Norfolk Island Data
Terms & Conditions
Part A – Introduction
1 About this document
(a) These are Norfolk Island Data Service’s Customer Terms.
(b) When we supply you with Telco Products, our Customer Terms apply by agreement between us or, failing agreement, under section 479 of the Telco Act.
(c) When we supply you with non-Telco Products, our Customer Terms apply as our standard terms of business.
2 About us
(a) Norfolk Island Data Service’s or ‘we’ means NIDS PTY LTD trading as Norfolk Island Data Services ABN 53 843 802 983.
(b) Our website is at .com
(c) Our postal address is at PO Box 909, Norfolk Island NSW 2899.
(d) Our customer service number is +672 3 22427.
Part B – Customer Contracts
3 Your Customer Contract
We supply Service under a Customer Contract or Contract that includes:
(a) this Part B,
(b) the General Terms in Part C, and
(c) any Service Schedule for the Service.
Service Schedules for our main Services are attached.
(a) Many Services are available under different Plans, each with its own features, entitlements, contract period, Charges and special conditions.
(b) Your Contract also includes the terms of any Plan you select.
5 Peak & Off-peak
(a) A Plan may specify certain days and/or times as Peak or Off-peak.
(b) Different Charges, entitlements or terms may apply in Peak and Off-peak periods. The Plan will indicate how that works in each case.
6 Periodic Entitlements
(a) A Plan may include the right to use a certain amount of a Service during a certain period.
We call these Periodic Entitlements.
(b) Unused Periodic Entitlements do not carry forward and are not redeemable for cash or other credit.
(c) If you exceed your Periodic Entitlement, extra Charges may apply or a Service may be limited in some way. Your Plan will give details. See Clause 17.12 for more information specific to nbn services.
7 Prepaid Plans
For a Prepaid Plan:
(a) Prepayments are not redeemable for cash or other credit.
(b) The Plan may specify a Use-by Date i.e. a period after which any prepaid entitlements that are not used expire without refund. Unless a Plan specifies otherwise, a Use-By Date of one year applies to all Prepaid Plans.
(c) Prepayments are not transferable between Plans – if you change Plans, there is no credit for unused prepaid entitlements (unless the Plan states otherwise).
(d) We may specify minimum and/or maximum prepayments that you may make.
(e) When your prepaid entitlements are used up we may cease providing Service. We are not responsible for the consequences of Service ceasing.
8 Non-Prepaid Plans
For a Plan that is not a Prepaid Plan, you may use the Service without paying in advance in full, but:
(a) We may require partial prepayment for a period of Service.
(b) We may require a partial prepayment before or after your Service Start Date.
(c) We may require you to maintain a minimum prepaid balance for a Service.
(d) We may vary the amount of a required prepayment or minimum prepaid balance from time to time.
(e) We may apply your prepaid balance to your next Bill or any later Bill/s.
9 Acceptable and Fair Use Policies
(a) We may publish an Acceptable Use Policy and/or a Fair Use Policy for a Service or Plan.
(b) An Acceptable Use Policy or Fair Use Policy will be directed against abusive, antisocial, illegal and/or grossly unreasonable use of a Service and/or our resources.
(c) You must comply with an applicable Acceptable Use Policy or Fair Use Policy.
For additional information regarding our Acceptable Use Policies, please visit our website (see clause 2) or alternatively to obtain a copy of the applicable policy – write to our Customer Information and Compliance Officer at our postal address (see clause 2).
10 Legal Compliance Policies
(a) We may publish a policy directed to ensuring that the use of a Service complies with all Laws.
(b) You must comply with such a policy.
11 Interacting with our staff
(a) You must deal with our staff courteously.
(b) You must not be rude to our staff.
(c) You must not harass or mislead our staff.
(d) If you breach this clause in a serious way, or on more than one occasion:
(i) we may make a written request that you comply with it; and
(ii) if you breach it again, you are in material breach of your Contract.
12 Operational Directions
(a) Acting reasonably, we may give Operational Directions about a Service.
(b) Operational Directions will be directed to the safety, security or reliability of Facilities, compliance with Laws or dealing with an emergency. We will only give an Operational Direction as and when reasonably necessary.
(c) You must comply with an applicable Operational Direction.
13 Partner Requirements – General
(a) Telco services, including many of our Services, are commonly provided by means of Partner Facilities, provided by third party Partners.
(b) Partners often have their own Partner Requirements for the use of their Facilities and we may only be permitted to provide Service to you subject to such Partner Requirements.
(c) You must comply with applicable Partner Requirements we notify.
(d) Where a Partner Requirement states that a Partner has a certain right or power:
(i) the Partner itself may exercise that right or power; or
(ii) we may exercise the right or power on behalf of the Partner.
ACL Consumers and ACL Small Businesses: If a new or amended Partner Requirement is materially detrimental to you, you may have Walk Away Rights under clause 56.
