You means the person so named on the Service Applications.
We and Us means Clarenston Pty. Ltd. A.B.N. 99 003 414 748 trading as Preferred Internet Provider.
CPE Equipment means the equipment we provide to you as part of the ADSL Service.
Facility has the meaning given by the Telecommunications Act 1997 and also includes any line, equipment, mast, antenna, tunnel, hole, pit or pole used in connection with the ADSL Service;
ADSL Service means a service of the type ordered on the Service Application and includes all functions available using the service (including but not limited Electronic Mail, File Transfer, World Wide Web), IP addresses and any other services we provide to you which are related to the ADSL Service but are not subject to a separate executed Service Agreement.
Premises means the premises at which the ADSL Service is connected.
Pricing Schedule means the prices listed on the PIP ADSL Pricing Schedule (available on request) as at the date of your Application.
Service Application means the form published by us for the purpose of ordering an ADSL Service.
Supplier means Telstra Corporation Ltd and other third parties involved in the provision of the ADSL Service.
This Agreement constitutes the full and entire understanding and agreement between us (the Provider) and you (the Customer) with regard to the supply of the ADSL Service.
Upon acceptance of a Service Application we will take reasonable steps to provide you with the ADSL Service. You acknowledge that we do not guarantee that the ADSL Service is available at the premises nominated by you: In such an event, both parties will be released from their obligations under this Agreement and we shall have no liability to you.
You acknowledge that connection of the ADSL Service may be delayed and/or your telephone service may be temporarily disrupted. You agree that neither we, nor our suppliers, are liable for any disruption or delay associated with connection.
4.) Our Responsibilities
We will use reasonable measures to make the ADSL service available to you 24 hours a day, 7 days a week, however it may be unavailable at times, due to factors including but not limited to system maintenance, peak congestion, equipment or line failure. You acknowledge that we do not guarantee the speed, performance or quality of the ADSL Service.
We will provide a fault reporting service, accessible during our business hours (as
supervision. You are responsible for all use of the ADSL Service including use that is not authorised by you.
You must not use the ADSL Service
(i) for any illegal activity,
(ii) for the transmission of unsolicited e-mail or spam,
(iii) to abuse, harass or annoy any person,
(iv) for any commercial purpose,
(v) to host a commercial server,
(vi) for any activity that may cause damage or loss to, or compromise the security of , the Provider or Supplier, or the equipment or service of the Provider or Supplier, or
(vii) for any activity that exposes the Customer, the Provider or Supplier to civil liability.
10.) Limitation of Liability
You use the ADSL Service at your own risk. Furthermore, any data stored by or for you on our equipment is stored at your risk.
To the full extent permitted by law, and except as expressly provided by this Agreement, all terms, conditions, warranties, undertakings or representations whether express, implied, statutory or otherwise are excluded.
Where an Act of Parliament implies any term in this Agreement, and that Act of Parliament voids or prohibits provisions under a contract which exclude or modify the operation of such term, the term is deemed to be included in this agreement.
You undertake not to make any claim whatsoever against us, our suppliers, employees, contractors or assignees for loss (including but not limited to economic and consequential loss), damage or expense relating to or arising from this Agreement or the use or attempted use of the ADSL Service (in contract, tort [including negligence] or otherwise).
Without prejudice to the above clause, and if permitted by law, our total liability to you for loss or damage of any kind due to our negligence, breach of contract or breach of any law arising out of or in any way related to this Agreement is limited to, at our discretion,
(i) for the breach relates to services, the resupply of the service, or payment of the reasonable cost to the customer of procuring the services from another supplier; or
(ii) if the breach relates to goods, replacement or repair of the goods or equivalent goods.
The exclusion referred to in section (10) apply to any action giving rise to an obligation, duty or liability even if the action was not authorised, or not capable of being authorised, by you.
You hereby indemnify us against all liability, costs, loss or damage, suffered or incurred by us, our Supplier, employees, contractors and assignees arising from your breach of this Agreement or of our Acceptable Use Policy.
modified from time to time). Unless instructed by us, you may only contact us, not our supplier, for faults related to the ADSL Service. Upon your report of a fault we will take reasonable steps to remotely identify the cause and advise you of the action required. You acknowledge that faults related to the provision of the ADSL Service, may be outside of our control, and any restoration targets we provide are subject to the performance of third parties, for whom we accept no liability.
We may assign any of our rights under this Agreement without your prior written consent. We must notify you if we exercise this power.
You agree to pay charges for the ADSL Service in accordance with our Pricing Schedule or as amended. Charges shall commence on the earlier of:
(i) the date on which we notify you that the service is connected, and
(ii) the date that you commence using the ADSL Service.
You agree to pay charges by cheque or credit card, or as agreed with us in writing. If payment is by credit card, you permit us to debit your credit card in accordance with our Pricing Schedule or as altered from time to time.
We reserve the right to alter charges from time to time by giving at least 28 days notice of such alterations. Such notice may be by post, facsimile, or electronic mail. If the alteration to charges represents an increase in the cost of the ADSL Service, you may terminate this Agreement without paying the Early Termination Fee on condition that we receive your termination notice by facsimile or post within 14 days of our original notification to you.
If a GST is imposed on any supply made under or in connection with this Agreement (a taxable supply) the party obliged to pay for the taxable supply will pay additional consideration of an amount equal to the GST payable on or for the taxable supply.
If we do not receive your payment within 14 days of issuing an invoice, we may charge a late fee and/or block your ADSL Service until full payment is received. An unblocking charge may be levied. Charges will continue to accrue on services which are blocked.
We are allowed to charge interest on all overdue amounts at the Westpac business overdraft rate, calculated daily and compounding monthly. Further, you must pay all costs reasonably incurred by us in recovery of overdue charges.
