Terms and Conditions
1. ACCEPTANCE OF TERMS
1.1 Unless otherwise agreed in writing, the supply of all Services offered by AVANSER and/or its associates, related parties, successors and assigns (collectively referred to as “AVANSER”) to any persons (hereinafter referred to as “User”, “you” or “your”) shall be governed by the Terms & Conditions of Service (TCS) set herein.
1.2 This TCS is supplementary to the Website General Terms & Conditions, which govern the access and use of the Website, and all provisions are incorporated into the General Terms & Conditions by this reference. By using the Services described herein, you hereby acknowledge and agree to be bound by this TCS and the General Terms & Conditions.
2.1 In these Terms & Conditions of Service (“TCS”), the following terms and expressions shall have the following meanings:
(a) “AVANSER” means AVANSER Pty Ltd. (ABN
(b) “Carrier” means the third party telecommunications carrier who operates the Network;
(c) “Call Recording Service” means the service provided by AVANSER that enables you to record an Incoming Call;
(d) “Call Tracking Service” means the service provided by AVANSER that enables tracking of relevant Incoming Call information to be made, including but not limited to, the Calling Party’s Personal Information and location, advertising source, day, time and duration of the Incoming Call and Incoming Call history;
(e) “Calling Party” means a person from whom you receive an Incoming Call;
(f) “Incoming Call” means a telephone call that you receive using AVANSER’s Services;
(g) “Data” means any and all information and reports procured, collected or compiled by AVANSER in respect of a Calling Party, including, without limitation:
– Incoming Call logs;
– Incoming Call activity reports;
– Advertisement source of Incoming Calls; and
– Personal Information of a Calling Party;
(h) “Dynamic Call Routing Service” means the service provided by AVANSER than enables the automatic routing of Incoming Calls to appropriate branch or regional office based on the Calling Party’s phone number, and allows for prompting of the Calling Party to enter a postcode for appropriate routing when the Calling Party’s location cannot be determined;
(i) “Interactive Voice Response Service” means the service provided by AVANSER comprising a system for routing Incoming Calls or providing recorded information for improving Calling Party waiting time and call resolution;
(j) “Network” means the telecommunications network of the Carrier which AVANSER uses to supply the Services;
(k) “Missed Call Notification Service” means the service provided by AVANSER that enables the Recording of missed Incoming Call information to be made, including but not limited to, the Calling Party’s phone number if the number is not blocked, and a voicemail recording if the Calling Party leaves a message;
(l) “Personal Information” means information that may be used to identify a Calling Party, including without limitation, the Calling Party’s Incoming Call number, address, fax number and/or email address;
(m) “Phone Number” means an AVANSER telephone number that you wish to use to answer an Incoming Call;
(n) “Recording” means a recording of an Incoming Call;
(o) “Services” mean the services supplied by AVANSER under this TCS, comprising of the following:
– Call Recording Service;
– Call Tracking Service;
– Dynamic Call Routing Service;
– Interactive Voice Response Service;
– Missed Call Notification Service; and
– any other services as AVANSER may provide from time to time;
(p) “Website” means AVANSER’s website avanser.com
3. PROVISION OF SERVICES
3.1 In supplying the Services, AVANSER shall provide the following:
– a Phone Number through which the Services shall be utilised and which forms part of the Network of the Carrier;
– equipment required for handling and managing the Services which AVANSER in its sole discretion considers appropriate and necessary; and
– reasonable technical and sales support which AVANSER in its sole discretion shall consider appropriate and necessary.
3.2 Unless explicitly stated otherwise, any new services, features, content or applications offered or made available from time to time by AVANSER to you shall be subject to this TCS.
4. YOUR OBLIGATIONS
4.1 In using the Services, you expressly agree and acknowledge that:
the Phone Number provided is made available to you only in connection with the supply of Services by AVANSER, and forms part of the Services so supplied; accordingly:
– you are not entitled to, and you have no right or interest in, any Phone Numbers supplied by AVANSER to you if you decide to terminate the Services herein;
– you must not port any Phone Numbers supplied by AVANSER to an alternative service provider or Carrier or Network without the prior written consent of AVANSER. You hereby acknowledge and agree that AVANSER shall be entitled to receive compensation from you of an amount to be determined by AVANSER in its sole and exclusive discretion should AVANSER agree to grant consent to you in respect of the aforesaid porting.
AVANSER may, without any notice or liability to you, discontinue or modify any Phone Numbers supplied to you at any time for any reason whatsoever, including but not limited to discontinuance or modification required by reason of a request made by the Carrier, Network requirements or statutory, regulatory and legal compliance. You hereby acknowledge and agree that:
– you must, unless this TCS is terminated in accordance with Clause 7, accept any such new or modified Phone Numbers issued to you by AVANSER and that AVANSER shall, but is not obliged to, give you written notice of any discontinuance of, or modifications made to, a Phone Number as soon as is reasonably practicable; and
– you have no claim against AVANSER for any loss or damage you may suffer as a result of such discontinuance or modifications.
AVANSER may from time to time, change, enhance or update any and all equipment described in Clause 3.1(b) for any reason whatsoever without any notice or liability to you. You hereby acknowledge and agree that you have no claim against AVANSER for any loss or damage you may suffer as a result of such change, enhancement or update.
4.2 You further acknowledge, agree and warrant that:
you will refrain from taking any action which has or is likely to have the effect of interfering with or threatening the operation, stability, viability or integrity of the Network;
you must only use the Services for your own business needs and requirements;
you must not use the Services for your personal purposes nor for any purposes which are unlawful, abusive, harmful, threatening, defamatory or in any way infringing any copyright, trademark or other intellectual property rights of any other persons;
you must not re-supply, re-sell, chain or group the Services in any way without the prior written consent of AVANSER;
you are fully responsible for maintaining the confidentiality of your Services password and account issued to you by AVANSER, and are fully responsible for all activities the occur under the same. Accordingly, you must:
(i) immediately notify AVANSER of any unauthorised use of your password or account or any other breach of security; and
(ii) ensure that you exit from your account at the end of each session;
AVANSER will not be liable to you for any loss or damage you may suffer if a person quoting your password requests changes to your Service or account details. You will be responsible for all fees associated with your Service and account whether transactions were authorised by you or not.
you must co-operate with AVANSER in relation to any complaints, enquiries or investigations into or in connection with any services offered by you, in which the Services supplied by AVANSER are utilised. You hereby agree and acknowledge that you shall, at AVANSER’s discretion, and without limitation, bear in full any costs associated with such complaints, enquiries or investigations.
4.3 You also agree that you must ensure that any other persons having access to, or are using, the Services, including your employee, contractor, officer, agent, authorised representative or other third party, shall be made aware of and will observe the same restrictions as described under Clauses 4.1 and 4.2 above.
5. CALL RECORDINGS AND PERSONAL INFORMATION
5.1 As part of the process of supplying the Call Recording Service to you or in any other Services supplied to you where Recordings are, at your option, made by us, whenever a Calling Party dials your Phone Number:
– you are requesting AVANSER to initiate an Incoming Call Recording. Once initiated, AVANSER will record the full length of the Incoming Call; and
– you are requesting AVANSER to collect or compile Personal Information in respect of the Calling Party.