14 Fixed terms
A Plan may specify a fixed or minimum term. If it does:
(a) A Contract for the Plan is a contract for at least that specified term. We or you can terminate it with effect from the end of the fixed or minimum term on at least 30 days notice to the other.
(b) If a Contract is not terminated under clause 14(a), it becomes a month-to-month Contract.
15 Month-to-month, casual or ‘no contract’ terms
If a Plan or Contract is described as 'month-to-month', 'casual', 'no contract' or similar:
(a) we may terminate it on at least 30 days’ notice; and
(b) you may terminate it on at least 30 days' notice, taking effect at the end of a Billing Period (eg if you give notice on 26 March, your Contract ends on 30 April next).
16 Bundled Equipment
(a) Under some of our Plans, you will be supplied with Equipment (e.g .SIP phone or modem) without paying its full purchase price on delivery (Bundled Equipment).
(b) Bundled Equipment may be:
(i) free – in which case we absorb its full cost;
(ii) amortised – in which case you pay $0 up-front and we recoup the cost from you as part of Charges over a minimum term; or
(iii) subsidised – in which case we absorb part of the cost and pass the balance on to you, either by cash or amortised payment.
(c) Clause 32(c) explains when ownership of Bundled Equipment passes to you.
17 Telecommunications Consumer Protections (TCP) Code
(a) The TCP Code applies to consumer and some business customers, called TCP Customers in our Customer Terms. Refer to the Dictionary for the detailed definition.
(b) A term or note in our Customer Terms headed ‘TCP Customers’ applies to you if you are a TCP Customer, but not otherwise.
18 Australian Consumer Law (ACL)
(a) Some provisions of the ACL apply to:
(i) individuals who enter Consumer Contracts (as defined in the ACL). We call those persons ACL Consumers in our Customer Terms. Refer to the Dictionary for the detailed definition; and
(ii) businesses that enter Small Business Contracts (as defined in the ACL). We call those persons ACL Small Businesses in our Customer Terms. Refer to the Dictionary for the detailed definition.
(b) A term or note in our Customer Terms headed ‘ACL Consumers’ applies to you if you are an ACL Consumer, but not otherwise.
(c) A term or note in our Customer Terms headed ‘ACL Small Businesses’ applies to you if you are an ACL Small Business, but not otherwise.
19 ACL Consumers, ACL Small Businesses and Unfair Contract Terms
(a) Our Customer Terms apply to a wide variety of customers and circumstances, and must reasonably protect our interests across that wide variety.
(b) If you are an ACL Consumer or an ACL Small Business, and a term of your Contract would (except for this clause) be unfair (within the meaning of section 24 of the ACL) we will not apply or rely on that term without also taking steps to appropriately mitigate any unfairness.
(c) Those steps will be tailored to the particular situation, but may include e.g. offering you Walk Away Rights and a reasonable period to exercise them.
20 Consumer Guarantees
(a) Under the Australian Consumer Law, consumers (as defined in the ACL) have the benefit of certain Consumer Guarantees:
(i) that cannot be excluded; and
(ii) where the consumer’s rights in case of breach cannot be limited by your Contract, or can only be limited to a certain extent.
(b) Your Contract never operates to exclude the Consumer Guarantees (where they apply) or to limit your remedies for breach of them (in a way not permitted by law).
21 Understanding and navigating our Customer Terms
(a) Expressions used in our Customer Terms are explained in the Dictionary in clause 44.
(b) Rules for interpreting other expressions in our Customer Terms are set out in clause 43.
(c) The Index is at the end.
Part C – General Terms
22 Application for Service
(a) You must comply with any application form or process we specify.
(b) All information you provide in connection with an application must be true, correct, complete and not misleading.
23 Processing an application
(a) We do not have to accept an application.
(b) Before we confirm that we can and will provide Service, if you take any step (e.g. terminating a service from another supplier) on the assumption we can or will do so, you do so at your own risk.
(c) In processing your application, we may make any relevant enquiries, including obtaining credit information in accordance with clause 67.
24 Relevant dates
(a) The date when you make an application is the Application Date.
(b) The date when we confirm that we can and will provide Service is the Contract Date.
(c) The date when we notify you that Service is available for use (or the date you first use the Service, if that is earlier) is the Service Start Date.
25 Providing Service
(a) We will commence Service as soon as reasonably practicable after the Contract Date, and we may commence billing you as soon as the service is provisioned.
(b) We may provide Service using Our Facilities and/or third party Partner Facilities, as we decide from time to time. Together, we call those Facilities our Network.
26 Use of Service by others
(a) Unless we appoint you in writing as a reseller or wholesale customer, you must not share, resell or resupply a Service for remuneration or reward.
(b) Anyone who makes use of a Service with your consent or from your premises or using your equipment or log-in credentials is counted as your End User.
(c) The acts and omissions of your End Users with respect to a Service are deemed to be your acts and omissions.
(d) You must ensure that your End Users do not do (or omit to do) anything that would breach your Customer Contract if done (or not done) by you.
