TERMS AND CONDITIONS
These terms and conditions are a Standard Form of Agreement formulated for the purpose of Section 479 of the Telecommunications Act 1997.
telco.sydney ABN 62 002 899 023 will supply you or your business with telecommunications and data services (“Services‟) on the terms and conditions as follows:
1.0 Our Agreement with You
1.1 As a customer of telco.sydney these terms and conditions form the basis of our agreement.
1.2 Our agreement with you also includes any application form which you complete and provide to us. We may accept and rely on a facsimile or scanned email copy of the original application form as if it was an original.
1.3 Our agreement with you also includes our currently applicable price list. The price list may change from time to time, but we will notify you of any changes when they happen. Copies of the price lists are available from us on request.
2.0 Service Description
2.1 We will provide the telecommunications services as indicated in the Application including our online service to you in Australia or abroad through such Carrier or supplier network or networks as we nominate from time to time directly with the Carrier, supplier or network operator (the “Carrier‟ or “Supplier‟). Where carriage is supplied, the quality of the carriage of the Services will be the same as that of the carrier or supplier.
2.2 Where we are providing mobile services, we will connect your mobile phone to the network as soon as it is reasonably practicable after our acceptance of the application and its attachments (“Application‟) and we will use all reasonable efforts to maintain the connection while you comply with this Agreement.
2.3 Where we are providing mobile services, we will provide you with a telco.sydney SIM card or a SIM card from the carrier or supplier to use in relation to the Services. Notwithstanding clause 18, the SIM card remains the property of telco.sydney.
2.4 Where we are transferring mobile services under mobile number portability arrangements, the SIM card provided in relation to the services will be activated upon your request for activation. If no such activation request is received within 15 business days of dispatch, we will activate the SIM card on your behalf.
2.5 Where we are providing data or voice services, licences or right to use, access component of the relevant data service and CPE equipment is supplied to us by a third party(s) as a wholesale supplier.
2.6 You must not resupply or resell any of the Services without our expressed agreement in writing.
3.0 Use of Services
3.1 You are responsible for the use of the Services at Your premises and from the Service Delivery Point (means the point and/or location at the Customer Premises at which the Equipment and/or the Customer’s equipment and/or communications network connects to the Services), even unauthorised use. This means that if someone uses the Services without Your knowledge or consent, you are liable for all costs arising from that use.
3.2 You must not use the services and must use your reasonable endeavours to prevent any other person from using the Services:
3.2.1 To break any law or infringe any copyright or any person’s rights;
3.2.2 To transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted; or
3.2.3 in any way that damages or interferes with or interrupts the Services of the systems that telco.sydney uses to supply the Services.
Intentionally left blank
5.0 Fault Reporting
5.1 You may report a fault with the Services to telco.sydney at any time in accordance with clause 5.
5.2 Prior to reporting a fault, you must investigate and ascertain for yourself the cause of the fault and, if required by telco.sydney, provide any further information in relation to the fault, including what you have done to satisfy this clause.
5.3 Upon being notified of a fault, telco.sydney will assign a reference number to the fault and will issue that reference number to you. You must use and quote that reference number in relation to any dealings with telco.sydney in respect of that fault.
5.4 telco.sydney will use all reasonable endeavours to rectify the fault within the time frames set out in our agreed Service Level Agreement.
5.5 You acknowledge that if a fault has been caused by the services or network of any Other Supplier, telco.sydney shall not be liable to the Customer for any failure by that Other Provider.
Supplier (meaning a Carrier, a telecommunications carriage service provider or an equipment supplier other than telco.sydney) to remedy the fault within the time frames set out in any Service Level Agreement.
5.6 When telco.sydney has remedied the fault, we will notify you that the fault ticket is “closed”.
5.7 If telco.sydney determines that:
5.7.1 A fault arises out of or in connection with any equipment, facilities, networks or systems of yours; or
5.7.2 there is or was no fault, then telco.sydney may require you to pay telco.sydney‟ reasonable costs and expenses (based on telco.sydney‟ standard rates) in dealing with or resolving a fault, and such cost and expense shall be a debt due and payable by you on demand to telco.sydney.
6.0 Software Licence
6.1 telco.sydney warrants to you that it owns or has the right to grant sub licences of the software required to support the Services described in a Service Schedule.
6.2 telco.sydney grants to you, for use in your own business and on the Equipment, a non-exclusive, personal and non-transferable licence, without right to sub-licence, to use the software required to support the Services described in a Service Schedule.
6.3 Subject to this Agreement, the licence to use the software pursuant to clause 6.1 will continue for the Agreement Period.
6.4 You must:
6.4.1 Treat the software as Confidential Information under clause 39 of this Agreement;
6.4.2 Use the software or any portions or aspects thereof (including any methods or concepts utilized therein) solely on the Equipment;
6.4.3 Return to telco.sydney all memory media, documentation and/or other material that has been modified, updated or replaced;
6.4.4 Not modify, disassemble or decompile the software, or reverse engineer any part of the software or permit others to do so; and
6.4.5 Not reproduce or copy the software in whole or in part except for backup and archive purposes.
7.0 Charges & Payment
7.1 Charges for the services are determined in accordance with the Rate Plan or such other manner specified in the application. We may change the amount of these charges or add new charges from time to time in accordance with clause (13). You will be invoiced for all calls, services, usage or other charges on a monthly basis with 14 days trading terms for payment of accounts thereafter. You must pay all invoiced amounts by the date specified on the relevant invoice. Charges that do not appear on your monthly invoice may appear on future accounts due to processing procedures.
7.2 Where we are providing mobile services monthly, you must also pay us:
(a) Charges for calls you have made to the extent those charges exceed the Minimum Monthly Spend as set out in the Application; and
(b) Charges for value added services you have used.
