BETWEEN
Yellow Billing Services Pty Ltd trading as Acenet Internet Services, having its’ registered office at Level 1 40 Ross Street, Newstead 4006 (the “Company”)
AND
The person specified in the Telephone Services Application as the Subscriber
WHEREAS
A. The Company also makes available the services described in Schedule A (the “Services”).
B. The Services are made available to the Subscriber wishing to subscribe to them subject to the terms and conditions set out below.
1. Definitions
“Agreement” means these terms and conditions and any accepted Application;
“Application” means the form of application to become a Subscriber to the Services submitted by the Subscriber to the Company;
“Commencement Date” means the date the Company allows the Subscriber access to the Services;
"Company" means Yellow Billing Services Pty Ltd trading as Acenet Internet Services and any of its Providers, or associated companies;
“Company’s Web Site” means the Internet site at the address http://www.acephone.net.au.
“Data” means any material stored in a Database including any Subscribers account information;
“Database” means the Account Databases made available to the Subscriber by the Company which comprise part of the System;
“Dealing” includes the following acts, namely to publish, sell, copy, reproduce, redistribute, adapt, publicly perform, transmit to the subscribers of a diffusion service, corrupt, distort, mutilate, modify or derogate from any part of the Data, whether in human or machine readable form;
“Email” means electronic messages sent from or to the Company;
“Equipment” means the Subscriber’s equipment used to access the System and use the Services including Software and Hardware;
“Password” means the account password as set out in the Application;
“Provider” means any supplier of Services, Software, Hardware, Data and/or Database to the Company;
“Services” means supply of telephone services provided by the Company to the Subscriber and each User;
“Subscription Period” means subject to clause 15, the term the Subscriber is permitted access to the Services as set out in the Application;
“System” means the Company’s equipment and programs used to provide telephone services to the Subscriber;
“User” means a person who accesses the System or uses the Services;
“User Charges” means the charges specified in the Company’s Web Site subject to alteration under the Agreement.
“Web Site” means the Information and Data stored on the Internet.
2. Term
This Agreement and access to the System and Services will commence on the Commencement Date and will continue for the Subscription Period.
3. Acceptance of Application
3.1 Upon acceptance by the Company of the Subscriber’s Application, the Company shall supply the Subscriber with a Password for Access to the subscribers account on the Company’s Web Site which shall be the same as the Password specified on the Application, unless the Company chooses to allocate a different Password for administrative or other reasons at the time of application or at a later date;
3.2 The Company reserves the right to refuse an application to be a Subscriber. If the Company does refuse an application it shall refund any and all moneys received by the Company in connection with the application.
3.3 The Subscriber acknowledges that the Company may provide information concerning the Subscriber (including, without limitation, the information provided in the Application to the Company and any information concerning the Subscriber’s use of the System, Services, Data or Databases) to third parties for marketing or other purposes.
3.4 The Subscriber acknowledges that by agreeing to the Subscriber Agreement, consent is given for the receiving of Acenet commercial electronic messages including but not limited to the Acenet newsletter.
3.5 The Subscriber acknowledges that a valid email address must be provided to the Company with the application for receiving of electronic accounts and notices. The Subscriber acknowledges that they must inform the Company immediately if that email address becomes invalid and must provide a new valid email address within 7 days.
3.6 If Internet services are provided as part of the Telephone service the Subscriber acknowledges that the Acenet Internet Subscriber agreement forms part of this agreement.
4. Special Conditions
The Company can issue special conditions to apply to access to or use of the Services. Any special conditions issued by the Company shall be published on the Company’s Web Site. Any special conditions that are inconsistent with these terms and conditions shall override these terms and conditions to the extent of the inconsistency.
5. Availability of the System
5.1 Subject to 5.2, the Company shall use all reasonable endeavours to ensure that the Services will, (subject to other terms of this Agreement) be available at all times during the Term of this Agreement.
5.2 Without limiting any other parts of clause 5, the Subscriber acknowledges that:
(a) the System or Services might not be available for access during any equipment or services malfunction or breakdown, electrical storm, electrical short circuit, power failure, telecommunication failure or fault, industrial dispute or other cause beyond the control of the Company, or during any period of shutdown, Database unavailability or inability of the System to provide access, whether or not as a result of a cause within the control of the Company; and
(b) the Databases, the System and/or the Services may be discontinued at any time by the Company without notice to the Subscriber if the Company’s license or authority to use a Database or provide the Service is withdrawn, restricted or altered in such a way that the Company considers it undesirable to continue to provide the Database or Services to Subscribers or any claim is made that the inclusion of information, data, program, code or material in a Database infringes the rights of a third party, or exposes the Company to liability to any third party or to liability for prosecution for an offence or liability to a statutory penalty or the Company is otherwise obliged to discontinue provision of the information.
