Broadband Terms & Conditions

WebCentral Pty Ltd ACN 084 429 318
Broadband Terms and Conditions (Effective 9 April 2008)

These are the standard terms and conditions on which WebCentral Pty Ltd ("we" or "us") will supply the WebCentral Broadband services (the "Services"). You acknowledge that we rely on our wholesale supplier of broadband services ("Wholesale Supplier") and other providers of telecommunications services or equipment ("Other Suppliers") to supply the Services. We may also provide equipment including an ADSL router or modem and filter ("Equipment"). These terms apply to you as a user of the Service ("Customer" or "you"). Please read these terms and conditions carefully. It is a condition of your use of the Service that you comply with these terms and conditions.

1. Terms and Amendment Procedure

1.1 These are the terms upon which we agree to provide the Service to the Customer. In addition to these terms, you must also comply with:

(a) Any conditions contained in the notes to the product description for products or services you acquire;

(b) Our Acceptable Use Policy which is located at www.webcentral.com.au/AUP/; and

(c) Our Privacy Policy which is located at www.webcentral.com.au/privacy/.

1.2 This agreement commences on the date listed in the Mission Control panel when your order for Services was accepted by us and, subject to clause 2.2, continues for a minimum of twelve months from that date ("Initial Term") after which it will continue from month to month until terminated.

1.3 During the Initial Term:

(a) You may upgrade to a higher line speed without incurring a speed change fee.

(b) You may change from a Business plan to a Prosumer plan at the same or higher line speed without incurring a data change fee.

1.4 After the Initial Term there will be no charge if you change your plan except if you decrease your line speed and:

(a) Change from a Prosumer plan to a Business plan; or

(b) Your plan (Prosumer or Business) remains unchanged.

2. The Service

2.1 Whilst we will use our best endeavours to supply the Services to you, the availability of the Services is dependent upon a variety of matters including capacity of the telephone line linked to the premises where the Services will be supplied, the geographic location, technical capability of your premises and provision of the Services from our Wholesale Supplier.

2.2 This agreement will terminate without further notice if we notify you that we are unable to supply the Services to you for any reason, including where it is determined during the installation process that your premises do not qualify under clause 2.1. If this agreement has been terminated other than for your breach, we will either refund any unexpired prepaid fees or, if you agree, apply those fees as a credit for use on another service. We have no liability to you for inability to supply the Services.

3. Installation and Provision of Services

3.1 If you require us to carry out a professional installation, you will provide us with all necessary access to your premises and all necessary assistance to carry out the installation work. We are not liable if any delay in us carrying out the installation work in the timeframe agreed by us in writing is due to either your or another party's actions or omissions or the information you have provided to us in inaccurate.

3.2 Installation will be scheduled directly with you and reconfirmed on the day of the installation supply. If you are not available at time of appointment after it has been re-confirmed on day of installation, or if your computer is not capable of being used for ADSL connection, you agree to pay for the cost of the visit of the installer being at the rate of half the cost of a normal installation service.

3.3 Installation that falls outside the standard service may attract additional charges. Additional installation work will be a matter between you and the installer.

3.4 You acknowledge that, in some circumstances, installation of the Services may temporarily disrupt standard telephone services and that installation of the Services on a telephone line will cancel all pre-existing services. You may not be able to reinstate pre-existing telephone numbers on lines installed with the Services if you terminate the Services.

4. Equipment

4.1 Equipment provided by WebCentral:

(a) We may provide you with Equipment as part of a self-install or as part of a professional install. Terms of product warranty will accompany the Equipment.

(b) We will make every effort to deliver the self install Equipment to you by the date specified in our confirmation email. We cannot be liable for any loss you suffer if we fail to do so. On delivery, you will check that the self install Equipment box is unopened before signing for the package.

(c) Where you advise us that a self install Equipment is faulty, we will attempt to determine the fault over the phone or send a technical support agent to your premises at the earliest available time. Where we determine that the component is not defective, you will be liable for the service call or the cost of any equipment sent to you as a replacement.

(d) Risk of items of Equipment supplied by us will pass to you at the time that Equipment is delivered to you, and:

(i) you will ensure that the Equipment is not damaged and remains in good condition; and

(ii) you will not interfere or tamper with Equipment in any way.

(e) Title to the Equipment will pass to you upon receipt by us of the full purchase price. Until then title remains with WebCentral and we may recover the Equipment from you without notice if you are in default under these terms and conditions and if the default is in relation to payment, you do not rectify that default after 7 days prior notice from us to do so.

(f) Equipment supplied by us must be left at its factory default settings. Our Equipment technical support services will not apply if you have modified the Equipment settings in any way.

4.2 Customer Equipment:

(a) If you supply your own Equipment, you acknowledge that you are solely responsible for selecting, supplying, installing, configuring and maintaining at your own expense the Equipment.

(b) We will not provide any Equipment support services if you supply your own Equipment.