5.2 In using the Call Recording Service or any other Services where Recordings are, at your option, made by us, you expressly agree and acknowledge that:
(a) you authorise AVANSER to make Incoming Call Recordings and collect Personal Information on your behalf. Without limiting the generality of the aforesaid, you specifically authorise AVANSER to act as your agent in respect of all Caller Line Identification data collected by AVANSER;
(b) you either:
(i) authorise AVANSER to play a voice message advising the Calling Party that the Incoming Call is being recorded prior to the said Incoming Call being connected to you or your employee, contractor, officer, agent, authorised representative or other third party answering the Incoming Call; OR
(ii) make the necessary arrangements to ensure that the Calling Party is provided with the necessary warning about the presence of any Recordings made of an Incoming Call;
(c) all Incoming Call Recordings are stored by AVANSER for a period of one (1) month, commencing the date that a Recording is made. Following the expiry of the storage period, you will not be able to retrieve a copy of the Recording and you hereby acknowledge and agree that AVANSER shall have no liability whatsoever for any failure to retain or store such copies of Recordings beyond the said storage period;
(d) all Personal Information collected or compiled by AVANSER for, and supplied to, you must be used by you and your employee, contractor, officer, agent, authorised representative or other third party in compliance with the law, including without limitation, any provisions under the Telecommunications Act 1997 (Cth), Privacy Act 1988 (Cth), and the Telecommunications (Interception) Act 1979(Cth) and all regulations or guidelines promulgated thereunder;
(e) you must notify your employee, contractor, officer, agent, authorised representative or other third party that their telephone conversation with a Calling Party in respect of an Incoming Call is being recorded by AVANSER through or in connection with the Services; and
(f) AVANSER shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorised representative or other third party, of the Recordings and its contents, and/or of any Personal Information.
6. BILLING AND PAYMENT
6.1 You will be charged in accordance with the rate schedule published or notified by AVANSER from time to time. AVANSER reserves the right to change the rates from time to time. All Charges are exclusive of GST.
6.2 You shall pay any and all amounts invoiced by AVANSER to you in relation to the provision of Services by the due date specified in any such invoice. Without limiting any other rights AVANSER may have under this TCS or by force of law or equity, if you fail to make full payment of the aforesaid by the due date, AVANSER may:
(a) charge interest at the rate of 10% per annum calculated daily on all overdue monies (excluding interest under this Clause) until the same is paid in full;
(b) charge an administrative fee for any administrative costs incurred in respect of the your failure to make full payment hereof;
(c) cancel or suspend your account or your Phone Number;
(d) terminate any contracts between you and AVANSER and demand immediate payment of monies due and owing under such contracts;
(e) cancel any rebate, discount or allowance due or payable by AVANSER as at the date of the event;
(f) institute any recovery process as AVANSER thinks fit at your sole cost and expense.
6.3 You hereby acknowledge and agree that you are not entitled to set off or deduct any amounts due and owing by you under this TCS, whether or not an existing dispute or claim has been made by you against AVANSER or for any reason whatsoever.
7. TERM AND TERMINATION
7.1 This Agreement shall continue until terminated.
7.2 This Agreement will immediately and automatically terminate if AVANSER’s right to provide the Services ceases for any reason.
7.3 AVANSER may immediately suspend or discontinue the provision of the Services to you, or terminate this Service Agreement with immediate effect by giving notice to you at any time if, in AVANSER’s reasonable opinion:
(a) you breach any of your obligations under this TCS;
(b) you fail to pay any AVANSER invoice by the due date and time shall be of the essence;
(c) you cease, or threaten to cease to conduct business in the normal manner; and
(d) AVANSER’s right to provide Services or any Carrier’s right to provide access to the Network ceases or is suspended or interrupted for any reason whatsoever.
7.4 Either party may terminate this agreement with 30 days advance notice in writing.
8. INTELLECTUAL PROPERTY
8.1 For the purposes of this TCS, “Works” mean any and all proprietary materials and information embodied in, or relating to, the Services, including:
(a) all technical processes, systems, methods, software design, algorithms, codes, scripts and databases;
(b) all inventions, discoveries, improvements, enhancements, processes, information and know-how;
(c) the Website and all AVANSER domain names, trademarks, trade names, get-ups, whether registered or not;
(d) all documentation and other records, reports, documents, papers and other materials whatsoever pertaining to the Services; and
(e) any derivative works of any of the aforesaid.
8.2 You hereby acknowledge and agree that:
(a) all proprietary rights, title and interests created or embodied in the Works belong to AVANSER to the fullest extent of the law, including all rights to copy, assign or licence such rights, title and interests to others for any purpose as AVANSER sees fit in its sole and absolute discretion;
(b) accordingly, without prior written consent of AVANSER;
(i) you must not supply, sell or otherwise make available the Works or any parts thereof to any third parties; and
(ii) that you will, at your sole cost and expense, do all acts necessary to ensure that if, as a result of any breach of your obligation under Clause 8.2(b)(i), AVANSER’s proprietary rights, title or interests herein have been infringed, such infringement shall cease immediately.
9.1 AVANSER will at all times maintain as confidential, Confidential Information, meaning all Works, technical and business information and associated matter now in your possession and control or which may exist in the future including but without limitation data, reports, studies and customer information. Confidential Information shall not include information which is generally available in the public domain or was known by AVANSER prior to the disclosure by you or by your employees, representatives or associates.
9.2 Unless expressly stated otherwise in this TCS or in any other terms of service as may be specified by AVANSER in respect of the provision of any service, or unless prohibited by any laws or regulations, all Data resulting from the provision of the Services may be used for AVANSER’s own internal research and record keeping purposes and whilst respecting the confidentiality of such Data, AVANSER may extrapolate and use the Data for the aforesaid purposes.
10. STATUS OF USER
10.1 In using the Services, you acknowledge and agree that:
(a) there is no relationship between you and AVANSER in common law, contract or otherwise other than that as a User;
(b) save for the making of any Incoming Call Recording and the collection of any Personal Information by AVANSER in accordance with Clause 5 on your behalf, nothing in this TCS shall create or imply an agency relationship between you and AVANSER, nor will this TCS be deemed to constitute a joint venture or partnership between you and the AVANSER; and
(c) accordingly, you have no authority or power to enter into any agreement to create any obligation or responsibility on behalf of or in the name of AVANSER.
11. COMPLIANCE WITH LAWS
11.1 You will at all times comply with the provisions of all laws to your use of the Services and any Recording, including without limitation the Telecommunications Act 1997 (Cth), Privacy Act 1988 (Cth), and the Telecommunications (Interception) Act 1979 (Cth) and all regulations or guidelines promulgated thereunder. In particular, you are solely responsible for giving the Calling Parties any necessary warning about the presence of any Recordings made of an Incoming Call and the use or uses that will be made of the same.
11.2 AVANSER shall have no obligation to advise you upon compliance with any such laws. You shall indemnify and keep indemnified AVANSER from and against any liability arising from any claim that your use of the Service and/or a Recording breaches any law.
12. LIMITATION OF LIABILITY AND INDEMNITY
12.1 In the event that this TCS constitutes a supply of services by AVANSER to a person as defined in the Competition and Consumer Act 2010 (Cth), (“the Act”), to the fullest extent permitted by law, all conditions, warranties, representations, liabilities and obligations, whether expressed or implied, including any conditions or warranties as to merchantability, fitness for purpose or correspondence with description or representations as to results arising from the use of the Services, are hereby excluded by AVANSER.
12.2 AVANSER shall not be liable, under any circumstances, for your indirect, special, incidental or consequential loss or damage that may arise in respect of this TCS or loss of profit, business, revenue, goodwill or anticipated savings, and AVANSER’s liability under this TCS shall be limited solely to the supplying of the Services again or the payment of the cost of having the Services supplied again, as AVANSER may select.
12.3 You shall indemnify AVANSER against all claims, demands, liabilities, loss, expenses, costs and damages incurred by or made against you, as a result of, or arising in connection with, any breach of your obligations under this TCS, including, without limitation, any failure to comply with Clauses 5.2(b)(ii), 5.2(d) and 5.2(e) in respect of Incoming Call Recordings and Personal Information.
13.1 AVANSER may, from time to time, make reasonable variations to this TCS if necessary to comply with any contractual, statutory or a regulatory requirement.