7.3 Any charges billed to you after the cancellation date from your previous service provider will be due and payable by you to that provider.
7.4 Our charges to you may involve fees for connection, initiation or cancellation of any services.
7.5 In relation to Mobile Services, you accept that you are responsible for all calls made from your handset, including any calls made in error. Most mobile phone handsets have a keypad lock function to prevent accidental use. It is your responsibility to take adequate precautions to avoid accidental use.
7.6 Accounts overdue may incur interest on the overdue amounts at 3% above the per annum National Australia Bank Overdraft Reference rate applicable at the date of the bill calculated daily. An initial $15 (ex GST) late payment will be applied to your account.
7.7 We may, upon reasonable notice, deactivate or cancel all or part of your service if any amount is not paid by its due date. We reserve the right to restrict any Service at any time if we feel the account has gone over its credit limit or the service appears fraudulent. Discounts may also be revoked during the overdue period. Pricing may revert to the telco.sydney Standard rates. If any amount has not been paid by the due date we reserve the right to deduct any unpaid amount (or part thereof) from your credit card or charge card nominated on the application form. If you have nominated automatic direct debit, your bank account or credit card will be charged 14 days from the invoice date.
7.8 Delivery of archived invoices is charged at $15 (ex GST) per PDF copy.
7.9 Personal information
- If you default under this agreement, we may use or disclose any personal information collected and recorded in relation to you to assist us in the process of debt recovery.
- Personal information includes personal identifying details such as your name, address, date of birth, employers and driver’s license details and status of any of your accounts or related bodies corporate, your credit history, and information about your credit worthiness or capacity.
7.10 All payments made using either American Express or Diners Club credit cards will be subject to a 2.75% surcharge.
7.11 All payments made using a Visa, MasterCard or Bankcard will be subject to a 2.60% surcharge.
7.12 In consideration of us having agreed to supply the services to you, the person signing this agreement on your behalf ("the signatories") hereby jointly and severally guarantee the payment on demand of all monies which are or shall hereafter become due to us by you. This guarantee shall be a continuing guarantee and shall not be affected by us giving time or any other indulgence to you, nor shall any of our rights to sue or report your details to a credit reporting agency be affected.
7.13 If you do not pay the account by the due date we reserve the right to place the outstanding amount due in the hands of a Registered Collection Agency for debt recovery. At this time they will assume the responsibility for collection of the outstanding amount and such amount owing will be liable to a 20% surcharge or actual legal costs to cover recovery charges.
8.1 Unless expressly stated otherwise, the charges payable for the services under this agreement are exclusive of GST. You must pay to telco.sydney in addition to the charges, for the services, an amount equal to any GST payable on the supply of the services. That additional amount is payable at the same time any part of the charges for the services is payable. telco.sydney will issue a tax invoice to you for the supply of those services at or before that time.
9.0 Disputed Amounts
9.1 In the event that a bill is disputed by you, you agree to pay to us the entire total amount as indicated on the disputed bill without deduction or set-off and we agree to refund any monies found to be charged incorrectly after reasonable and proper investigation.
9.2 If a billing dispute is not raised within 30 days of the bill issue date, charges will be deemed correct and payable by the customer and any backdate/credit of these charges if required will not exceed a 30 day period.
10.0 telco.sydney’ Refund Policy
telco.sydney policy in relation to refunds is that there is no refunds after purchase is made.
11.0 Transfers to Us
11.1 In providing the services, we need to change your arrangements with your current supplier and we will do so in accordance with this clause.
11.2 By signing this Agreement or any other Agreement for the provision of telecommunication services by us:
- You authorise us to sign on your behalf and in your name, forms of authority to your current supplier of telecommunications services to transfer the services into our name.
- You will on request yourself give written instructions to your current supplier to transfer the services from your name to telco.sydney ‟s.
- You will immediately pay to your current supplier all amounts owing to it for the services being transferred up to the time of transfer to our name
11.3 You agree that for us to provide services to you through our online application at telco.sydney you or your nominee will constitute agreement by both Yourself and Your nominee to our terms and conditions. You and your nominee agree to use telco.sydney solely as provided by these terms and conditions. You should ensure that both you and your nominee have read and understood these terms and conditions.
12.0 Transfers from Us/Relocation
12.1 If in the future you ask us to transfer any of the services to another supplier, then you remain responsible to us for the amount payable for the services up to the time when we transfer those accounts to another supplier, and you will immediately pay us that amount on receipt of our invoice.
12.2 The provision of services ceases when we transfer those accounts to another supplier.
12.3 We will bill you for those services within the telco.sydney normal billing period.
12.4 If your services are under Agreement and you relocate your premises your Agreement will recommence for a minimum 24 month period from the date of the relocation being completed.
12.5 If after we become aware of any other proper charges (including fees payable to any other supplier) for those services up to the date of transfer, then you will immediately pay us all such amounts on receipt of our invoice.
12.6 If telco.sydney has programmed an override codes into your phone system or PABX, then calls may continue to be billed by telco.sydney. In this situation you are liable to telco.sydney for all related call costs and it is your sole responsibility to remove or change the override code at your cost to allow calls to go through to your new supplier.
13.0 Amendments to the Terms & Conditions
13.1 These Terms & Conditions, including charges for services and/or method of calculation may be varied, altered, replaced or revoked at any time by our giving a minimum of 30 days’ notice to you by email, mail or as an amendment detailed on the monthly invoice to you.
13.2 Without notice, we may at any time, change the carrier or supplier, or the carrier's or supplier’s products.
14.1 You consent to us and our carriers or suppliers exchanging your information and or details and the carrier or suppliers, we and our respective related bodies corporate may all use your details for our own purposes.