5.4 No compensation or other amount of any kind shall be payable by the Company in respect of any loss of access or functionality referred to this clause 5.
6. Data and Services
6.1 The Company may:
(a) from time to time add to or vary the Data, System and / or Services without the consent of the Subscriber. The Company however will publish any such changes on the Company’s Web Site where appropriate.
(b) amend the terms and conditions of use, amend programs, information and facilities from time to time at its sole discretion even if that amendment results in a loss of functionality of the Services, a reduction in the Services or a reduction in the availability of Services.
The Subscriber must not do, nor permit, any User to do any act or thing in relation to Data which would infringe any party’s copyright or moral rights, nor modify, delete or corrupt the Data (except for deletion of any Email messages) or otherwise tamper with any Data, the System, Services or a Database.
7. Compliance with Laws and other Conditions of Use
7.1 The Subscriber acknowledges that use of the Data, Databases, System and Services may from time to time be subject to certain legal regulations, conditions (including any license conditions) and restrictions (“legal requirements”). The Subscriber shall ascertain and comply with these legal requirements including but not limited to those prescribed in the Crimes Act 1914 (Cth).
7.2 Without limiting clause 7.1, the Subscriber and each User shall not use the Services in a manner which is offensive, defamatory, abusive, obscene, menacing, threatening, harassing or illegal under any law at any place where transmissions are sent from or received.
8. Conditions of Use of Subscriber’s Equipment for Access to the System
8.1 The Company may at any time require the Subscriber to disconnect its Equipment or any part or parts of its Equipment from accessing and using the System or Services if, in the opinion of the Company, that Equipment is or has been the cause or is likely to be the cause of failures, interruptions, errors or defects in the System or Services.
8.2 The Subscriber must not without the Company’s consent:
(a) make any additions, deletions, modifications, adjustments or alterations to any Data , the System or a Database;
(b) attempt to rectify or permit any persons other than the Company or its agent to rectify any fault or inaccuracy in any Data, the System or a Database;
(c) otherwise tamper with any Data , the System or a Database; or
(d) use the Services in a manner which is inconsistent with this Agreement.
8.3 The Subscriber shall be responsible for all maintenance of their Equipment including Software.
9. Subscription Charges
9.1 The Subscriber shall pay to the Company the User Charges and Fees as specified on the Company’s Web Site. The Company may vary these charges from time to time by giving notice on the Company’s Web Site.
9.2 The Subscriber shall pay all charges incurred by the use of the Service irrespective of whether that use is authorised or not.
9.3 The Subscriber shall pay interest to the Company on any late payments calculated on a daily basis until payment at a rate of 9% per annum.
9.4 There shall be no reduction or refund of the amount payable under clause 9.1 or any part thereof if this Agreement terminates under clause 16.
9.5 The Company reserves the right to adjust accounts by an appropriate amount for re-imbursement of excess or additional charges incurred by the User in the use of the Subscribers account.
9.6 Subscribers are responsible for any Federal or State taxes including Goods and Services Tax.
10. Suspension of services
Should the Subscribers account expire or fall into arrears, the Company reserves the right to suspend, discontinue or withdraw services in accordance with the Company policies stated on the Companies Web Site.
11. Disclaimer of Accuracy
11.1 The Subscriber and each User acknowledges that much of the information, Data, programs and material accessed from a Company Database is not generated or checked by the Company and that the Company therefore makes no representation concerning the completeness, truth or accuracy thereof or its suitability for any purpose contemplated by the Subscriber.
12. Liability
12.1 Subject to clause 13.2, the Company shall not be liable in contract, tort (including negligence) or otherwise for any liability, direct, indirect or consequential loss or damage or lost profits, revenues or expectations sustained by the Subscriber or User directly or indirectly making use of the Services including but not limited to:
(a) any loss or damage resulting as a consequence of any defects, delays, interruptions or failures in the System or Services;
(b) any act or omission of the Company, or
(c) inaccuracies or errors in or omissions from any Data or a Database.
12.2 Any liability of the Company of the kind referred to in clause 13.1 which, by law, is unable to be excluded is limited to the minimum sum permitted by law. Where the Company’s liability is in respect of a breach of a condition or warranty to which section 68A(1) of the Trade Practices Act 1975 (Cth) applies, the Company’s liability shall be limited to the amounts described in that section.
12.3 The Subscriber and each User represent to the Company that the Subscriber is not relying on the System or Services having any particular performance characteristics, response times or availability.