27 Using a Service
(a) When using a Service, you must comply with:
(i) your Customer Contract (including any applicable Acceptable Use Policy or Fair Use Policy); and
(ii) any applicable Laws.
(b) You must not use a Service:
(i) in breach of any Law;
(ii) to breach anyone else's rights;
(iii) to infringe copyright;
(iv) to create, transmit or communicate communications which are defamatory, obscene, pornographic, discriminatory, offensive, in breach of confidence, illegal or which bring us or any of our Partners into disrepute;
(v) to host or transmit content which contains viruses or other harmful code or data designed to interrupt, damage, destroy or limit the functionality of any software, hardware or computer or communications equipment;
(vi) to send, allow to be sent, or assist in the sending of Spam, to use or distribute email harvesting software, or otherwise breach the Spam Act;
(vii) in a way that is misleading or deceptive, where that is contrary to Law;
(viii) in a way that results, or is likely to result, in damage to property or injury to any person; or
(ix) in any way that damages or interferes with our Services to our other customers, our Partners or any Facilities, or exposes us to liability.
28 Exploitative Use
(a) 'Exploitative Use' means:
(i) using an unlimited mobile telephone Service to generate mobile terminating access or SMS message terminating access payments (for example, by using SIM boxing);
(ii) using a Service to transit, refile or aggregate domestic or international traffic on Our Network,;
(iii) using a Service with devices that switch or reroute calls to or from Our Network without our consent;
(iv) using a Service in a manner similar to the kinds described in clauses 28(a)(i), (ii) or (iii); or
(v) any other use of a Service in a manner that cannot reasonably be considered to be within the range of uses for which the Service are ordinarily supplied –
provided that use of a Service is not Exploitative Use merely because it is high volume use.
(b) You must not engage in Exploitative Use.
29 Telephone numbers
(a) In connection with a Service, you may be allocated with telephone numbers.
(b) We must comply with the Numbering Plan which sets out rules for issuing, transferring and changing telephone numbers.
(c) You have no claim against us arising from anything we do in compliance with the Numbering Plan, including changing or withdrawing a previously allocated number.
(d) You must not:
(i) do anything that causes us to breach the Numbering Plan or which makes it more difficult for us to comply with it; or
(ii) relocate, reassign or transfer the number for any Service except in accordance with our published procedures, or otherwise as the Law permits.
(e) You do not own any number allocated to you, and (except where Law permits you to transfer your telephone service and its number to another service provider) you have no right to retain a particular number when your Contract ends.
30 IP addresses, email addresses and domain names
(a) In connection with a Service, you may be allocated IP addresses, email addresses, domain names or Internet identifiers.
(b) These Internet identifiers are licensed, controlled and administered not by us but by independent authorities. These authorities make, and may change, their own rules and regulations that bind us and you.
(c) We are not responsible for anything done, or required to be done, by these authorities.
(d) You do not own any Internet identifier allocated to you, and (except where rules of the relevant authority permit you to transfer an Internet identifier to another service provider) you have no right to retain them when your Contract ends.
(e) An IP address allocated to you:
(i) may be managed using Network Address Translation (NAT);
(ii) may not be ‘globally routable’ ie directly reachable by all other Internet users; and
(iii) may therefore not support applications or services that require inbound connections to be established (eg a Virtual Private Network).
This reflects common industry architecture and is not a defect in your Service.
(f) We may allocate you with a globally routable IP address, if you request it or applicable Service Terms provide for it, subject to:
(ii) Service Terms;
(iii) our current allocation policy at the time of request; and
(iv) payment of an additional Charge.
31 Dynamic IP addresses
(a) Unless your Internet Service specifies that we shall provide you with a static (ie non-changing) IP address, we may provide it using dynamic IP addresses (that change periodically).
(b) The periodic changing of dynamic IP addresses is normal network behaviour and not a fault.
(c) It may be difficult or impossible to operate an Internet server (eg a mail server or a web server) using an Internet Service with a dynamic IP address. If you intend to operate such a server you should use an Internet Service with a static IP address.
32 Supplied Equipment
(a) This clause applies if we supply Equipment to you.
(b) You assume risk in Equipment upon delivery.
(c) We or our Partners retain title to Equipment:
(i) for Equipment rented or loaned to you – at all times;
(ii) for Bundled Equipment – until completion of the minimum term; and
(iii) for any other Equipment – until full payment has been made –
each a Security Period.
(d) While we or our Partners retain title to Equipment, you hold it in a fiduciary capacity as bailee for us.
(e) We or our Partners retain all intellectual property rights in any software, manuals or user documentation supplied with Equipment.
(f) If you use in connection with a Service any Equipment we have not approved or provided:
(i) it must comply with all applicable Laws, and technical standards and requirements including those set by its supplier or the manufacturer;
(ii) you are responsible for ascertaining what those technical standards and requirements are, since we will not be familiar with the Equipment; and
(iii) we will not be liable to you for any losses or expenses you incur in relation to your use of the Equipment, except to any extent we cause or contribute to it by:
(A) our negligence, or
(B) our breach of the Consumer Guarantees.