14.2 You authorise the carrier or suppliers to disclose to us all records, and in particular exchange line details, telephone accounts information, call charge records and call event records.
15.0 Credit Check
15.1 You will supply without delay all the necessary information to check the worthiness of your credit rating.
15.2 If we consider it relevant to assess this application, you agree to us obtaining from a credit-reporting agency a credit report containing personal information about you.
15.3 If your organisation is a Trust or member of a Trust you may be required to complete a Trust Compliance Form.
15.4 You agree that we may give to any credit provider and/or credit-reporting agency any information contained in the Application. You also agree that we may seek from any credit provider and/or credit-reporting agency any credit report on all parties named in the Application. You acknowledge and understand that such information can include any information regarding your commercial or consumer credit worthiness, credit history or credit capacity that credit providers and/or credit reporting agencies are allowed to give or receive under the Privacy Act.
15.5 You authorise and permit us to make independent enquiries of third parties concerning your financial standing and for this purpose, authorise and permit third parties to supply such information regardless of any confidentiality or privilege which applies to the information sought.
15.6 If the ownership of your business, our customer, changes involving change of directors or owners then telco.sydney reserves the right to request a new Application Form is signed and the new owners be subjected to a credit check. telco.sydney reserves the right to withhold services to the new owner if they fail to meet our credit terms.
16.0 Limitation of Liability
16.1 To the full extent permitted by law and subject to clause (14.2), we will not be liable in any circumstances, however arising, to you or any person claiming through you in contract, tort, or otherwise (including negligence) for:
16.1.1 Any economic loss or damage and in particular (without limitation), any loss of revenue, profits, actual or potential business opportunities, contracts or anticipated savings of profits; or
16.1.2 Any indirect or consequential loss; or
16.1.3 The acts of omissions of the carrier or any of our servants, officers, agents, contractors or subcontractors or the failure of, or fault or defect, in any contractors of subcontractors or the failure of, or fault or defect, in any telecommunications service, network, facilities, equipment or service, used by Us in supplying telecommunications services; or
16.1.4 Our failure to continue to provide the service to you for any reason whatsoever. You acknowledge that we do not guarantee continuous fault free provision of the service.
16.2 telco.sydney will not be liable for any consequential, direct or special loss resulting from the unavailability of any service due to any outage that is beyond our control.
16.3 telco.sydney strongly recommends redundant internet connections for mission critical applications and services. It is the customer’s responsibility to ensure such steps are taken to avoid any loss.
16.4 We accept liability to you in respect of any rights conferred on you by the Trade Practices Act 1974 and similar legislation where not to do so would be illegal, or would make any part of clause (11.0) void or unenforceable. Otherwise, we exclude all conditions and warranties implied into the agreement and limit our liability for any non-excludable conditions and warranties, where permitted by law to do so, at our option, to:
16.4.1 In the case of services:
(i) The supply of the services again or
(ii) The payment of the cost of having the services supplied again; and
16.4.2 In the case of goods:
(i) The replacement of the goods or the supply of equivalent goods;
(ii) The repair of the goods or
(iii) The payment of the cost of replacing the goods or acquiring equivalent goods.
16.5 You agree to indemnify and keep indemnified from and against liability and all loss and damages caused directly or indirectly by any breach of this agreement by you or any claim or action arising directly or indirectly out of any negligence or wilful act of yours or any of your servants, offices, agents, contractors or subcontractors.
16.6 To the extent permitted by law, you agree that your indemnity shall survive the termination of this agreement, against any actions, claims, expenses, demands, costs, damages, proceedings or any other liability whatsoever suffered by us in connection with you using the services or CPE including, without limitation, you using or incorporating the services or CPE in other products used by you or supplied to you.
17.1 Any equipment you use in relation to the services must comply with applicable standards and specifications, including those set by the carrier or supplier.
17.2 Risk in any equipment provided to you by us or by the carrier or any third party („Equipment‟) passes to you upon delivery.
17.3 Title to any equipment does not pass to you until all amounts owing have been paid in full to Us or the carrier under this Agreement and the cost of such equipment will be held by you in a fiduciary capacity as Bailee for us.
17.4 You irrevocably grant to us, our agents and servants, leave and license without the necessity of giving any notice, to enter at any time on and into premises occupied by you using reasonable force if necessary to inspect, search for and re-take possession of any equipment in respect to which payment is overdue.
17.5 On the termination of this Agreement for any reason, you will immediately return all of our equipment.
17.6 Where we are providing mobiles services, you must notify us immediately if there is any problem with the service or SIM card or if your mobile phone or SIM card is lost or stolen.
18.0 Installation & Programming of Equipment
18.1 Where we are providing fixed wire services, you will assist us in ensuring that any equipment necessary for you to receive the services and access our network is installed and programmed so that calls to destinations nominated by us from time to time are, as far as possible, carried by our preferred switched services network.
18.2 Where we are providing data and or DSL services, you will assist us in ensuring that any equipment necessary for you to receive the services and access our network is installed and maintained. telco.sydney supplies all modems pre-configured to work on the relevant telco.sydney DSL service. Any alterations of these settings will leave you liable for charges at $180 (ex GST) per hour for resetting or reconfiguring of the modem by telco.sydney.
19.0 Customer Premise Equipment, meaning PABX, Telephone, IP Handsets/Switch/Router or Key System, Software, Block-up converter, and other cable, mountings: CPE
19.1 Subject to the payment or contracted monthly service fee for the CPE, we will provide you with CPE as reasonably necessary for installation and which we provide to you to use with the relevant access (using data, PSTN or other telecommunication access medium) service(s), and any associated documentation to your premises specified in the relevant Application or Order Form. We may substitute any component of the CPE or part of any component of the CPE prior to delivery without consultation with you and may in any respect modify the CPE if, in the reasonable opinion of us, the substitution or modification:
(a) Will not adversely affect the performance or capacity of the CPE in any material respect
(b) Will not alter the configuration of the CPE in any material respect; and
(c) Will not otherwise materially affect the obligations of us or prejudice the rights of you under this agreement.
