses (including other destructive programs) that may, if not eliminated, destroy parts or all of the data contained within the Customer's system. The Customer further acknowledges that ADSLdirect has no control or authority over these viruses and is not liable for any damages that such viruses may cause.
17. To ensure that this policy is followed ADSLdirect may monitor the content of traffic over the Service but will respect the Customer's privacy. If ADSLdirect monitors the content of a Customer's traffic, ADSLdirect will safeguard the Customer's privacy unless to do so would involve ADSLdirect in concealment of a criminal offence or inhibit the enforcement of this policy. If ADSLdirect becomes concerned that the Customer's use of the Service may break the law or that the Customer has not complied with this policy ADSLdirect will attempt to contact the Customer before taking action. ADSLdirect may terminate the Customer's account and/or notify the authorities if ADSLdirect believes that the Customer's use of the Service may break the law or that the Customer has not complied with this policy.

Schedule 2 - SO/HO ADSL FEES AND CHARGES

Schedule 4 - BUSINESS ADSL, SDSL & SHDSL FEES AND CHARGES