33 Substituted Equipment
(a) On occasions, stock of advertised Equipment may become unexpectedly unavailable. In that event we may supply substitute Equipment that is substantially equivalent to the advertised Equipment.
(b) On occasions, advertised Equipment may not be technically suitable for your situation. In that event we may supply substitute or modified Equipment that is more suitable.
34 Delivery of Equipment
(a) We will try to deliver Equipment to you on the delivery date (Delivery Date) and at the address (Site) indicated on your Application during normal business hours in that area.
(b) Variations at your request to Delivery Date or Site:
(i) are at our discretion; and
(ii) may be subject to conditions, including extra Charges.
35 Installation and connection of Equipment
(a) This clause only applies if we expressly agree to install or connect Equipment.
(b) We will install the Equipment at the Site within a reasonable time after the Delivery Date to connect you to the Service during normal business hours in that area. You must provide us with safe access.
(c) You must prepare the Site for the installation (in accordance with any directions or specifications we issue) at your own expense, including providing:
(i) appropriate electricity supply;
(ii) appropriate electrical and mechanical fittings;
(iii) appropriate environmental conditions;
(iv) a secure location for the Equipment, including if applicable a suitable point for mounting an external satellite dish without obstructions;
(v) all necessary facilities for the location of the Equipment;
(vi) access to all necessary personnel including your technical personnel;
(vii) where relevant, permission for us and our representatives and agents to enter the Site and install the Equipment including making any minor physical modifications reasonably necessary for the purpose.
(d) You warrant to us that as at the date of installation and connection to the Service, you will have notified any relevant parties and obtained all relevant consents for us to enter onto the Site, install Equipment and connect you to the Service.
(e) You must indemnify us against any claim made against us, or loss incurred by us (including legal costs on a full indemnity basis) in connection with such entry and installation, except to any extent that we cause or contribute to it by:
(i) our negligence, or
(ii) our breach of the Consumer Guarantees.
(f) You must obtain and maintain, at your expense, any permits, licences, approvals, authorisations, including local council planning approval required for the installation and operation of the Equipment and connection to the Service.
(g) If installation must be rescheduled because you breach this clause, we may make a reasonable Charge for our additional costs.
36 Installation Charges
(a) We will charge you installation Charges as stated (or indicated by) in your Contract.
(b) We will try to inform you in advance of any installation fees that may be charged by our Partners.
(c) If we find that installation will be more costly because of factors beyond our reasonable control, we may decline to proceed with installation unless you agree to revised Charges.
37 Additional Equipment services
(a) You may ask us to supply additional services in relation to Equipment eg repairs.
(b) If we agree to provide additional services, we will charge on a time and materials basis at our standard rates at the time (which may include materials supplied by our Partners at rates they determine).
38 Lost, stolen and damaged Equipment
(a) You are responsible for any lost, stolen and damaged Equipment that is owned by us or our Partner and is in your possession, under your control or on your property, except if it is caused by us, our personnel or our Partner (including nbn).
(b) You must pay for the replacement or (if reasonable) repair of such Equipment, except if the loss, theft or damage is caused by us, our personnel or our Partner (including nbn).
39 Return of Equipment
On the termination of your Contract for any reason, you must return all our Equipment without delay and (unless termination occurred due to our fault) at your cost.
40 PPS Law
40.1 Application of clause
(a) This clause 40 applies to the extent that your Customer Contract provides for or contains a 'security interest' for the purposes of the PPS Law (or part of it).
(b) The security interest granted to us is a 'purchase money security interest' to the extent that it can be under section 14 of the PPS Law.
40.2 Registration and rights
(a) We may register our security interest. You must do anything (such as obtaining consents and signing documents) which we require for the purposes of:
(i) ensuring that our security interest is enforceable, perfected and otherwise effective under the PPS Law;
(ii) enabling us to gain first priority (or any other priority agreed to us in writing) for our security interest; and
(iii) enabling us to exercise rights in connection with the security interest.
(b) Our rights under your Customer Contract are in addition to and not in substitution for our rights under other law (including the PPS Law) and we may choose whether to exercise rights under our agreement and/or under such other law, as we see fit.
40.3 PPS Law exclusions and waivers
(a) The following provisions of the PPS Law do not apply and, for the purposes of section 115 of the PPS Law are ‘contracted out’ of your Customer Contract in
respect of goods that are not used predominantly for personal, domestic or household purposes:
(i) section 95 (notice of removal of accession to the extent it requires us to give a notice to you);
(ii) section 96 (retention of accession);
(iii) section 125 (obligations to dispose of or retain collateral);
(iv) section 130 (notice of disposal to the extent it requires us to give a notice to you);
(v) section 132(3)(d) (contents of statement of account after disposal);
(vi) section 132(4) (statement of account if no disposal);
(vii) section 135 (notice of retention);
(viii) section 142 (redemption of collateral); and
(ix) section 143 (reinstatement of security agreement).