20.1 (a) We will use our best endeavours to deliver the CPE to you on the Delivery Date at the site during your normal business hours.
(b) If you wish the CPE to be delivered to a location other than the site, you shall make a request in writing to us not later than 14 days (or such other period as is agreed between us and you) prior to the Delivery Date. We may at our sole discretion determine whether to agree to such a request and what conditions, if any, shall apply in the event of us agreeing to such a request.
(c) If you request delivery of the CPE to be made in advance of the Delivery Date or postponed beyond the Delivery Date, we shall use reasonable endeavours to re-schedule delivery accordingly but shall otherwise be under no obligation to comply with your request.
(d) In the event that we accede to a request made by you pursuant to clauses (b) and (c) of Clause 31.1, we may make such additional charge as we reasonably considers to be appropriate to reflect the direct impact upon our resources in complying with such request.
(e) If we request permission to deliver the CPE prior to the Delivery Date, you shall use your best endeavours to prepare the site and to do all other things necessary to accept early delivery.
(a) We or an approved contractor shall install the equipment at the site on the Installation Date. In the absence of agreement to the contrary, the installation shall be effected during our normal business hours.
(b) You shall at your own expense prepare the site, and access to the site, prior to delivery. In doing so, you shall comply with any directions or specifications issued by us.
(c) Without limiting the foregoing, you shall ensure the supply at the site of:-
(i) Adequate electric current for the continuous use of the CPE;
(ii) Adequate electrical and mechanical fittings;
(iii) Appropriate environmental conditions; and
(iv) Provide all relevant facilities for the location of the CPE at your premises;
(vi) Provide us with access to all relevant personnel including your technical and other personnel;
(vii) If you do not own the Premises notify the relevant owner and/or lessor and obtain the owner ‟s and/or lessor ‟s permission for us and our representatives and agents to enter the Premises; and install the CPE, including making any minor physical modifications contemplated for the purposes of providing the telecommunication or data service(s). You warrant to us that at the date of installation you will have notified the relevant party and obtained all relevant consents and you indemnify us against any claim made against us, or loss incurred (including legal costs on a full indemnity basis), by another person in connection with such entry and installation.
(d) We shall, upon request from you, supply such information and assistance as we consider reasonable and necessary to enable you to prepare the site.
(e) Notwithstanding the foregoing, we shall, if requested by you and at your expense inspect the site prior to delivery for the purpose of providing an opinion as to whether the site is suitable for delivery and installation of the Equipment.
(f) Where we reasonably determine the requirements for installation exceeds reasonable expectations for any Installation Fee quoted or agreed with you, we will not be bound to provide the installation at the Installation Fee previously quoted or agreed and we agree to discuss and use our respective reasonable endeavours to agree a new Installation Fee; and subject to Our completing the assessment in clause (e) to our satisfaction; You are responsible for all other things not included within the installation.
(g) You agree to obtain and maintain, at your expense, any and all permits, licences, approvals, authorisations, including local council planning approval required for the installation and operation of the CPE;
(h) In the event that you are relocating your Premises and as a result, your CPE, we may, upon your request, allow you to move the CPE from the Premises to new premises during the Term so that you can continue using the service(s) at the New Premises, subject to:
(i) Our being able to provide the service(s) at the New Premises;
(ii) You agreeing that these Terms and Conditions apply to the provision of the service(s) at the New Premises; and, (iii) You pay all costs incurred by us as a result of you having the CPE moved.
22.0 Exclusions and Maintenance Services
(a) You acknowledge that the CPE does not include the goods and services specified as excluded or not included in the quotation;
(b) You may upon request to us, request that we supply additional services including without limitation, inspection, repairs, adjustment and replacement of unserviceable or defective parts not subject to the limited warranty given in respect of the CPE.
(c) If agreed to by us, additional services will be provided on a time and materials basis charged at our standard rates in effect from time to time and on terms agreed to between us and you; and
(d) Unless agreed in writing, any subsequent agreement to provide additional services between you and us will not modify or vary the Terms and Conditions of this agreement.
23.0 Title and Risk
(a) Title in the CPE will not pass to you until all monies owing by you to us have been paid in full.
(b) You shall return the CPE to us on demand at any time prior to payment of the monies owing to us in full and immediately following the making of a demand we shall be entitled to enter your premises for the purpose of retaking the CPE and may resell the equipment to another person.
(c) Notwithstanding Clause 17, risk of loss or damage to the CPE passes to you upon delivery of the CPE to the site.
(d) Title in all intellectual property rights including without limitation, copyright and trade marks in and to any manuals or user documentation supplied with the CPE shall at all times remain the property of us.
24.0 Limited Warranty
(a) We warrant that the CPE is new.
(b) We warrant that at the date of this agreement we believe the CPE to be free from defects in materials and workmanship.
(c) You may during the Warranty Period notify us in writing of any defect or suspected defect in the CPE. We shall, to the extent necessary, inspect, replace or repair the CPE at no additional charge and as soon as practicable after receiving written notice from you.
(d) We shall not be liable under clause 17 if the defect is the result of:-
(i) Improper use or mismanagement of the CPE by you;
(ii) Operation of the CPE other than in accordance with the instructions given by us;
(iii) Use of the CPE in a manner not reasonably contemplated by us;
(iv) Modification of the CPE not authorised by us;
(v) Use of the CPE in a manner contrary to law;
(vi) Subjecting the CPE to unusual or not recommended physical, environmental or electrical stress;
(vii) Reinstallation or moving of the CPE by a person other than us;
(viii) Use of the CPE by a person other than you;
(ix) Your failure to comply with any terms of this agreement; or
(x) Your failure or refusal to install engineering changes or enhancements recommended by us.