13.2 This TCS contains the entire understanding and agreement between the parties as to its subject matter. No oral explanation or information provided by any party to another shall affect the meaning or interpretation of this agreement or constitute any collateral agreement, warranty or understanding between the parties.
14. APPLICABLE LAW
14.1 The laws of the state of New South Wales govern this TCS and the parties agree to submit to the jurisdiction of New South Wales courts and tribunals.
15. WAIVER AND SEVERABILITY OF TERMS
15.1 The failure of AVANSER to exercise or enforce any right or provision of this TCS shall not constitute a waiver of such right or provision.
15.2 If any provision of this TCS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TCS remain in full force and effect.
16. REFUND & CREDIT ADJUSTMENTS
16.1 AVANSER does not provide any refund for any cancellation of services. However, the Company reserves the right to offer credit in select
circumstances at its sole discretion. Each circumstance is unique and will be assessed on a case by case basis.
Supply of INTERNET Services
The below terms apply when the supply of internet services are included.
1.1 In this Addendum, the following terms and expressions shall have the following meanings:
a) “AVANSER Equipment” means any equipment owned by AVANSER and/or provided by AVANSER to You for use in connection with the Services, other than equipment supplied by AVANSER to You by outright sale.
b) “AVANSER Network” means the telecommunications network used by AVANSER to provide the Services.
c) “Act” means the Telecommunications Act 1997 (Cth).
d) “Attachment Circuit or Access” means a physical connection between a Customer and the AVANSER Network which allows delivery of the Service.
e) “Billing Dispute” means a dispute relating to a Charge and/or an invoice issued by AVANSER.
f) “Confidential Information” of a party includes all information of a party marked as confidential or which the other party knows or ought reasonably to be aware is confidential (regardless of its form and whether the other party becomes aware of it before, on or after the date of this Agreement) but excludes information that is publicly known other than as a result of a breach of the obligations of confidentiality under this Agreement.
g) “Customer” means You.
h) “Customer Authority” means an authority given by or on behalf of an End User in writing (and signed) authorising the transfer of their service.
i) “DSL” means Digital Subscriber Line. DSL is a family of technologies that allows the transmission of high bandwidth digital data over the wires of a local telephone network.
j) “DSL Access” means the Attachment Circuit delivered using AVANSER ADSL/ADSL2+, iiNet ADSL2+ and Telstra L2IG, ADSL/ADSL2+.
k) “EFM or Ethernet First Mile” means a technology that allows the transmission of high bandwidth digital data over the copper wires of a local telephone network.
l) “End User” means any person who acquires the Services (or part thereof) from You and uses those Services (with or without Your authorisation).
m) “Event of Default” occurs where:
i. You fail to pay any sum payable under this Agreement by the due date for payment;
ii. You breach any provision of this Agreement and the breach is not capable of remedy;
iii. You breach any provision of this Agreement which is capable of remedy and fail to remedy the breach within 7 days of the date of a notice from AVANSER demanding that the breach be remedied;
iv. any step is taken (including without limitation, an application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for:
• Your winding up, dissolution, or administration; or
• Your entering into any arrangement, compromise or composition with or assignment for the benefit of Your creditors or any class of them, except for the purposes of a solvent reconstruction or amalgamation;
v. a receiver, receiver and manager, or other controller, administrator or similar officer is appointed with respect to, or takes control of, You or any of Your assets and undertakings;
vi. in AVANSER’s reasonable opinion there has been a material adverse change in Your financial position since the Commencement Date including, without limitation, as a result of a change in the value, nature or saleability of Your assets; or
vii. You have a Change in Control.
n) “Force Majeure Event” means an event or cause beyond the reasonable control of the party claiming force majeure including, without limitation, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes or lockouts.
o) “Individual Service” means a particular service ordered and supplied under an Order for Service.
p) “Initial Period” means in respect of an Individual Service where the Order for Service for that Individual Service specifies an “Initial Period” or “Minimum Period”, the duration of such specified period (which shall be deemed to commence on the date that AVANSER commences provision of that Individual Service). For avoidance of doubt, the Initial/Minimum Period is 24 months unless otherwise specified.
q) “Internet” means the worldwide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol.
r) “Internet Data Plan” means a plan setting out the basis on which the Charges for Your use of the Service will be calculated. The Internet Data Plan can be Usage Based, Prepaid, Standalone Prepaid, Flat Rate or 95th Percentile.
s) “Installation Charge” means a one-off Charge for labour, equipment, and associated cabling for initial installation of the FAST Fibre.
t) “Invalid Transfer” means a Transfer for which one or all of the following events apply:
i. where the End User did not authorise the Transfer of the service;
ii. where a valid Customer Authority cannot be produced by the Gaining Service Provider (GSP) to support the Transfer;
iii. which resulted from a processing error; or
iv. which has been rescinded within the cooling off period in accordance with the applicable fair trading legislation.
u) “NTU” means Network Termination Unit.
v) “Order for Service” means an order for any Service or Individual Service that You have submitted to AVANSER in writing on an AVANSER prescribed order form signed by You which may be sent via email as notified by AVANSER to You from time to time and which has been or may be (as applicable) accepted by AVANSER, as such Order for Service is amended from time to time
w) “Order Withdrawal Charge” means a charge that is the sum of:
i. all costs incurred by AVANSER in respect of the Individual Service(s) being cancelled by You; and
ii. all costs committed to by AVANSER in respect of the Individual Service(s) being cancelled by You, up to and including the date on which You
iii. provide AVANSER written notice that You are cancelling Your order for the Individual Service(s) or the Order for Service in its entirety (as applicable);
x) “Planned Outage” means a period of time as reasonably determined by AVANSER, that AVANSER may interrupt supply of the Services to the Customer for routine maintenance, upgrading or other similar activities, after giving the Customer reasonable prior notice.
y) “Premium Access” means Business Access and/or Ethernet Access.
z) “Services” mean the services supplied by AVANSER under this TCS, comprising of the following:
i. Hardware and Telephony
ii. Fast Fibre Service
iv. IP-Line Service;
v. IP VPN Service;
vi. any other services as AVANSER may provide from time to time;
aa) “Standard Access” means AVANSER’s standard access portfolio, utilising access technologies such as ADSL/ADSL2+ and Ethernet Bitstream with best effort traffic class.
bb) “We” means AVANSER Pty Ltd
2. SUPPLY & PROVISION OF SERVICES
2.1 The Supply of Services
a) AVANSER will provide the Services to You using the AVANSER Network on the terms of this Agreement.
b) You will use the Services (and will ensure that Your End Users use the Services) in accordance with this Agreement and all applicable laws.
2.2 In supplying FAST Fibre Services, AVANSER shall provide the following:
a) FAST Fibre is only available at AVANSER’s selected coverage areas and provisioning is subject always to service qualification. A Site that is connected via fibre to AVANSER’s network does not necessarily mean that the Site qualifies for a FAST Fibre. AVANSER does not guarantee availability in all areas.
b) Any nominated provisioning timeframes are based on there being no objections from any building owner or occupier at the Site. If there are objections raised, the timeframe for delivery will extend until the expiry of the objection process. Where the objection is sustained, AVANSER may cancel an order without penalty.
c) Supply of the FAST Fibre for some Access Network Types may be limited by the build costs. The Charges for any building works are based on the information You have provided to AVANSER. If that information is inaccurate or an unforeseen event occurs, We may charge You for any additional cost We incur in completing the building works provided that, if reasonably practicable, We notify You of such additional costs before they are incurred and agree them with You. If there are additional costs and you do not agree with them, AVANSER may cancel the relevant order(s) without penalty.