5. Software

5.1 If you purchase Equipment from us which includes software for use in conjunction with these Services, your use of the software must be in accordance with the licence terms of that software.

5.2 If you use software other than that supplied by us in conjunction with these Services, we do not take any responsibility for incompatibility.

6. Your use of the Service

6.1 You agree to obtain, install and maintain Equipment approved by the Australian Communications Authority (ACA) as is necessary to access the Services.

6.2 You acknowledge that we may, from time to time, issue you with directives in relation to your operation of the Services and you agree to comply with those directives.

6.3 You are responsible for and must pay the cost of all telecommunications and internet access charges incurred when accessing or using the Service, including any connection charges or charges by any content provider.

6.4 You warrant that you are the same end user acquiring a standard telephone service on the line to which your application relates or that you have obtained authority of the legal lessee of the telephone service.

6.5 You acknowledge that there may be a minor disruption to your or legal lessee's telephone service during ADSL provisioning.

6.6 Your Service plan permits you to download a specified volume of data per month at no additional charge. Data downloaded in excess of the relevant volume per month will incur an additional charge per megabyte applicable to your Service plan as set out in the Product details.

6.7 You acknowledge that we may intercept the Services or the data being transmitted over the Services or suspend the Services if you fail to comply with these terms or applicable laws or to enable us to comply with our obligations at law. We may investigate any misuse of the Services by you, in conjunction with relevant law enforcement agencies. If your use of the Services results in loss to other users or us, we may require you to pay compensation.

7. Maintenance and Technical Support

7.1 If you experience a problem with the Service you should report it to our Technical Support team. We will use reasonable efforts to rectify the problem as soon as possible.

7.2 If you report a fault and we find there is no fault or the fault was not caused by us, we may charge you for any work we have done to try to find the fault or repair it.

7.3 If we supply the Equipment to you, we agree to service and maintain that Equipment to keep it free from defects in workmanship and materials, under normal use and service during the term of this agreement provided you have:

(a) maintained the Equipment in accordance with the instructions provided to you;

(b) not modified or damaged the Equipment in any way; and

(c) used the Equipment only in conjunction with the Services.

8. Payment

8.1 You must pay for the Services as notified to you by us in accordance with the prices in force for the Services from time to time. All accounts for Services are payable within 14 days of invoice.

8.2 You are responsible for payment of any amounts incurred by you or any users as a result of any use of your password (whether authorised or not) in accordance with the billing option selected.

8.3 Prices published on our web site are inclusive of any government taxes or charges unless otherwise noted.

8.4 You will generally be billed in advance for periodic charges, connection, configuration and service fees (where applicable) and in arrears for usage charges including excess download charges, although this may vary in certain cases. We will endeavour to bill you within the next normal billing period for charges billed in arrears, but we reserve the right to bill you for those charges in later billing periods.

8.5 Our charges to you may pass on any changes another Supplier charges us (including increases and special or one-off charges) from time to time without notice.

9. Suspension or Termination of Services

9.1 We may from time to time be required to suspend the Services:

(a) for technical failures, modifications or maintenance; or

(b) if you do, or allow to be done, anything which in our opinion may have the effect of jeopardising the operations of the Services or the network or to protect against fraudulent or illegal use or other similar reasons;

Notwithstanding any suspension under this clause, you will remain liable for all charges due throughout the period of suspension and acknowledge that you may be required to pay a subsequent reconnection fee where you are at fault.

9.2 Either party may terminate this agreement on at least 30 days prior written notice, which notice must not expire before the end of the Initial Term. If you wish to terminate this agreement before the end of the Initial Term you may do so by giving us at least 14 days prior written notice to that effect ("Termination Notice") and paying to us an amount equal to 90% of the total amount of the Services Fees that would have been payable had the agreement continued until the end of the Initial Term ("Termination Payment"), less amounts paid by you up until the termination date. Your termination notice will take effect and the Termination Payment will be calculated from the date your Termination Notice expires.

9.3 We may terminate this agreement immediately by notice to you if:

(a) a supplier ceases providing services to us that are required to provide the Services under this agreement;

(b) you have breached this Agreement;

(c) a liquidator or receiver or receiver and manager or any other administrator of your business or assets is appointed or if you enter into any composition with your creditors; or

(d) you change your address or billing contact details without notifying us.

10. Limitation of Liability

10.1 The performance of some Services may be affected by your levels of use, the levels of use of other users and of facilities related to providing the Service. Accordingly, we do not warrant that Services will be free of interference, blockages, delays, faults, errors or deactivation.

10.2 Except as expressly provided to the contrary in this agreement, all warranties whether express, implied, statutory or otherwise, relating in any way to the subject matter of this agreement, are excluded. Where any statute implies any term into this agreement, and that statute avoids or prohibits provisions in a contract excluding or modifying the application of or liability under such a term, then the term will be taken to be included in this agreement. However, our liability for any breach of the term will, if permitted by that statute, be limited, at our option, to the resupply of the services again; or payment of the cost of having the services supplied again.