(e) If you provide a notice of a defect or suspected defect pursuant to clause 17 and any subsequent inspection of the CPE by us reveals no defect, the direct and indirect costs and expenses associated with such inspection shall be borne by you as an additional charge.
(f) You agree that the warranty in this clause 29.1 may, at our option, be varied or replaced by specific warranty conditions issued in respect of the CPE.
25.0 Term of the Agreement, Suspension, Cancellation, or part Cancellation of a Product, or Termination
25.1 In respect of each service set out in the application, this agreement will commence on the date of its signing by you and will continue in relation to that service until:
25.1.1 Expiry of the Agreed Term selected for the service on the application; and
25.1.2 For further consecutive periods of 12 months, unless terminated one month prior to the expiry of any such period, or it is otherwise terminated in accordance with this clause.
25.2 The period in which the Agreement is effective in accordance with clause (12) shall be the Agreed Term.
25.3 Any new Services requested to be added to your account will be contracted for a 36 month Term from the date such Services are activated by our provisioning team;
25.4 We may terminate this Agreement if you breach any term or condition of this Agreement or if a receiver or receiver and manager is appointed over any of your property or assets, or if a liquidator or provisional liquidator is appointed to you or if You enter into any arrangement with your creditors or you assign or otherwise deal with your rights under this agreement without our prior written consent or, in the case of an individual, you die.
25.5 We may suspend the services or any of them at any time without notice if any of following occur:
25.5.1 We are not satisfied with our credit assessment of you;
25.5.2 If you breach any of the Terms and Conditions of this agreement your services will be suspended. If you have failed to remedy the breach within 10 days of us providing written notice to you of the breach your service will be terminated;
25.5.3 You fail to pay amounts owing to us by the due date;
25.5.4 We are unable, for any reason including the default of a carrier, to provide the whole or part of the service;
25.5.5 You become subject to any form of insolvency administration.
25.6 If you request reactivation of services that have been suspended due to lack of payment we reserve the right to request a bond up to $1,000.00 which is to be applied to the first account issued following reactivation and payable by the due date of that invoice. This will be held until the conclusion of the Agreement period or 12 months, whichever is the greater.
25.7 If you churn your services to another carrier all bond monies will be refunded by cheque within 14 days of the account being finalised.
25.8 If we suspend the services, you will still remain liable for all monies due to us under the agreement, during the period of such suspension.
25.9 If your service has been suspended by us due to non-compliance with the Terms and Conditions of the Agreement a fee of $75 (ex GST) is payable to reactivate each service.
25.10 If this agreement is cancelled by you, or terminated by us:
25.10.1 Any right which we have in respect of your obligations under the Agreement that are not fulfilled when the Agreement is ended, will continue to exist;
25.10.2 You must pay us all reasonable costs and expenses incurred by us in relation to the Agreement ending;
25.10.3 Where we are providing mobile services:
(i) All of your rights to receive the services from us will end and you must return to us the SIM card that we provided to you;
(ii) You must pay amounts due at the time the agreement ends, including the balance of the Minimum Monthly Spend amounts for all months up to the end of the Agreed Term.
(iii) If we are supplying a SIM only service and you terminate the service before the agreement ends an early termination fee of $500.00 per service is payable to us
25.10.4 Where we are providing data, IP Telephony and or DSL services, you must pay amounts due at the time the agreement ends, including the balance of the Monthly Service Fees as set out on the application, for all months up to the end of the Agreed Term.
25.10.5 In addition to any liabilities arising under this clause and where we are providing fixed wire services, if you terminate the services before the expiry of the Agreed Term or such lesser time as is agreed in writing by you and us, then you will pay us an early termination fee based on a genuine estimate of the loss (Early Termination Fee) we will incur from the early termination of this agreement. The amount of the Early Termination Fee will be the amount of services and equipment charges billed per month for all the months up to the end of the agreed term.
25.11 Where you have entered into an agreement to purchase 2 or more of the following products from us: Mobile GSM, Fixed Wire (Inbound, Long Distance and Local), Video and Voice Conferencing or ADSL, and during the term of your agreement you cancel the supply of one of the aforementioned products, the pricing of the remaining product(s) or service(s) will revert to the non-bundled (or non-discounted), and thus adjusted rate for the service that we continue to supply to you for the remainder of the agreement.
25.12 Where we are providing Data services, if this agreement is terminated in accordance with this clause.
carrier may arrange for you to be supplied by the carrier with the carrier's services that had been supplied by us, but you acknowledge that the carrier may not be able to make those arrangements immediately and once the carrier makes those arrangements, those services acquired by you will be acquired on the then current carrier's tariff and terms and conditions and the carrier will bill you accordingly.
26.0 Removable Discount
26.1 If we provide a service at a discount on payment over a set term and you cancel the service or terminate the agreement before that term ends, then you will be liable to pay the for service billed at telco.sydney Standard Rates for the period prior to cancellation and termination. We will bill you for the amount of the discount allowed to you during the elapsed period on your telco.sydney bill.
27.0 Communications & Content
27.1 You are responsible for the content of the messages you communicate when using our services as well as the consequences of those messages. You agree that you will not use our services to engage in activities that are illegal, obscene, threatening, defamatory, invade privacy, infringe intellectual property rights, or otherwise injure third parties or are objectionable. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead others or us as to your identity. We reserve the right to suspend or terminate the service in the event of a breach of this clause and in such cases you will be responsible for any costs associated with suspension or termination of the service.