2.3 In supplying Fibre400/Fibre1000 Services, AVANSER shall provide the following:
a) Fibre400/Fibre1000 services are only available at AVANSER’s selected coverage areas. A site that is connected via fibre to AVANSER’s network does not mean that the site qualifies for a Fibre400/Fibre1000 site.
b) Any nominated provisioning timeframes are based on there being no objections from any building owner or occupier at the Service delivery address. If there are objections raised, the timeframe for delivery will extend until the expiry of the objection process. Where the objection is sustained, AVANSER may cancel an order without penalty.
c) Supply of the Fibre400/Fibre1000 Service may be limited by the build costs. The Charges for any building works are based on the information You have provided to AVANSER. If that information is inaccurate or an unforeseen event occurs, We may charge You for any additional cost We incur in completing the building works provided that, if reasonably practicable, We notify You of such additional costs before they are incurred and agree them with You. If there are additional costs and you do not agree with them, AVANSER may cancel the relevant order(s) without penalty.
2.4 In supplying IP-Line Services, AVANSER shall provide the following:
a) Attachment Circuit: The Attachment Circuit is an access circuit that provides a physical connection from the Customer’s network or the End User’s network to the AVANSER Network. The Attachment Circuit may be provisioned via AVANSER owned infrastructure or Third Party infrastructure. You may choose from:
i. Premium Grade Access
i. Ethernet Access – includes AVANSER Ethernet Access, Optus e-Link and Telstra access products (TWBGE, Ethernet Access Fibre and MLL-E);
ii. Business Access – includes Telstra Ethernet Access Copper.
ii. Standard Grade Access
i. Standard Access – includes AVANSER (ADSL/ADSL2+ Annex A & Annex M, EFM), iiNet (ADSL2+ Annex A & Annex M), Telstra L2IG and NBN Co Ethernet Bitstream (where available).
b) IP-Line Link: The IP-Line Link provides a logical connection from the Customer’s network or the End User’s network to the AVANSER Network at speeds of up to 10Gbps depending on the available infrastructure at the Site.
i. AVANSER provides You with dedicated connectivity to the Internet. The IP-Line Link bandwidth selected by You for a Site will determine the amount of bandwidth available for use by that Site for access via the AVANSER Network to the Internet. A range of bandwidths exists up to 10Gbps (or as notified by AVANSER to You from time to time).
c) Internet Connection: The IP-Line Link is connected to an IP interface within the AVANSER Network to provide connectivity to the Internet. You may choose one of the following Internet Data Plans for each Individual Service (an Individual Service):
i. Usage Based Internet Data Plan: AVANSER will charge you a monthly usage charge for each Mbyte or Gbyte of traffic downloaded for each Individual Service on a Usage Based Internet Data Plan. Tiered pricing applies depending on your volume of usage. You may have one or multiple Individual Services associated with a Usage Based Internet Data Plan.
ii. Prepaid Internet Data Plan: This plan provides You with a monthly Internet download usage allowance (e.g. 100GBytes) (the Download Usage) for an Individual Service or for multiple Individual Services. You are required to pay a minimum monthly charge for the Download Usage. Where multiple Individual Services are nominated then Your usage will be calculated by totalling the cumulative usage for all nominated Individual Services. If Your total monthly usage exceeds the Download Usage, You will be liable to pay Excess Usage Charges.
iii. Standalone Prepaid Internet Data Plan: This plan provides You with a monthly Internet download usage allowance (e.g. 100GBytes) (the Download Usage) for an Individual Service. You are required to pay a minimum monthly charge for the Download Usage. If Your monthly usage exceeds the Download Usage, You will be liable to pay Excess Usage Charges. The Standalone Prepaid Internet Data Plan is only available where the Service is delivered via a Standard Access.
iv. Flat Rate Internet Data Plan: This plan provides You with unmetered Internet usage. A fixed monthly charge applies based on the Internet bandwidth, which is determined by the speed of the IP-Line Link. There are no Excess Usage Charges associated with this plan. Flat Rate Internet Data Plan delivered via Ethernet Access with speeds of 2Mbps up to 40Mbps can only be used to connect directly to an End User’s network and cannot be used to aggregate traffic from multiple End User’s network.
v. 95th Percentile Internet Data Plan: AVANSER will charge You a monthly recurring fee based on Your Minimum Committed Bandwidth (MCB). If Your monthly usage exceeds the MCB based on the 95th Percentile calculation method, then you will be liable to pay Excess Usage Charges. You can select an MCB for one Individual Service or for multiple Individual Services. Where multiple Individual Services are nominated, then the 95th Percentile usage calculation will be based on the cumulative usage for all the nominated Individual Services. The 95th Percentile Internet Data Plan is only available on Ethernet Access delivered via AVANSER Fibre infrastructure. Bursting above the MCB is provided on a best effort basis and is subject to capacity availability.
2.5 In supplying IP VPN Services, AVANSER shall provide the following:
a) Attachment Access: The Attachment Access is an access circuit that provides a connection from each Site to the AVANSER Network for the transmission of data between each Site via the AVANSER Network, at speeds ranging from 64kbps to 1Gbps (as chosen by You).
b) IP VPN Link & QoS Package: The IP VPN Link provides a logical connection from each Site to the AVANSER Network. Each IP VPN Link will, depending on the Attachment Access You select, incorporate one of the following chosen Quality of Service (QoS) Packages on a per Site basis:
i. No QoS;
ii. BD Only;
iii. Simple QoS; or
iv. Flexible QoS.
c) IP VPN Link Management: You may choose either AVANSER Managed or Bandwidth Only IP VPN Link Management. If You have chosen for AVANSER to Manage Your IP VPN Link then We will supply, install and manage the appropriate CPE for each Site.
2.6 Our Services include post-sales project management. AVANSER will assign a project manager to the project who will undertake the responsibility of ensuring that the network design is implemented in a timely manner as agreed between us. The project management work will be carried out by AVANSER at a level and for a duration which in AVANSER’s sole opinion is necessary to ensure the Services are satisfactorily provided.
3. ORDERING & ACCEPTANCE PROCEDURES
3.1 During the Term, You may order Services or additional Service quantities at any time from AVANSER by submitting an Order for Service to AVANSER.
4. AVANSER EQUIPMENT
Where AVANSER provides You with AVANSER Equipment, the provisions of this clause 4 apply.
4.1 Use of AVANSER Equipment
a) You must use AVANSER Equipment in accordance with any directions of AVANSER notified to You from time to time.
b) You will ensure that the AVANSER Equipment is not damaged and remains in good condition.
c) You must notify AVANSER promptly on becoming aware of any damage to or malfunction of the AVANSER Equipment or that any AVANSER Equipment requires maintenance of any kind.
d) AVANSER may, subject to giving reasonable notice and at AVANSER’s cost, change, modify, replace or remove the AVANSER Equipment in our absolute discretion.
4.2 Title to AVANSER Equipment – if AVANSER has provided any AVANSER equipment to You then:
a) the AVANSER Equipment always remains the property of AVANSER or the supplier (as the case may be);
b) You will not enter into any agreement for the transfer, sale, mortgage, granting of any security interest or other dealing in connection with the AVANSER Equipment;
c) You will not do anything or authorise anything to be done which might affect AVANSER’s ownership of the AVANSER Equipment;
d) You will not, without AVANSER’s prior written consent, remove or obscure any identification marks on the AVANSER Equipment;
e) You will comply with all reasonable instructions AVANSER gives You to protect AVANSER’s ownership of the AVANSER Equipment;
f) You will only use AVANSER Equipment at the location stipulated by AVANSER and will not part with possession of the AVANSER Equipment except to provide it to AVANSER;
g) You will allow AVANSER to and, where applicable, will ensure that Your landlord or any other relevant third party allows AVANSER to, enter and remove the AVANSER Equipment from Your premises upon expiry or termination of this Agreement; and
h) subject to clause 4.2(g), You will return the AVANSER Equipment to AVANSER’s possession as soon as practicable in accordance with any AVANSER request to do so where the AVANSER Equipment is no longer used by You or this Agreement has expired or is terminated.