(b) The following provisions of the PPS Law:
(i) section 123 (seizing collateral);
(ii) section 126 (apparent possession);
(iii) section 128 (secured party may dispose of collateral);
(iv) section 129 (disposal by purchase); and
(v) section 134(1) (retention of collateral) –
confer rights on us. You agree that in addition to those rights, we shall, if there is default by you, have the right to seize, purchase, take possession or apparent possession, retain, deal with or dispose of any Equipment during its Security Period, not only under those sections but also, as additional and independent rights, under your Customer Contract and you agree that we may do so in any manner we see fit including (in respect of dealing and disposal) by private or public sale, lease or licence.
(c) You waive your rights to receive a verification statement in relation to registration events in respect of commercial property under section 157 of the PPS Law.
We and you agree not to disclose information of the kind that can be requested under section 275(1) of the PPS Law. You must do everything necessary on your part to ensure that section 275(6)(a) of the PPS Law continues to apply. The agreement in this clause is made solely for the purpose of allowing to us the benefit of section 275(6)(a) and we shall not be liable to pay damages or any other compensation or be subject to injunction if we breach this clause.
40.5 No competing security interest
You must not create, purport to create or permit to be created any 'security interest' (as defined in PPS Law) in Equipment during its Security Period other than with our express written consent.
40.6 Sub-hiring Equipment during Security Period
(a) You must not lease, hire, bail or give possession of (sub-hire) the equipment to anyone else unless we (in our absolute discretion) first consent in writing. Any such sub-hire must be in writing in a form acceptable to us and must be expressed to be subject to our rights under our agreement with you.
(b) You must take all steps including registration under PPS Law as may be required to:
(i) ensure that any security interest arising under or in respect of the sub-hire is enforceable, perfected and otherwise effective under the PPS Law;
(ii) enable us to gain (subject always to our rights) first priority (or any other priority we agree to in writing) for the security interest; and
(iii) enable each of us to exercise our respective rights in connection with the security interest.
We may recover from you the cost of doing anything under this clause 39, including registration fees and the costs of notification.
41 TCP Customers and Authorised Representatives
(a) If you are a TCP Customer, you can appoint an Authorised Representative to act on your behalf if you require.
(b) To be effective, we require that any such appointment:
(i) is in writing;
(ii) is signed by you (unless you are incapable of signing, in which case we shall work out a feasible and mutually acceptable alternative with you);
(iii) is verified by you in person or by telephone, including reasonable evidence of your identity (unless you are incapable of communicating with us in person or by telephone, in which case we shall work out a feasible and mutually acceptable alternative with you); and
(iv) states any limitations on the authority of your Authorised Representative (eg time limit; limit on access to your account or personal information; limit on authority to incur expense on your behalf).
(c) If your appointment does not state any limitations, your Authorised Representative has the power to act on your behalf as if they are you.
(d) If your appointment states any limitations, your Authorised Representative has powers, including access to your information, in accordance with your appointment and those limitations.
42 TCP Customers and Advocates
(a) You can use an Advocate to communicate with us if you require.
(b) We presume that an Advocate is not authorised to establish or make changes to your account or Services, unless the Advocate is also your Authorised Representative under clause 41.
(c) A person acting as your Advocate has no power to act on your behalf and has no access to your information without you being present and agreeing to such action.
43 Rights and remedies for PDH goods and services
Important consumer information: Full details of the consumer rights and remedies referred to in clauses 43 and 44 can be obtained from the Australian Competition and Consumer Commission (ACCC) at or from a local consumer protection agency.
(a) If we supply you with goods or services of a kind ordinarily acquired for personal, domestic or household (PDH) use or consumption you have important rights under the Australian Consumer Law (ACL) including Consumer Guarantees and remedies.
Nothing in your Contract limits those rights and remedies in any way.
(b) If we supply you with PDH Goods or Services, and you are told they come with a ‘manufacturer’s warranty’ or ‘one year product assurance’ or similar, those rights are in addition to, and not instead of, your rights under the ACL.
44 Rights and remedies for non-PDH goods costing no more than $40,000
If we supply you with goods or services that are not of a kind ordinarily acquired for personal, domestic or household use or consumption and cost no more than $40,000 you have important rights under the ACL including Consumer Guarantees and remedies but:
(a) in relation to these goods, our liability for failure to comply with a Consumer Guarantee (other than certain guarantees about ownership and undisturbed use) is limited to:
(i) replacing the goods or supplying equivalent ones;
(ii) repairing the goods;
(iii) paying the cost of replacing the goods or of acquiring equivalent ones; or
(iv) paying the cost of having the goods repaired; and
(b) in relation to these services, our liability for failure to comply with a Consumer Guarantee is limited to:
(i) supplying the services again; or
(ii) paying the cost of having the services supplied again.