27.2 We believe that any correspondence or emails from telco.sydney or its related parties are a valuable part of our service as they enable you to keep up-to-date with matters regarding Internet security, viruses, useful tools, promotions, sites of interest and other related matters. The correspondence and emails do not constitute Spam as we have a continuing business relationship with you. However, if you do not want to receive such commercial communication from us please contact us to unsubscribe, otherwise we will continue sending you relevant information until you request us to remove your email address (this does not affect other electronic communications specifically regarding the provision of the service of your account).
28.0 Use of Mobile Phone Overseas (Roaming)
28.1 Where we are providing mobile services, if you use a roaming service overseas in connection with your mobile phone, you agree to pay all call charges in connection with the provision and use of the roaming services, including local taxes and surcharges. We may require you to pay a $500 security deposit prior to making roaming facilities available.
28.2 Where we are providing mobile services, if you fail to comply with the Terms and Conditions outlined herein, telco.sydney may use the security deposit or any part thereof, to meet any costs, loss or liability incurred as a result. Where appropriate, providing you have met the provisions of the Terms and Conditions of this agreement, we will return the outstanding balance of the security deposit, without interest to you.
28.3 Where we are providing mobile services, you understand that while roaming an overseas network it may not provide some of the services. There may be limitations to the overseas networks, which may have not been advised to you or us.
28.4 Roaming charges are governed by the carrier you use at the time. We advise the Roaming rates will alter without notice and Roaming rates for the country you’re going to should be checked on telco.sydney prior to your departure.
29.0 Conditions of an Optus Network Mobile Service
29.1 Rate Plan:
29.1.1 If arrangements between M2 Wholesale Pty Ltd (“M2”) (means the wholesaler of Optus Mobile Services) and telco.sydney are terminated, M2 may arrange to supply you directly. You acknowledge that the rate plan applicable to the provision of Mobile Service to you may be altered to the nearest applicable Supplier rate plan in the event the rights and obligations of telco.sydney under your Agreement are assigned or novated to M2 so that M2 provides the Mobile Services directly to you.
29.1.2 You may not resell or resupply the Mobile Services provided by telco.sydney.
29.1.3 telco.sydney shall have the right to assignor novate all or part of its rights and obligations under your Agreement to M2 without your consent. You cannot assign or novate all or part of your rights and obligations under your Agreement other than in accordance with this clause 29.
29.1.4 For the purposes of novation, you agree to novate your Agreement to M2 on receipt of a notice from either telco.sydney or M2, such novation to be on terms no less favorable that the terms of the Agreement in existence immediately prior to novation.
29.1.5 You consent to allow telco.sydney to disclose to M2 or Optus (or its Related Bodies Corporate) your details including information relating to the affairs or personal particulars (including any listed or unlisted telephone number, address or account history) or carriage services supplied to you.
29.1.6 You consent to allow M2 or Optus (or its Related Bodies Corporate) to use that information in order to facilitate the supply of carriage services to you by telco.sydney M2 or by Optus. Without the express permission of telco.sydney, M2 or Optus (or its Related Bodies Corporate) may not directly contact you with offers and information via electronic messaging (such as SMS) for marketing purposes.
29.2 To the full extent permitted by law telco.sydney, M2 or Optus (or its Related Bodies Corporate) will not be liable in any circumstances, however arising, to you or any person claiming through you in contract, tort, or otherwise (including negligence) relating to your mobile service for:
29.2.1 Any economic loss or damage and in particular (without limitation), any loss of revenue, profits, actual or potential business opportunities, contracts or anticipated savings of profits; or
29.2.2 Any indirect or consequential loss; or
29.2.3 The acts of omissions of the carrier or any of our servants, officers, agents, contractors or subcontractors or the failure of, or fault or defect, in any contractors of subcontractors or the failure of, or fault or defect, in any telecommunications service, network, facilities, equipment or service, used by Us in supplying telecommunications services; or
29.2.4 telco.sydney “s failure to continue to provide the service to you for any reason whatsoever. You acknowledge that we do not guarantee continuous fault free provision of the service.
29.2.5 telco.sydney, M2 or Optus will not be liable for any consequential, direct or special loss resulting from the unavailability of any service due to any outage that is beyond its control.
29.3 You agree that you are not a Carrier or Carriage Service provider as defined in the telecommunications ACT of 1997.
29.3.1 Should you become a Carrier of Carriage Service Provider then telco.sydney, M2 or Optus may cancel your service under notice.
30.0 Conditions of Voice & Video Conferencing Service
30.1 You are responsible for maintaining the confidentiality of your owner number and any personal identification numbers and passwords („Account‟) and for restricting access to your account.
30.2 You agree to accept responsibility and liability for all activities that occur under your account whether lawful or unlawful. You are also solely responsible for all uses of your account, whether or not actually or expressly authorised by you.
30.3 We do not sell products or services to children. If you are under 18, you may use our services only under the supervision of a parent or guardian.
30.4 We reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders at our sole discretion.
31.0 Conditions of Data &/or DSL Service
31.1 If we do not supply a standard telephone service with the ADSL/SHDSL access component it may be necessary to Terms & Conditions of Supply. Terminate the service if you request another carrier to provide a standard telephone service after the date of this agreement;
31.2 We may, at our discretion, provide the service by using either: (a) An existing or new Unconditioned Local Loop Service („ULLS‟); or (b) An existing or new access line that supplies a standard telephone service; provided by Telstra Corporation Limited („Telstra‟) or a reseller of Telstra, depending on the technical & operational requirements of the particular Service.
31.3 Where a telephone exchange area is shown as being DSL enabled, there is no guarantee that individual telephone services provided from that exchange will qualify for DSL service provision.