4.3 Your Responsibilities for AVANSER Equipment
a) You bear the risk of loss or damage to the AVANSER Equipment from the date of delivery of such equipment to Your premises or when You pick it up and You indemnify AVANSER in respect of any such loss or damage.
b) AVANSER may charge You, in accordance with our standard time and material rates and terms, for any repair, maintenance or replacement of AVANSER Equipment which is required due to events other than normal wear and tear.
c) You will ensure that the AVASER Equipment, and any other equipment, facilities and connections which You use in connection with receiving the Service(s), is not altered, maintained, repaired or connected to, or disconnected from, any power source or line except by AVANSER or our authorised contractors unless We otherwise permit in writing.
d) You will make available an adequate power supply and environment (including air conditioning) for the operation of any AVANSER Equipment.
e) You are liable to pay AVANSER on demand any costs and/or expenses incurred in repairing or replacing the AVANSER Equipment, or other property owned by AVANSER or for which AVANSER is liable, which is damaged or destroyed as a result of connection to Your network.
4.4 Charges in respect of AVANSER Equipment
a) If any charge is payable for Your purchase or use of the AVANSER Equipment, You will pay that charge in accordance with this Agreement.
5. YOUR OBLIGATIONS
5.1 You acknowledge and agree that You are responsible for implementing and maintaining the security of Your network and equipment. You are liable to pay all Charges in connection with the use of a Service resulting from a breach of Your security.
5.2 Privacy Obligations
a) You must comply with Your obligations under the Privacy Act.
b) Without limitation, You must ensure that all personal information of End Users is handled in accordance with the Privacy Act.
c) You will comply with any reasonable direction of AVANSER with respect to the collection, use, disclosure, storage and disposal of personal information.
a) Each party shall comply with all relevant local, State and Commonwealth laws and regulations and any registered industry based codes of practice.
b) Each party must provide the assistance the other party reasonably requires to comply with relevant local, State and Commonwealth laws and regulations and any registered industry based codes of practice.
5.4 For Fast Fibre/Fibre400/Fibre1000, at each site:
a) You must provide space and power at the Site for the NTU;
b) You must ensure that the NTU is not damaged or interfered with in any way.
c) You must not offer or supply services to multiple End Users from a single Fibre400/Fibre1000 Service.
d) You must not use the Fibre400/Fibre1000 service for connecting your points of presence or network access points or for interconnecting with other carriers/carriage service providers.
e) Within 14 days of the termination of the acquisition of a FAST Fibre service for any reason, You must return the NTU to AVANSER. We reserve the right to charge you a fee of $1,0000 (ex GST) if you fail to return the NTU in accordance with this clause.
5.5 You must not (and must ensure that Your End Users do not) use the Service for the purpose of supporting:
a) substantial carrier or service provider data aggregation applications that result in substantial and continuous network throughput; or
b) connections for the purpose of providing or enabling carrier or service provider interconnection.
5.6 For IP Line Services
a) You must provide appropriate telecommunications hardware for connection to the Service Demarcation Point.
b) When supplied by Us, You must provide (and ensure that each of Your End Users provide) space and power for the NTU which complies with the environmental conditions set out in the NTU Specification Document. AVANSER reserves the right to make reasonable amendments to the NTU Specification Document (including the stated environmental conditions) from time to time.
c) You must pay all Charges resulting from the use of the Services, whether authorised by You or not.
d) The Internet by its nature is not secure and AVANSER does not provide as part of the Service, security features in the form of firewalls. You are responsible for providing any security or privacy that You require for Your computer networks and any data stored on those networks or accessed through the Service.
5.7 For IP VPN Services
a) You must provide space and power at Your Site (or where relevant you must ensure that Your End User provides space and power at its site) for the NTU which complies with the environmental conditions set out in the NTU Specifications Document. AVANSER reserves the right to make reasonable amendments to the NTU Specifications Document (including the stated environmental conditions) from time to time.
b) You must pay all Charges resulting from the use of the Services, whether authorised by You or not.
c) You must implement and maintain network security at Your site and where relevant ensure that Your End User implements and maintains network security at its site.
a) During the Term You must report any faults in accordance with the procedures advised to You by AVANSER for fault reporting. You acknowledge and agree that AVANSER will only respond to faults reported in accordance with these procedures.
b) AVANSER reserves the right to charge You at our then commercial rates for fault restoration services if AVANSER responds to a request from You and AVANSER is able to demonstrate that:
i. the failure to provide the Service to You or in respect of any End User was not due to a matter for which AVANSER is responsible; and
ii. the fact that AVANSER not being responsible for that matter would have been disclosed upon reasonable investigation by You.
6.2 Fault Restoration Exclusions
AVANSER’s fault restoration obligations do not extend to faults caused as a result of:
a) any fault in equipment, software or any network unit which does not form part of the network owned by AVANSER
b) damage due to causes external to the facilities used by AVANSER to provide the Service;
d) Force Majeure; or
e) planned outages.
7. AVANSER CHARGES
7.1 Charges for the Services
a) You agree and acknowledge that AVANSER may pass on any increases or special/once-off Third Party Service Provider charges incurred by AVANSER without notice where such charges impact the cost of supply of the Services to You.
b) For the avoidance of doubt and notwithstanding any other clause of this Agreement, Charges are subject to change on prior notice from AVANSER to You. Other than amendments to Charges permitted by this Agreement, Charges for Services the subject of a previously agreed Order for Service will be fixed for the Initial Period of the Order for Service and will not retrospectively be changed. At any time after expiry of the Initial Period of a Service, AVANSER may vary the Charges for that Service upon 30 days prior written notice.
c) You will be liable for all Charges, whether or not You authorised the particular use of the Services by another person, including Charges resulting from a hacking incident (including a SIM, PABX, IP PBX or SIP gateway device hack) or other breach of security, viral infection of any computer or related equipment, attacks from the Internet, denial of service attacks, account/password misuse, SPAM and misuse of the Service by third parties including Your employees and contractors.
d) You acknowledge and agree that if You withdraw or cancel
i. one or more Individual Service(s) from an Order for Service; or
ii. an Order for Service in its entirety before AVANSER has completed provisioning the Individual Service(s) or Order for Service (as applicable), You will be liable for and must pay AVANSER an Order Withdrawal Charge.
a) You must pay all amounts owing by You under this Agreement by electronic transfer, cheque or other means specified on the invoice and without set-off, counterclaim or deduction. Payments by credit card will incur an additional processing fee equal to any fee AVANSER incurs for processing Your credit card payment.
b) AVANSER is taken to have received a payment from You:
i. where it is made by electronic transfer or cash, on the date of deposit as shown in AVANSER’s bank account statement; and
ii. where it is made by cheque, on the date AVANSER receives the cheque or, if the cheque is dishonoured, on the date cleared funds are received by AVANSER as well as all dishonour fees and charges.
7.3 Time for Payment
a) You must pay all Charges (and any other amounts payable in accordance with this Agreement) set out in AVANSER’s invoice within 30 days of the date of the invoice. If You fail to pay AVANSER the Charges (and any other payable amounts) within this period, You will pay interest on the outstanding amount at the Interest Rate, which shall accrue daily from the due date for payment until the date payment in full is received by AVANSER. You will be liable to pay AVANSER all expenses (including legal costs and expenses and the fees of AVANSER’s debt recovery agents) incurred by AVANSER in relation to recovering payments due under this Agreement.
b) AVANSER will endeavour to invoice You monthly for Charges due under this Agreement but reserves the right to invoice You at any time. For the avoidance of doubt AVANSER may:
i. select the billing date for the month and this is subject to change at any time in AVANSER’s sole discretion;
ii. invoice You in whatever medium it chooses (always acting reasonably); and
iii. choose to provide invoices to You in e-mail form. In such circumstances You must provide AVANSER on request with a current e-mail address for this purpose and keep AVANSER informed of any changes to such e-mail address.