(c) If we supply you with non-PDH Goods or Services that cost no more than $40,000, and you are told they come with a ‘manufacturer’s warranty’ or ‘one year product assurance’ or similar, those rights are in addition to, and not instead of, your rights under the ACL.
45 Personal injury or death
To the extent that our negligence causes personal injury or death, we accept liability on normal principles of law.
46 Service Level Agreements
If a Service or a Plan includes a Service Level Agreement (SLA):
(a) we are liable for any remedy or rebate specified by the SLA; and
(b) subject to clauses 43 to 45, and to the express terms of the SLA, our liability for breach of the SLA is limited to such remedy or rebate.
47 Exclusion of implied terms
Important consumer information: Nothing in this clause 47 limits the consumer rights and remedies referred to in clauses 43 and 44.
Subject to clauses 43, 44, 45 and 46:
(a) Any representation, warranty, condition or undertaking (whether in favour of you or of us) that would be implied in your Contract by legislation, common law, equity, trade custom or usage or otherwise is excluded from your Contract to the fullest extent permitted by law.
(b) We do not warrant or represent the performance, accuracy, reliability or continued availability of the Services or Facilities or that the Services or Facilities will operate free from faults, errors or interruptions.
48 Limitation of liability – General
Important consumer information: Nothing in this clause 48 limits the consumer rights and remedies referred to in clauses 43 and 44.
Subject to clauses 43, 44, 45, 46 and 53, we are never liable to you for, and you release us from any Claim for, any Loss.
49 Liability – General
(a) You must pay us all Charges and other amounts due under your Contract.
(b) You must pay us the fair value of any Equipment that you fail to return to us when required.
(c) You must pay us fair compensation for any damage to Equipment you return to us. Fair wear and tear does not count as damage.
(d) You must indemnify us for any loss or damage we suffer as a result of or in connection with:
(i) your breach of your Contract;
(ii) your use of a Service or Equipment; or
(iii) a claim against us by an End User in relation to a Service we supply to you.
TCP Customers: We will not impose Credit Management Charges unless the Charges are a reimbursement of our costs and you are advised of their amount or method of calculation.
(e) You indemnify us for any loss or damage we suffer in connection with any claim made against us by a third party arising out of or in relation to your use of Services or Equipment.
(f) Your obligations under this clause survive termination of your Contract.
50 Liability – legal requests, etc
(a) This clause applies where we reasonably incur expense as a result of or in connection with:
(i) a police request for information or evidence in relation to you or your use of a Service; or
(ii) a Court or other competent authority’s direction for provision of information or evidence in relation to you or your use of a Service; or
(iii) a demand from a legal practitioner for information or evidence in relation to you or your use of a Service.
(b) You must reimburse our expenses on request.
51 Your liability to us – (alleged) illegal use, etc
(a) This clause applies where:
(i) your Service is actually or allegedly used in a way that breaches any law or infringes the rights of any third party; and
(ii) we suffer loss or reasonably incur expense as a result.
(b) You must make good our loss and reimburse our expenses on request.
52 Liability and our Partners
52.1 No Claims against a Partner
(a) except for this clause, you would have a Claim against a Partner arising out of or in connection with your Service or their role in its supply; and
(b) our Partner has required us to exclude the Claim and/or we are liable to indemnify it against the Claim –
(c) you must not make the Claim;
(d) you release our Partner from the Claim; and
(e) you indemnify us and our Partner against any Loss we suffer if you do make the Claim.
52.2 Partner indemnity
If we are liable to indemnify a Partner against any Claim or Loss arising out of or in connection with your Service or their role in its supply then, to the extent that we are not liable for the Claim or Loss on ordinary principles of law, you must indemnify us against our liability to the Partner.
52.3 No application where Unfair
(a) you are an ACL Consumer or an ACL Small Business; and
(b) clause 52.1 or 52.2 is determined by a court or tribunal to be Unfair –
it will not apply.
53 Limitation of liability – ACL Consumers and ACL Small Businesses
Important consumer information: Nothing in this clause 53 limits the consumer rights and remedies referred to in clauses 43 and 44.
(a) you are an ACL Consumer or an ACL Small Business; and
(b) clause 48 is determined by a court or tribunal to be Unfair –
then clause 48 will not apply but:
(c) neither of us is liable to the other for economic loss, business interruption, loss of revenue, profits, actual or potential business opportunities or contracts, anticipated savings, loss of profits, loss of data, indirect or consequential loss, an obligation to indemnify another person, or an obligation to contribute to the compensation of loss or damage suffered by another person; and
(d) except for liability under clauses 49(a), (b) or (c), 51 or 52 the liability of each of us to the other for any Loss is limited to $1,000 in aggregate in respect of the Term.
54 Maintenance and faults
From time to time, the Network requires maintenance that may interfere with your Service. We will provide you with notice of any scheduled maintenance where reasonably possible.
54.2 Reporting faults
(a) You may report faults in relation to a Service or the Network by contacting our help line during its operating hours.