31.4 The performance of the end-to-end service offered over DSL is determined by the quality of the copper line and the distance from the DSL exchange. As such the performance of the end-to-end service can only be estimated until we have qualified the line performance. We will accept a customer order upon appropriate qualification where the line performance meets our service objectives and the availability of the said service.
31.5 For the purpose of measurement of data usage 1000MB = 1GB.
32.0 Acceptable use of Internet, Data &/or DSL Service
In addition to the provisions in (27 .0) above, you agree to comply with the acceptable use standards which include but are not limited to the following:
32.1 Not to send e-mail that may destroy or damage an e-mail recipient's computer;
32.2 Not to knowingly accept email which is unlawful, and violates or infringes upon the rights of any person or corporation;
32.3 Not to reveal confidential information about us and or our suppliers which may result in unauthorised usage of the services by a third party;
32.4 Not to transmit information which contains viruses or other harmful components;
32.5 Not to interfere, damage or destroy computer systems operations of the Services including disobeying any of our requirements, procedures, policies or regulations, other users and or third parties; and
32.6 Not to store or transmit any unlawful, threatening, defamatory, offensive or pornographic material that constitutes a criminal or civic offence under State and Commonwealth Laws.
33.0 Network Security
33.1 You agree to accept responsibility and liability for the security of and or access to your networks and related systems. You will take reasonable and appropriate precautions to prevent any violations of your network and or related systems security.
33.2 We do not take responsibility or are liable in any way for any violations of your network and or related systems security, however caused.
33.3 While we are responsible for the provision of services, you are responsible for ensuring that adequate security in the form of virus protection or firewalls exist to protect your electronic data or the electronic data of your business against unauthorised or unwarranted intrusion.
34.0 Data and Satellite Transmission Requirements
Intentionally left blank.
35.0 Inaccessibility due to Interference
You agree that:
(a) Any service levels for the data service(s) do not apply where you are unable to access the data service(s) due to any interference with the CPE that prevents the CPE from:
(i) Which are a result of any changes to the surrounding environment subsequent to the installation of the CPE; and
(b) You must either:
(i) Take all steps reasonably necessary and within its control to ensure that the interference is removed; or (ii) Where it is not possible to remove the interference, you must engage us to relocate the CPE at your cost.
36.0 Mobile Number Porting
Switching (“Porting”) your mobile Service Number (“MSN”) from your current mobile service provider to (“telco.sydney”) is covered by the Australian Communications Industry Forum. Industry Code – Mobile Number Portability ACIF C570 June 2001 (“MNP Code”) and bilateral arrangements. Provided that your MSN is capable of being ported, you may Port your MSN from your current Mobile Service Provider to telco.sydney if that MSN is declared Portable under the ACA Numbering Plan 1997 and no exemption has been granted by the ACA. The terms of the relevant telco.sydney Service Application form (including all associated terms and conditions), as current, and as may be varied from time to time, will apply to your use of the Service.
36.1 You acknowledge and agree with the following:
(a) If your MSN is ported, only your MSN switches to telco.sydney. No existing value added services with your current Mobile Service Provider will be transferred, which may result in the loss of (or the loss of access to) these services from your current Mobile Service Provider, including voice mail, SMS, paging or facsimile services. However, such services may instead be provided by telco.sydney upon application and payment of any relevant fees.
(b) You may have outstanding contractual obligations and costs to your current Mobile Service Provider.
(c) You may have an ongoing contract with your current Mobile Service Provider which requires the payment of cancellation and or termination fees (including and early termination fees) to that mobile Service Provider if you switch to telco.sydney.
(d) Your current Mobile Service Provider may or may not disconnect your existing mobile service and value added services, and porting your MSN may result in finalisation of your existing account for that service.
(e) If you currently have a prepaid handset, you may need to get any SIM security or network locking removed by your current Mobile Service Provider and or have the handset reprogrammed prior to Porting, or get a new handset.
36.2 You can only withdraw your authority to Port to the Port Cutover Notification being received by telco.sydney from your current Mobile Service Provider.
36.3 telco.sydney does not warrant that it can switch your number from your current Mobile Service Provider. Your current Mobile Service Provider may reject the request to Port, if the information you provide is incorrect or does not match the data held by them. In this case, we reserve the right to correct the information and resubmit the request to switch or dispute the rejection by your current Mobile Service Provider. Additionally, in accordance with the MSN Code, a request to Port may be rejected if:
(a) The request is for a non-Portable MSN, eg. A cancelled MSN.
(b) The MSN Code requires the request to be rejected; or
(c) telco.sydney cannot otherwise provide Porting for that MSN in the circumstances.
36.4 If your MSN cannot be ported then you may accept a new donor number from telco.sydney on such terms and conditions as imposed by telco.sydney.
36.5 telco.sydney does not warrant that your MSN will be switched to telco.sydney within any specified timeframe. The Standard Hours of Operation under the MSN Code are AEST 8am to 8pm Monday to Friday and 10 am to 6pm on Saturday, excluding national public holidays. telco.sydney may be able to provide you with the facility to implement the Porting to your MSN(s) outside the Standard Hours under any Bilateral agreement that may exist from time to time.
36.6 Acting in accordance with the MNP Code and any other bilateral arrangements, in the event of a Port to telco.sydney, or Port Withdrawal or Port Reversal to your previous Mobile Service Provider, telco.sydney:
(a) Is not responsible for any period of outage of your Mobile
Service and or any related or ancillary services; and
(b) To the extent that any statutory warranties cannot be lawfully excluded, you agree that telco.sydney “s liability to you will be limited in contract, tort or otherwise direct or indirect, for or in relation to the Port, or Port Withdrawal.