8. TERM AND TERMINATION
8.1 Upon termination of this Agreement for any reason, each party shall remain liable for those obligations that accrued prior to the date of termination.
8.2 This Agreement will commence on the Commencement Date and, unless terminated earlier in accordance with clause 8.5 or clause 8.6, will terminate automatically on termination of all Individual Services.
8.3 Any Individual Service Schedule will remain in effect for as long as an Individual Service is being supplied by AVANSER and acquired by You in respect of such Individual Service Schedule.
8.4 In respect of any Order for Service which specifies the relevant Initial Period, the Individual Service ordered under that Order for Service will remain in effect for the Initial Period and will be automatically renewed for successive periods of one month each unless and until terminated by either party:
a) by giving to the other party 30 days prior written notice; or
b) otherwise in accordance with this clause 11.
8.5 Termination by You
You may terminate all or any Individual Services by notice in writing to AVANSER if AVANSER materially breaches this Agreement in relation to that Individual Service and fails to remedy the breach within 30 days of receipt of written notice from You requiring the breach to be remedied.
8.6 Termination or Suspension by AVANSER
i. You commit an Event of Default;
ii. AVANSER believes it is necessary to do so to comply with any law or an order or request of any government or regulatory body, to protect any person, equipment or the AVANSER Network and/or to attend to any emergency;
iii. AVANSER is unable to supply, or continue to supply, You with the Services due to the cancellation, suspension or termination of any agreement with our suppliers, for whatever reason;
iv. AVANSER is unable to supply, or continue to supply, You with the Services for whatever reason (for example, due to geographical coverage, capacity or technical capability limitations); or
v. a Force Majeure Event prevents either party from performing all or substantially all of its obligations under this Agreement (other than an obligation to pay money),
then AVANSER may, in its absolute discretion, and without prejudice to its other rights and remedies:
vi. immediately cease, limit or suspend the supply of any Service temporarily or permanently without giving You prior notice; and/or
vii. immediately terminate this Agreement (all Individual Services and all Order(s) for Service) by notice in writing to You.
b) AVANSER may, but is not obliged to, arrange for the suspension of a Service without notice to You in circumstances where AVANSER reasonably suspects that there has been unauthorised use of the Service (including but not limited to, as a result of a hacking incident or fraudulent or illegal use).
c) For the avoidance of doubt, nothing in clause 8.6 limits Your obligations under clause 7.1(d).
9. EFFECT OF TERMINATION
9.1 You will be liable to pay a Cancellation Charge if:
a) You terminate all or any Individual Services or the Agreement before the end of the Initial Period other than in accordance with clause 8.5; or
b) We terminate all or any Individual Services or the Agreement prior to the end of the Minimum Period in accordance with clause 8.6.
c) Unless expressly stated otherwise in a Service Schedule, a Cancellation Charge is an amount calculated as 95% of all monthly recurring Charges that, but for the early termination, would have been paid by the Customer between the date of the termination and the date of the expiry of the Initial Period. You agree that the Cancellation Charge is a reasonable estimate of our likely financial loss if any Individual Services are terminated prior to the end of the Initial Period.
d) On termination of this Agreement, all unpaid sums owing by each party will immediately become due and payable to the other party, and the party owing any money not paid within 2 Business Days of the date of termination will be liable to reimburse the other party for all reasonable legal costs and disbursements incurred by the other party in the recovery of such sums.
e) On termination of this Agreement each party must immediately discontinue any use of the other party’s Confidential Information (and must return or destroy such Confidential Information if directed to do so by the other party).
f) On termination of this Agreement, You must not hold Yourself out, or permit or suffer Yourself to be held out, as having any continuing relationship with AVANSER and You must immediately cease use of the AVANSER 1414 override code and any trademark or name used by AVANSER.
10. EARLY TERMINATION
10.1 The pricing for our Services have been set based on You acquiring the Service for the full minimum period (i.e. Initial Period) nominated in the Order. Notwithstanding any other conditions contained in the Service Agreement between you and AVANSER, the Service must be acquired for the minimum term. If you breach this clause, You must pay AVANSER on demand a termination fee that is calculated as 95% of the monthly recurring Charges that would have applied for the balance of the minimum term.
10.2 If you request and We agree to a relocation of Service where the:
a) relocation is within the same building; or
b) relocation is another site within AVANSER’s selected coverage areas;
The Parties agree that pricing for the relocation will be as notified upon application and the early termination fee set out in clause 10.1 will be waived, provided that the Initial Period of the relocated Service is the same as the remainder of the Initial Period of the Original Service.
11. ORDER WITHDRAWAL CHARGES
11.1 If You withdraw an Order for the Service before the Service is available for use, the following Charges apply depending on when the Order is withdrawn:
a) If the Order is withdrawn after Order acceptance but before AVANSER commences building the access to support the Service, a once-off charge of $750 (ex GST); OR
b) After then, a once-off charge of $5,500 (ex GST).
12.1 Each party represents and warrants to the other party that:
a) it is duly incorporated under the jurisdiction of its incorporation, with all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently owned, leased, operated and conducted;
b) it has full power and all necessary rights to enter into this Agreement and to perform its obligations according to the terms of this Agreement; and
c) none of the following has occurred nor is subsisting or threatened:
i. the appointment of an administrator to the party;
ii. any step taken for the winding up, dissolution, or administration of the party or the party entering into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
iii. the party being (or taken to be under applicable legislation) unable to pay its debts, other than as the result of a failure to pay or a debt or claim the subject of a good faith dispute;
iv. the party stopping or suspending, or threatening to stop or suspend, payment of all or a class of its debts; or
v. the appointment of a receiver, receiver and manager, administrator, receiver or similar officer to any of the assets and undertakings of the party.
13.1 You acknowledge that the AVANSER Network is not necessarily a secure and confidential method of communications and You transmit material on the AVANSER Network and the Internet at Your own risk.
13.2 You acknowledge that AVANSER does not and cannot in any way supervise, edit or control the nature, content and form of any material available to be accessed through use of the Services and that AVANSER is not responsible in any way for the nature, content and form of that material, access to that material or use of that material.
13.3 You acknowledge that AVANSER will not be responsible for ensuring that any material sent or received by means of the Services is sent or received correctly.
13.4 You acknowledge that AVANSER may access and store certain content accessible through use of the Internet (known as caching) for fast and easy access by Customers, that content is updated on a regular basis but there may be delays in that updating and therefore content accessed through the Service may not be the most up to date version.
13.5 Neither AVANSER nor Third Party Service Provider exercises any control over the content accessible through the Internet.
13.6 You acknowledge that, to the extent permitted by law, AVANSER makes no representations or warranties as to the effectiveness or fitness for purpose of AVANSER’s network security or Your network security. You shall make no claim against AVANSER concerning AVANSER’s Network security or Your network security.
13.7 You acknowledge that AVANSER will not be responsible for any damage that You suffer arising from using:
a) the Service (including, but not limited to loss of data, delays, non-deliveries, or mis-deliveries); and
b) any content accessed through the Service (including inaccurate, incomplete or out of date information).
13.8 You acknowledge and agree (and warrant that Your End Users acknowledge and agree) that Our Third Party Service Provider may apply a profile to the Service which may:
a) adversely impact the quality of the Service;
b) affect your ability to order or modify the Service; and
c) mean you cannot raise a fault ticket relating to the Service.
13.9 You acknowledge and agree (and warrant that Your End Users acknowledge and agree) that the operation or performance of the Service can be adversely impacted by another service, equipment or network of a Third Party Service Provider.