(b) Before reporting a fault, you must take all reasonable steps to ensure that the fault is not caused by equipment which is not part of the Network.
(c) You must not report a fault directly to one of our Partners unless we ask you to do so.
(d) If you report a fault that turns out to be a ‘false alarm’, or not to relate to the Network, we may make a reasonable charge for our effort and expenses in responding to your report.
54.3 Repairing faults
(a) We will use reasonable efforts to repair faults in Our Facilities within a reasonable period.
(b) We will use reasonable efforts to have our Partners repair faults in Partner Facilities within a reasonable period.
(c) You are responsible for maintaining and repairing your own equipment (except where we supplied it and you have warranty rights in relation to a fault).
54.4 Cost of repairs
If you cause a fault or damage to the Network, we may charge you the reasonable cost of repairing it.
55 General power to vary your Contract
We may vary your Contract from time to time on notice to you but variations do not have retrospective effect.
ACL Consumers and ACL Small Businesses: Subject to clause 56.2, we shall give you reasonable notice, having regard to:
(a) the nature of the variation; and
(b) the means by which notice is to be provided; and
(c) the length of time remaining before the variation is to occur; and
(d) any other matter that is reasonably relevant –
and we may also give you Walk Away Rights as explained in clause 56.
56 ACL Consumers, ACL Small Businesses and Contract variations
This clause only applies to ACL Consumers and ACL Small Businesses.
56.1 Reminder about ACL Consumers and ACL Small Businesses
'ACL Consumers' means individuals who enter certain kinds of contracts. 'ACL Small Businesses' means certain businesses that enter certain kinds of contracts. Refer to the Dictionary for the detailed definitions.
56.2 Beneficial or minor negative impact
If a Contract variation will have a beneficial or only a minor negative impact on you:
(a) we will not give you notice, and
(b) we will not give you Walk Away Rights.
56.3 Variations arising from amendments by a Partner
(a) a Partner supplies a service (Resupply Service) to us; and
(b) we resupply the Resupply Service to you (either as a separate service or as part of another service); and
(c) the Partner exercises a legal right to vary its terms of supply of the Resupply Service –
(d) we may vary your Contract in accordance with the Partner's variation;
(e) we will give you notice of the variation; and
(f) we will give you Walk Away Rights if you also pay any costs (eg early termination fee or similar) that we will have to pay for cancelling the Resupply Service with the Partner.
56.4 Other variations
In any other case:
(a) We will give you notice of the variation.
(b) We will also offer you the right to terminate your Contract within 14 days of the date of the notice without incurring charges other than:
(i) usage or network access charges to the date your Contract ends; and
(ii) outstanding amounts for installation of Equipment; and
(iii) outstanding amounts for Equipment that is compatible with other suppliers’ services; and
(iv) where applicable, any amount under clause 56.3 –
(Walk Away Rights).
57 When variations take effect
Contract variations take effect:
(a) at the end of any applicable notice period; or
(b) if no notice period applies, immediately.
58 Customer transfers to us
58.1 Obligations to your current supplier
If you wish to transfer from another supplier to us, you must first check whether your contract with your current supplier imposes any restrictions or costs of doing so.
58.2 Where we manage the churn process
(a) In some cases, there is an industry process under which we initiate and manage the transfer of your Service from another supplier to us (Industry Churn Process).
(b) Where we notify you that an Industry Churn Process is in place, by making an application for Service, you instruct and authorise us to arrange with your current supplier to transfer the Service to us, and authorise us to act on your behalf with your current supplier to transfer the Services to us.
58.3 Where there is no Industry Churn Process
Unless we notify you that there is an Industry Churn Process in place, you are solely responsible for terminating your contract with and any services from your current supplier in accordance with your contract with it, which might continue to charge you until you have done so.
58.4 Charges payable to your current supplier
You must promptly pay your current supplier all amounts you owe it.
59 Transfers from us
(a) If you transfer a Service to another supplier, you must pay our Charges that accrue before completion of the transfer.
(b) If you transfer a Service to another supplier before the end of any minimum term or fixed term, Early Termination Fees apply – see clause 82.
60 Charges & payment (1): kinds of Charge
We have various kinds of Charge, including:
(a) installation Charges eg for installing Equipment;
(b) set up Charges eg a one-off Charge when you start on an Internet Service;
(c) periodic Charges eg a fixed monthly Charge;
(d) usage Charges eg a Charge per call made on a call Service;
(e) prepaid Charges eg a Charge for call credit on a telephone service;
(f) call connection Charges eg a Charge incurred when a telephone call connects;
(g) miscellaneous Charges eg a Charge for providing a second copy of a bill, and any Charge that an applicable code, regulation, determination or law specifically allows us to make;
(h) third party Charges eg an amount we must pay to a Partner to install a second service in your premises;
(i) equipment Charges eg the price of a modem we sell to you –
and other Charges stated as part of a Plan.
61 Charges & payment (2): Prices
(a) Subject to clause 63, our prices are as stated in your Plan.