6.) Usage Measurement
We will measure the data transferred through the ADSL Service (in both directions) and this measurement will be used to calculate your usage. Usage will be measured in megabytes (one megabyte equals 1,000,000 bytes). You agree to pay for any extra usage in accordance with our Pricing Schedule. Unused data does not accrue between months. If we offer a Peak
12.) Acceptable Use Policy
You agree that the ADSL Service may be used only in accordance with our Acceptable Use Policy (AUP) which is published on our Website (http://www.pip.com.au) and available from us on request. The Acceptable Use Policy, or as modified from time to time, forms part of this Agreement.
If you breach the terms of our AUP we may block your ADSL Service for
(i) up to 7 days, or
(ii) until you provide a written undertaking to abide by our AUP. If you breach the AUP on 2 or more occasions we may terminate this Agreement without notice to you.
We may conduct a credit review on you at any time. We may seek information from you, or a third party such as a credit agency, to assist in our credit view. You agree to cooperate by providing to us information that we reasonably request. We may require you to provide financial security if, in our opinion, we deem it necessary to secure our financial exposure to you.
You authorise us to disclose information about you to other credit providers or obtain and use information from other credit providers for the purposes of assessing your application for the ADSL Service, your ongoing credit worthiness or the status of any account held by you with us or with any other credit provider.
You agree to provide us with a valid credit card in order for us to charge you in accordance with this Agreement. You agree to advise of new card details if your card destroyed, cancelled or expires.
14.) Force Majeur
A force majeur is an event or circumstances beyond reasonable control of any part, except an inability to pay money when due.
The parties are not responsible for any delay in performing or failure to perform any obligation under this Agreement, other than an obligation to pay money, as a result of force majeur.
15.) Early Termination Fee
Disconnection Fee of $50.00 if cancelled within the first 6 months.
Subject to the provisions of this section, the Agreement shall be ongoing until it is terminated by either party by giving one months written notice by post or facsimile.
If you terminate this Agreement before the expiry of the initial contract term, or if we terminate following your breach of this Agreement, you must pay an Early Termination Fee (ETF) as described in section 15.
and Off-Peak rate to you, a transfer may be measured as Off-Peak only if it begins and finishes during the period we define as Off-Peak.
7.) Provision of ADSL Service
You agree to acquire a telephone service, in your own name, which is compatible with the ADSL Service for the duration of this Agreement. All charges (included rental and call costs) associated with the telephone service are your responsibility.
You acknowledge that we will charge a reconnection fee if the telephone service is relocated, or the lessor of the telephone service is disconnected and reconnected for any reason.
We reserve the right to change the Supplier of the ADSL Service from time to time. You agree to provide reasonable assistance in order to effect a change of Supplier.
You are responsible for maintaining the security of your computer and any devices accessible using the ADSL Service.
You agree to install and maintain Anti-Virus software and to ensure any passwords used are secure and not easily guessed.
9.) Your Responsibilities
You must not interfere with the normal operation of the ADSL Service or any Facility or make either unsafe. You must not connect any device to the ADSL Service that is not approved by us and does not comply with any applicable requirements of the Australian Communications Authority (ACA).
You agree to provide us, our Supplier and nominees with safe, sufficient and timely access to the Premises:
a. to inspect, test or modify any Facility or CPE Equipment which may be causing interference or danger;
b. to install, maintain or repair the ADSL Service, a Facility or CPE Equipment; and
c. at the expiration or termination of this Agreement, to remove the ADSL Service, CPE Equipment and/or Facility.
If you do not own, control or have access to the Premises you must:
a. procure for us, our Supplier and nominees all such access to the Premises as may be required by the preceding paragraph; and
b. indemnify us, our supplier and nominees against a claim by the owner or occupier of the Premises, or any other person, in relation to the entry of us, our suppliers or nominees onto those premises.
You agree not to assign or otherwise transfer this Agreement or your rights under it, delegate your obligation, or resell the ADSL Service.
You must not disclose your password to any person, or allow a third party to use the ADSL Service without direct and ongoing
We may terminate this Agreement immediately by written notice, with no liability on our part, if:
(a) our arrangements with a Supplier upon whom delivery of the ADSL Service depends are terminated, or if the supplier fails to comply with its obligations under such arrangements, so as to prevent or delay us from complying with our obligation to provide the ADSL Service to you (ETF is not payable);
(b) you (or if you are a company, one of your directors), enters into bankruptcy, liquidation or any other form of insolvency, administration, management or receivership (ETF is payable).
(c) You breach our Acceptable Use Policy on more than 2 occasions (ETF is payable).
17.) IP Addresses
All IP (Internet Protocol) addresses provided by the Provider are non-portable and must be returned upon termination of this Agreement.
We reserve the right to alter the terms of this Agreement by giving at least 14 days notice of such alterations. In the event that we exercise this right, you may terminate this Agreement without paying the Early Termination Fee on condition that we receive your termination notice by fax, e-mail or post within 14 days of our original notification to you.
All notices shall be in writing and shall be sent by hand delivery, post or facsimile to the parties hereto at their respective addresses. Notices by e-mail are only valid from the Provider to Customer, not vice versa. A notice need not be signed if it states by whose authority it is sent.
The Customers street address, e-mail address and fax numbers shall be those listed on the Service Applications until further notice. The Customer undertakes to notify the Provider at least 7 days prior to any change of street address.
The Providers details for service of notices are as follows, unless notified otherwise:
By facsimile: (02) 9488-7761
By post: ADSL Accounts Manager
Preferred Internet Provider
P.O. Box 788 Pymble NSW 2073
If a provision of this agreement is void, illegal or unenforceable, it may be severed without affecting the validity, legality or enforceability of the other provisions of this agreement.