13.10 You acknowledge and agree (and warrant that Your End Users acknowledge and agree) that if You or Your End User acquires an Ethernet Bitstream based Service:
a) this may result in the termination of any existing copper voice or non-voice services and You consent (and warrant that Your End User consents) to such disconnection. You agree to indemnify AVANSER against any claim or liability arising from the disconnection of any existing copper voice or non-voice service resulting from the supply of the Ethernet Bitstream based Service;
b) You will be responsible for registering (or reregistering if any changes occur to the device specification) the End User CPE modem device. Registering the CPE modem device signals that You have tested and verified that the device is compliant with the minimum set of standards as defined by the NBN. Failure to register the CPE modem device will mean that only limited support options (limited to connectivity investigations) will apply to the relevant Service;
c) You have received the relevant authority from Your End User to conduct an enhanced Service Qualification to the NBN within the last 45 calendar days;
d) We may not be able to supply the Service in the event of a Power Outage; and
e) the performance of any activities required to install or activate the Ethernet Bitstream based Service may cause temporary interruption to your current services (such as cable pay TV service).
13.11 If battery back-up is supplied as an option for the Service:
a) You acknowledge and agree, and will ensure that Your End User acknowledges and agrees that:
i. battery back-up will only provide power to the UNI-V ports in case of a power outage. It will not operate to supply back-up power to Your or Your End User’s handsets or to Your or Your End User’s broadband equipment. Depending on usage, the battery back-up can supply power to the UNI-V ports for 2-3 hours after a power failure before reaching the 50% power availability level. At this point it will switch off to preserve the remaining power for emergency use only;
ii. the back-up battery is not installed by AVANSER and if the back-up battery is not correctly installed or functioning correctly, the Service will not function during a power outage. AVANSER is not liable for installation or functionality (including any incorrect installation or malfunction) of the back-up battery; and
iii. replacement of a back-up battery that has ceased to supply electrical charge will be Your or Your End User’s responsibility; and
b) You will seek and keep records of informed consent of Your End User when making a selection to either receive or not receive battery back-up option.
13.12 If a Splitter is supplied as an option for the Service:
a) You acknowledge and agree, and will ensure that Your End User acknowledges and agrees that:
i. the title and risk of the Splitter equipment passes to You or Your End User immediately upon completion of the installation of the Splitter; and
ii. AVANSER is not responsible and nor it is liable for the installation or functionality (including any incorrect installation or malfunction) of the Splitter; and
iii. replacement of a Splitter will be Your or Your End User’s responsibility; and
b) You will seek and keep records of informed consent of Your End User when making a selection to either receive or not receive the Splitter option.
13.13 If the Attachment Circuit is delivered to You (or any of Your End Users) via Ethernet Bitstream, You acknowledge and agree that:
a) the Attachment Circuit speed for the Service represents the maximum potential data rate that can be downloaded and uploaded from that Service. The actual data rate or throughput experienced by You (or any of Your End Users) may vary depending on:
i. network utilisation and the number of users accessing the network at any one time;
ii. the nature and quality of the connection at the Site;
iii. Your (or Your End User’s) hardware or software; and
iv. websites You are (or Your End User is) visiting.
b) If the Attachment Circuit is delivered to You (or any of Your End Users) via Ethernet Bitstream, You warrant and must ensure that each time You submit a Transfer Request to AVANSER for a NBN-based Service (NBN Service Transfer Request) or a DSL-based Service (DSL Transfer Request):
i. You have a valid Customer Authority authorising the NBN Service Transfer (which is not more than 45 days old) or DSL Service Transfer (which is not more than 30 days old);
ii. You retain proper records of the Customer Authority:
• For a minimum of 2 years from the date the Customer Authority was signed; or
• If a dispute is still active at the expiry of the 2 years, until the dispute is resolved; or
• as required by legislation; or
• such longer period as may be required by AVANSER;
iii. You produce a copy of the Customer Authority within 2 Business Days of receiving a request from the Losing Service Provider (LSP) or AVANSER;
iv. You will need to select the relevant NBN Service Transfer Order options which currently include the following options:
• Service Transfer: Involves the transfer of an existing NBN-based service using the same port where the service is to be supplied to the same end user to whom the LSP had supplied the service to;
• Connect Outstanding Transfer: Involves the transfer of an existing NBN-based service where the service is to be supplied to an end user who is not the same end user that the LSP had supplied the service; or
• Transfer Reversal: Involves reversing a NBN Transfer as a result of an Invalid Transfer. You acknowledge and agree that:
• a request for a Transfer Reversal must be submitted within 5 Business Days of an Invalid Transfer occurring; and
• a Charge is payable for the processing of the Transfer Reversal.
v. Each time You submit a NBN Service Transfer Request or DSL Reversal Request to AVANSER:
• You have complied with Your obligations under the TCP Code and any other applicable legislation, guidelines or other industry code as amended from time to time; and
• You have the written consent of the service provider who had the Service after the Invalid Transfer
vi. You have used reasonable endeavours to ensure that the information in the NBN Service Transfer Request or DSL Service Transfer Request is correct;
vii. You have used reasonable endeavours to ensure that the processing of each NBN Service Transfer Request or DSL Transfer Request, at the time it is lodged, does not breach any party’s contractual or other rights;
viii. You have complied with Your obligations under the TCP Code and any other applicable legislation, guidelines or other industry code as amended from time to time in respect of each Transfer;
ix. AVANSER may investigate the correctness of the warranties, and if it does so, You must provide AVANSER with evidence of the correctness of the warranties; and
x. You acknowledge and agree that standard Installation Charges apply to a NBN Service Transfer or DSL Transfer Request.
c) AVANSER does not warrant that the maximum data rate will be achieved. The parties acknowledge and agree that if the maximum data rate is not achieved as a result of any of the matters referred to in clause 5.9(a) above, or any other matter beyond AVANSER’s control, this is not a service fault by AVANSER;
d) when placing an order for the supply of the Attachment Circuit that will be delivered by NBN Co Ethernet Bitstream infrastructure as part of a Type 2 (New) Connection (not a Type 1 (Migration) Connection), You must:
i. notify Us on the Order for Service of that status when placing that order for the supply of that Attachment Circuit; and
ii. warrant to Us that You have reasonable grounds to believe that the Attachment Circuit meets the requirements for that Attachment Circuit to be supplied as part of a Type 2 (New) Connection (not a Type 1 (Migration) Connection).
14. LIABILITY & INDEMNITY
14.1 You indemnify AVANSER, and will keep AVANSER fully indemnified, from and against any losses, damages, costs and/or expenses (including legal costs assessed on a solicitor client basis) which AVANSER may suffer or incur arising out of or in connection with an action or claim brought by You or a third party against AVANSER which relates to or arises out of Your (or any of Your End Users’) use of the Services including, without limitation, as a result of:
a) the transmission of any illegal, fraudulent or offensive material by You (or any of Your End Users);
b) any breach of this Agreement by You; or
c) any wilful, unlawful or negligent act or omission by You (or by any of Your End Users).
14.2 AVANSER does not warrant that the Services will be free of interruptions, delays, faults or errors. AVANSER will not be responsible for any loss and/or damage to Your business and/or Your End Users’ business that may result from any interruptions, delays, faults or errors in the supply of the Services.
14.3 All terms, conditions and/or warranties that may be implied into this Agreement, statutory and otherwise, relating to the provision of the Services by AVANSER are excluded to the fullest extent permitted by law.
14.4 AVANSER’s liability for breach of any term, condition or warranty, or under any remedy implied by law, which cannot be lawfully excluded, will be:
a) limited (if permitted by law), at AVANSER’s option, to the repair or re-supply of equipment or Services or the payment of the cost of having the equipment or Services re-supplied; and
b) reduced to the extent that such liability is caused by Your negligent acts and/or omissions and/or a breach by You of the terms of this Agreement.