13. Indemnity
The Subscriber undertakes to keep the Company indemnified at all times against all actions, proceedings, costs, claims, demands, liabilities and expenses whatsoever including legal costs and expenses on a full indemnity basis and other fees and disbursements sustained, incurred or paid by the Company directly or indirectly (whether or not as a result of the Company’s negligence in whole or in part) in respect of:
(a) the access to and/or use by the Subscriber or a User of any Data, a Database, the System or the Services;
(b) any breach by the Subscriber or a User of any provision of this Agreement or any schedule; or
(c) any omission of failure to perform by the Subscriber or a User under the terms of this Agreement.
14. Termination
14.1 Notwithstanding any other provisions of this Agreement, the Company in addition to any rights it may have under law or statute, may forthwith terminate this Agreement by written notice to the Subscriber if any of the following events occur:
(a) if the Subscriber or a User is more than 24 hours in default of payment of any sum due to the company under this agreement;
(b) if the Subscriber or a User commits any other breach of the terms or conditions of this Agreement including the terms, conditions and provisions of any schedule and the Subscriber fails to remedy such breach within one (1) day after receiving written notice from the Company requiring it so to do;
(c) if the Company in its sole discretion determines the Subscriber or any user has used the Database, System or Services in an unacceptable manner; or
(d) if the Company in its sole discretion determines the Subscriber or any user has been offensive to any of the Company’s staff or behaved in an unacceptable manner; or
(e) if the Subscriber becomes, threatens or resolves to become subject to any form of insolvency administration, ceases or threatens to cease conducting business in the normal manner, being a partnership, is dissolved or being a natural person dies.
14.2 Access to the Services are for a minimum one(1) month contract period. After one(1) month termination of these services by the Subscriber must be given in writing with at least 7 days notice.
14.3 Termination of this Agreement shall be without prejudice to any accrued rights of either party and shall not affect obligations which are expressed not to be affected by expiry or termination hereof.
15. Force Majeure
If the Company is unable wholly or in part to perform any obligation under this agreement as a result of a Force Majeure event, that obligation is suspended so far as the Company’s ability to perform it is affected by that Force Majeure event.
16. Waiver
The failure of any party to this Agreement at any time to insist on performance of any provision of this Agreement is not a waiver of its right at any later time to insist on performance of that or any other provision of this Agreement
17. Severability
Part or all of any clause of this Agreement that is illegal or unenforceable and does not go to the essence of this Agreement will be severed from this Agreement and will not affect the continued operation of the remaining provisions of this Agreement.
18. Privacy
The Company adopts and is bound by the National Privacy Principles set out in Schedule 3 of the Privacy Amendment (Private Sector) Act 2000. A copy of the Company’s Privacy Policy is available from the Company’s Web Site. The Subscriber acknowledges that by dealing with the Company in accordance with these terms and conditions the Subscriber consents to the Company using the Subscriber’s personal information of or incidental to operating the Company’s business. The Subscriber acknowledges all information obtained in the provision of services including but not limited to CSID (Call Sender ID) may be stored, retrieved and used by the Company, in the operation of the Company’s business
19. Miscellaneous
19.1 Any notice or other communication in connection with this Agreement is taken to have been duly given when made in writing, signed by a party or a representative of either party and delivered or sent by post, electronic mail or facsimile to the party to which such notice or communication is intended to be given, at the addresses set out on the Form or to such other address or facsimile number as may from time to time be notified in writing by one party to the others for the purposes of this clause. A notice sent to a Subscriber by electronic mail or facsimile or published on the Company’s Web Site shall be deemed to be in writing.
19.2 The Subscriber shall not, without the prior written consent of the Company, assign or transfer this Agreement or any of its rights under this Agreement to any other party. The Company may assign all or any of its rights to any other party but shall notify the Subscriber of the assignment.
19.3 The Subscriber must be a legal person. Any minor seeking access must do so as a User of a Subscriber’s account. Supervision of such a User shall be the responsibility of a Parent or Guardian of the minor.
19.4 Failure or neglect by the Company to enforce at any time any of the provisions of this Agreement shall not be construed nor shall be deemed to be a waiver of the Company’s rights hereunder nor in any way affect the validity of any part of this Agreement nor prejudice the Company’s rights to take subsequent action.
19.5 This Agreement shall be governed and construed in all respects in accordance with the law of Queensland. The parties submit to the non-exclusive jurisdiction of the courts of Queensland and the Federal Courts of Australia.
SCHEDULE A
Telephone Pre-Selection
Provision of national and International telephone Services as detailed on the Company's web site at http://www.acephone.net.au/about/policy/companypolicy.asp