Port Reversal, including any negligent act or omission by telco.sydney; and
(c) To the extent that any statutory warranties cannot be lawfully excluded, you agree that telco.sydney “s replacement of the goods‟ supply or equivalent goods; payment of the cost of having the goods repaired; supplying the services again; and the cost of supplying equivalent services.
36.7 If you wish to Port your MSN from telco.sydney to another Mobile Service Provider, then you must contact the other provider. If you do so and your agreement has not expired, you will be liable for any termination fees as detailed in clause 25.
36.8 telco.sydney reserves the right to charge to Port your MSN to or from telco.sydney.
36.9 You expressly authorise telco.sydney to provide information regarding your MSN, telco.sydney and the network type to be disclosed to other telecommunication service providers to enable the transfer of your mobile service from one mobile Service Provider to another, to allow call routing, for customer network fault management, for preventing of fraud, and for routing of SMS messages to your MSN after porting activity. For further information on the Porting process please refer to the MNP CODE.
37.0 telco.sydney Direct Services and Local Number Portability
37.2. Local Number Portability (LNP) refers to the transfer of a standard telephone service number (for example, a Business Line service or an ISDN 10) between service providers. Local Number Porting includes transfers between Telstra and its service providers and between Telstra and other carriers.
Porting local numbers to, or from, telco.sydney takes between 30 and 120 working days.
37.4. Pricing - Customers waiting for their services to port to
telco.sydney Direct Network will be charged at telco.sydney “s standard rates until the port is completed.
37.5. Transferring Numbers from a telco.sydney Direct Service. If the service is still under Agreement with telco.sydney then the customer will be liable to pay an early termination fee, along with all outstanding usages charges. Any costs associated with the move away from telco.sydney to another carrier are the sole responsibility of the customer and may include connection fees charged by the new carrier and PABX programming.
39.1 You will keep confidential all information supplied by the carrier or us.
40.0 Force Majeure
40.1 We will not be liable for any delay in the connection of or failure in the operation of services due to any occurrence reasonably beyond our control including failure of any link provided by the carrier.
41.0 Entire Agreement
41.1 This agreement contains your and our entire understanding to the exclusion of any and all prior or collateral agreement of understanding relating to the services provided whether oral or written. You acknowledge that you have not entered into this agreement in reliance upon any statement made by us, other than as expressly contained in this agreement.
41.2 If any part of this agreement is found to be invalid or of no force or effect this agreement shall be construed as though such part had not been inserted and the remainder of the Agreement shall retain its full force and effect.
41.3 To the extent that any service specific term or condition conflicts with any other term or condition in this agreement, the term or condition specific to the service will apply.
42.1 We may assign the benefit of this Agreement at any time to a person or corporation nominated by us, including a carrier, and, in this event, such assignee or nominated carrier shall deal directly with you for the purposes associated with the provision of Services under this Agreement.
If you do not consent to use of your personal information for certain reasons, we may not be able to provide you with our services or products.
We may hold information that you have provided to us about yourself or your company, and definitely information about your use of our services such as telecommunications services and on-line services. Information that you might provide to us may include information provided in applying for goods or services such as a mobile phone, data or voice services - for example, your contact details, driver's license number, photo identification, general demographic information and financial information. Or information generated by your use of our services - for example, your usage or telecommunications calling patterns and details of any contact you have with telco.sydney such as through our staff or specific account managers. Finally, information provided as part of your use of the telco.sydney web site such as your address, contact numbers or email address/s.
We collect information about you to provide you with a particular product or service/s. We may also use personal information for related purposes such as providing our service or services, approving an application for telco.sydney services, internal accounting and administration, including sharing information with our related bodies corporate or credit agencies for reporting purposes, providing your contact details to recommended suppliers (after your written consent to do so) and for other approved purposes, attempting to protect you and telco.sydney from fraud, preventing credit infringement or developing a better understanding of your needs.
If you do not provide us with your personal information, we cannot provide you with these services.
Other than disclosure to service providers (explained below) or as required by law (for example, disclosure to various Government departments or to courts), our policy is that we do not generally give your personal information to other organisations unless you have given us your consent to do so.
We may share your personal information with service providers and other third parties to help us run aspects of our business efficiently. Occasionally telco.sydney might also use your personal information for other purposes or share your information with another organisation because:
we believe it is necessary to provide you with a service that you have requested;
- We believe it necessary to implement our terms of service;
- We believe it is necessary to protect the rights, property or personal safety of another telco.sydney customer, any member of the public or telco.sydney.
- we believe it is necessary to do so to prevent or help detect fraud or serious credit infringements - for example, we may share information with other utility companies, credit reporting agencies, law enforcement agencies and fraud prevention units;
- we believe it is necessary to protect the interests of telco.sydney for example, disclosure to a court in the event of legal action to which telco.sydney is a party; or
- The assets and operations of the business are being transferred to another party as a going concern.
telco.sydney likes to keep you up to date with our special offers and new services, unless you've specifically asked us not to. Please note that once you've signed up to an telco.sydney service, you can choose not to receive marketing information from us by calling our customer care team on 02 9136 6000.
If at any time you want to know what personal information we hold about you, you are welcome to request a copy of your customer record by calling the telco.sydney customer care team on 02 9136 6000.
If at any time you wish to change personal information that is inaccurate or out of date, please contact us and we will take reasonable steps to amend our records.
telco.sydney endeavours to take all reasonable steps to keep your personal information secure. Only authorised users can access your personal information, and access is only for approved purposes. We train our staff and require our data operators to respect the privacy and confidentiality of your information.
Unfortunately, we can't give you an absolute guarantee that your information is always secure. For example, no data sent over the internet is 100% secure. While we do our best, we can't be held responsible for events arising from unauthorised access to your personal information.