14.5 AVANSER have no liability to You, any of Your End Users or to any other person, for:
a) the acts or omissions of any third party, including the suppliers which have been engaged by AVANSER for the purpose of supplying or maintaining a Service supplied to You under this Agreement;
b) faults or defects in Services which are caused by Your own conduct or misuse or the conduct or misuse of Your End Users;
c) faults or defects that arise in telecommunication services provided to You other than under this Agreement (even if they are connected with AVANSER’s consent to Services which AVANSER has supplied under this Agreement);
d) any loss of revenue or profits, loss of data, loss of bargain and damage to reputation or for any form of indirect or consequential loss, whether in respect of breach of contract, equity, negligence, intended conduct, tort or otherwise, arising out of, or in connection with, the provision of the Services or this Agreement;
e) faults or defects in the Services that arise due to equipment or cabling owned or leased by You or an End User or otherwise in Your control or Your End Users’ control; or
f) faults or defects in the Services that arise due to failure by You or any third party (other than a contractor or agent engaged by AVANSER) to appropriately maintain any equipment or cabling relevant to the supply of the Services.
15. CONFIDENTIAL INFORMATION
15.1 Subject to clause 15.3, each party must keep the other party’s Confidential Information (including the terms of this Agreement) confidential and will not allow any written or electronically recorded Confidential Information to be copied other than for the purposes of this Agreement.
15.2 Neither party will use any Confidential Information it acquires from the other party for any purpose other than exercising its rights and performing its obligations under this Agreement.
15.3 A party (the Discloser) may make a disclosure of the other party’s Confidential Information (including the terms of this Agreement), if the Discloser reasonably believes it necessary, to:
a) its suppliers of professional services (including, without limitation, legal and financial advisers, financiers and insurance carriers) if those persons undertake to keep such disclosed information confidential;
b) for credit purposes where the persons to whom such information is disclosed undertake to keep the disclosed information confidential;
c) any of its employees to whom it is necessary to disclose such information if that employee undertakes to keep the disclosed information confidential; or
d) comply with any applicable law or requirement of any governmental agency.
15.4 To assess Your application for services and to establish, and provide ongoing credit management of Your account, You consent to AVANSER disclosing to a credit reporting agency, personal information relating to You in our possession, including, but not limited to Confidential Information. Subject to AVANSER’s obligations under the Privacy Act 1988 (Cth) and the Telecommunications Act 1997 (Cth), AVANSER may also give this information to a credit reporting agency to obtain a credit report about You. We may disclose the following information relating to You even where this information may fall within the definition of Confidential Information:
a) Your name, ABN/ACN (if applicable) and address;
b) details of Your application for services and/or other services supplied to You;
c) credit limits on Your accounts;
d) the amount of any payments which are due;
e) where an overdue payment has been previously reported, advice that the payment is no longer overdue;
f) cheques or credit card payments which have been dishonoured;
g) information that, in AVANSER’s opinion, You have committed a serious credit infringement; and,
h) information that We have ceased to provide Services to You.
15.5 You agree that AVANSER may obtain information about You from any business or credit reporting agency which provides information about the commercial creditworthiness of persons for the purposes of assessing Your application for services and collecting any overdue amounts. In addition, You agree to provide AVANSER or any independent person nominated by AVANSER any information reasonably required by AVANSER to confirm Your creditworthiness within 10 Business Days of AVANSER’s request.
16.1 Any notice, consent, approval or other communication required or permitted under this Agreement (each a Notice) must:
a) be in writing;
b) absent proof of delivery to the contrary, be deemed to have been received at the following times:
i. if served personally, on the date of service;
ii. if sent by pre-paid registered mail, 3 Business Days after the date of posting; or, if sent by standard post, 5 Business Days after the date of posting; and
iii. if sent by email, on the first to occur of receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the relevant email address, and the time that the Notice is first opened or read by an employee or officer of the recipient,
but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or is later than 4pm (local time) it will be taken to have been duly given or made at 9am (local time) on the next Business Day in that place.
17.1 If any dispute or difference other than a Billing Dispute arises between the parties out of, or in connection with:
a) the Services; or
b) the performance of a party’s obligations under this Agreement;
the disputing party must give the other party written notice of such dispute within 14 days. The parties agree that they will make every reasonable effort to resolve the difference in a commercially reasonable and amicable way within 30 days of receipt of the notice of dispute by the non-disputing party under this clause 18.1.
17.2 If resolution cannot be reached under clause 18.1, a meeting will be held within 15 days of the end of the period referred to in clause 15(a), between the relevant managers of the parties with the view of agreeing a resolution to be implemented within an agreed timeframe (which is not to exceed 30 days).
17.3 If resolution cannot be reached under clause18.2, a meeting will be held within 15 days of the end of the period referred to in clause 15(b) between the Chief Executive Officer (or their delegate) of each party with the view of agreeing a resolution to be implemented within an agreed timeframe (which is not to exceed 30 days).
17.4 If the parties cannot resolve the dispute in accordance with clause 18.3, either party may refer the dispute to mediation by the Australian Commercial Disputes Centre (ACDC) for resolution in accordance with the Guidelines for Commercial Mediation of the ACDC.
17.5 Nothing in this clause 18 prevents a party from seeking interlocutory relief.
18.1 This Agreement does not constitute any party the agent of the other party or imply that the parties intend constituting a partnership, joint venture or other form of association in which any party may be liable for the acts or omissions of the other party. Neither party has authority to pledge the credit of the other party.
18.2 Any request in relation to the Service(s) or this Agreement originating from Your nominated representative or any of Your premises or domain name(s) is deemed to be authorised by You.
18.3 No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy under this Agreement preclude any other or further exercise of that or any other right, power or remedy.
18.4 AVANSER may have subcontractors or other agents meet any of our obligations under this Agreement but We will remain liable to You for satisfying those obligations.
18.5 AVANSER may assign any of our rights and obligations under this Agreement without Your consent.
18.6 You cannot assign any of Your rights and obligations under this Agreement without AVANSER’s prior written consent.
18.7 You shall not exercise any of Your rights or perform any of Your obligations under this Agreement through any person other than You and Your employees without AVANSER’s prior written consent. Irrespective of whether AVANSER has provided its consent, You shall remain responsible for the exercise of Your rights and the performance of Your obligations under this Agreement.
18.8 Each party shall take all steps, execute all documents and do everything reasonably required by the other party to give effect to any of the transactions contemplated by this Agreement.
18.9 Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement or affect the validity or enforceability of that provision in any other jurisdiction. If any provision or part thereof of this Agreement is made ineffective in any jurisdiction in accordance with this clause, then that provision shall be replaced, to the extent legally possible, with a legal, enforceable, and valid provision that is similar in tenor to the ineffective provision.
18.10 Except as expressly provided for in this Agreement, this Agreement may be amended only by another agreement executed by all parties.
18.11 Any provisions of this Agreement which in order to give effect to their meaning, or to protect the legitimate interests of either party, need to survive its termination will survive termination of this Agreement.
18.12 This Agreement contains the entire agreement between the parties with respect to its subject matter. This Agreement sets out the only conduct, warranties and representations relied on by the parties and supersedes all earlier conduct, warranties and representations by the parties with respect to its subject matter.
18.13 AVANSER may, without prior notice to You, set-off any amount owing by You (or any of Your Related Bodies Corporate) to AVANSER under or in respect of this Agreement and/or on any other account against any liability of AVANSER to You (or any of Your Related Bodies Corporate) whether under or in respect of this Agreement or on any other account. You are not, at any time, except as permitted by law, entitled to any right of set-off against AVANSER.
18.14 The parties must pay their own legal and related costs incurred in preparation of this Agreement.
18.15 This Agreement is governed by and takes effect and will be construed in accordance with the laws of New South Wales and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals there from.
18.16 The failure of AVANSER to exercise or enforce any right or provision of this TCS shall not constitute a waiver of such right or provision.
18.17 If any provision of this TCS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this TCS remain in full force and effect