(b) Our current prices at any time are referred to as our ‘Price List’.
62 Charges & payment (3): spot priced Services
(a) We may designate a Service as a spot priced Service.
(b) Spot priced Services will consist of resupplied or rebilled Services where our buy price or other third party charges can vary with little or no notice.
(c) International telephone calls and international roaming are spot priced Services.
63 Varying Charges
We may vary the Charges or add new Charges from time to time in accordance with clauses 55, 56 and 57.
64 Special Promotions
(a) We may offer Special Promotions to you, on particular terms.
(b) The particular terms of the Special Promotion will prevail to the extent of any inconsistency with other parts of your Contract.
65 Bundled Plans
(a) We may offer a group of Services as a package (bundle) for discounted total Charges (compared to the total Charges that would apply if you acquired the same Services not as a bundle).
(b) Each Service in a bundle is subject to a separate but dependent Contract.
(c) If you stop acquiring any Service in a bundle:
(i) You have ‘broken’ the bundle; and
(ii) We may bill you non-discounted Charges for the remaining Service/s.
66 Credit management (1): Guarantees and security
(a) We can make supply of Service conditional on you giving us, and maintaining, security and/or third party guarantees to our reasonable satisfaction.
TCP Customers: We will base the requirement for a security on the outcome of a credit assessment conducted in relation to you and the Service you acquire.
(b) If we become entitled to suspend or terminate Service, we may make the resumption of Service conditional on you giving us, and maintaining, security and/or third party guarantees to our reasonable satisfaction.
TCP Customers: We will base the requirement for a security on the outcome of a credit assessment conducted in relation to you and the Service you acquire.
(c) We may use a security payment to pay any billed Charge that is overdue, where you have not disputed the Charge.
TCP Customers: Before we access a security payment, we will advise you that it will be accessed within 5 working days and provide you an opportunity to pay within that period.
67 Credit management (2): Credit checks
67.1 Credit checks
(a) At our discretion, we may obtain a credit report about you to help us decide whether to accept your application for service and to help us collect overdue amounts.
(b) In the course of a credit check, we may disclose personal information about you to a credit reporting agency or other credit information provider. We may receive a credit report and other information about you, including personal information.
(c) A credit reporting agency may include the fact that we obtained a credit report about you in its credit information file on you.
67.2 Disclosure of information
We may disclose to a credit reporting agency:
(a) information in your application;
(b) details of your account;
(c) that you have applied for credit with us;
(d) that we are a current credit provider to you;
(e) payments that are more than 60 days overdue and are subject to collection processes;
(f) any cheque of yours for $100 or more which has been dishonoured more than once;
(g) any serious credit infringement you have committed;
(h) that payments are no longer overdue.
67.3 Other credit disclosures
We may disclose information about you and any debt you owe us to:
(a) a debt collection service we engage; and
(b) anyone who takes, or is considering taking, an assignment of any debt you owe us.
67.4 Your consents
(a) If you are an individual, you agree that we can conduct a credit check and verify your personal details, in accordance with this clause.
(b) If you are self-employed, you agree that we can:
(i) obtain and use any report or information from a credit reporting agency, which contains information about your commercial activities or commercial credit worthiness;
(ii) exchange with your other credit providers, any credit report or other report about your credit worthiness or history, or personal information contained in those reports –
in accordance with this clause.
67.5 Further acknowledgments
You acknowledge that credit and other information about you may be used to:
(a) assess your application;
(b) assist you to avoid defaulting on your credit obligations;
(c) notify other credit providers of a default by you; and
(d) assess your creditworthiness.
68 Credit management (3): Services you acquire for others
If you enter a Contract where you will not be the main actual user of the Service (eg you arrange an Internet Service for your children):
(a) You are responsible for all use of the Service and all Charges incurred under the Contract.
(b) If you give anyone else sufficient information about your Service (eg by giving them your user name, password or other credentials), they may be able to:
(i) uncap or unlimit any cap or other limits that apply to it;
(ii) change Plans;
(iii) disconnect Service; and
(iv) do anything else that you could do.
You should treat all information that allows control of your Service as secret.
(c) Internet and telephone Services can be used to buy goods and services from third parties. You may be liable for debts incurred to these third parties.
69 When we can bill
(a) Your ‘Billing Period’ is the period between bills. Our standard Billing Period is monthly, but we may vary it.
(b) We may bill a part-period eg to align your Billing Period with the first day of each month.
(c) Subject to clause 69(d), we may bill for Charges as follows: Type of Charge:
may be billed:
(i) set up Charge
(ii) periodic Charge
14 days before the start of the period it relates to
(iii) usage Charge
at the end of each Billing Period
(iv) prepaid Charge
when you buy or top up a prepaid Service
(v) call connection Charge
at the end of each Billing Period
(vi) miscellaneous Charge
at the end of each Billing Period
(vii) third party Charge
(viii) Equipment Charge
when or before we dispatch the Equipment