10.3 Except as provided under clause 10.2, none of WebCentral Pty Ltd its subsidiaries and related bodies, officers, directors, employees, partners or suppliers will be liable to you or any third party for:

(a) Any special, punitive, incidental, indirect or consequential damages of any kind;

(b) Any damages whatsoever, including, without limitation, those resulting from:

(i) Loss of use, data or profits, on any theory of liability, arising out of or in connection with the use of or the inability to use the Services;

(ii) The statements or actions of any employee or agent of the WebCentral group of companies;

(iii) Any unauthorised access to or alteration of your transmissions or data;

(iv) Any information that is sent or received or not sent or received;

(v) Any failure to store or loss of data, files or other content;

(vi) Your fraudulent, negligent or otherwise unlawful behaviour;

(vii) Information, data or other material provided to us by you or on your behalf; or

(viii) Any Services that are delayed or interrupted.

10.4 You warrant that:

(a) at the time of entering into this agreement you are not relying on any representation made by us which has not been stated expressly in this agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;

(b) you will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by you onto or downloaded by you via the Services does not contain any computer virus and will not in any way, corrupt the data or systems of any person; and

(c) you will keep secure any passwords provided by us.

10.5 You accept responsibility for all information and material you issue over any Service, and indemnify us and hold us harmless against any liability in relation thereto. In particular you undertake that you shall not publish or issue any information which is illegal or defamatory. You also acknowledge that we do not vet or approve any information or material available through the Service. We do not accept any liability for any loss, claim or damages arising from or relating to information and material available through the Service, to the full extent permitted by law. You access and use such information and material at your own risk.

10.6 Except as provided in clause 10.2, we are not liable to you or any other person for:

(a) cost, loss or liability (including loss of profit or other consequential damage) arising from our supply or failure or delay in supplying the Service;

(b) the content, context or confidentiality of any communications made using the Service;

(c) loss or damage caused by third party software applications forming part of the Service.

10.7 You indemnify us against all actions, claims, suits, demands, liabilities, losses, costs and expenses, arising out of or in any way connected with your use of the Service.

11. Privacy

11.1 We may need to pass personal information about you between our subcontractors or suppliers to fulfill our obligations under this agreement and you agree to that disclosure.

12. Miscellaneous

12.1 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by the parties.

12.2 The law in force in Queensland governs this agreement and the transactions contemplated by this agreement.

12.3 If a notice is required to be given under this agreement, either party may do so by using one of the following methods:

(a) By sending an email containing the notice to, in the case of WebCentral as recipient, the email address sales@webcentral.com.au, and in the case of you as recipient, the email address for the authorised contact person for the Service as shown in Mission Control.

(b) By sending the notice by facsimile to WebCentral on fax number 1800 640 098 (Australian based customers only), or to you on the fax number for the authorised contact person for the Service as shown in Mission Control.

(c) By sending the notice by pre paid post to WebCentral at PO Box 930 Fortitude Valley QLD 4006 Australia, or to you at the postal address of the authorised contact person for the Service as shown in Mission Control.

12.4 You may not resell Services or assign your rights and obligations under this agreement without our prior written consent.

13. Service Levels

13.1 Network Availability is defined as the end-to-end connectivity of the Broadband network. It does not include availability of services or applications such as email, web hosting, and the ability to browse the web.

13.2 We undertake that Network Availability of the Service will be at least 99% measured according to monthly averages, generated for each full calendar month the Services are provided to you. The network is deemed unavailable only during periods of complete failure.

13.3 The calculation of Network Availability excludes downtime resulting from:

(a) damage to the Customer's copper telephone line;

(b) scheduled maintenance;

(c) failure or malfunction in relation to equipment, any computer software or power supply at the premises of the Customer;

(d) failure or malfunction outside WebCentral's or its Wholesale Supplier's network;

(e) an act of God, industrial dispute, war or the occurrence of any other event beyond our reasonable control not due to our fault or negligence, which was not reasonably foreseeable, and which we could not have prevented by the exercise of reasonable diligence;

(f) a requirement, direction, or any other order, issued by a government, statutory or other relevant authority with jurisdiction over the Services; and

(g) unauthorised or illegal access by any party to any part of the system providing the Services, including hacking, cracking, virus dissemination and denial of service attacks.

13.4 Remedy for performance below 99% network availability in a month is via a percentage credit (Service Level Rebate) of that month's fees payable by you, as set out below:

13.5 In order to be eligible for the Service Level Rebate, you must submit a request by logging a job via Mission Control or calling the Sales & Service team. The request must be made within one month of the end of the calendar month in which the breach or breaches giving rise to the Service Level Rebate request occurred. We will deduct the Service Level Rebate from the next invoice following the end of the month in which the Service Level Rebate request is received and approved by us.

13.6 Customers in default in payment of Service Fees are not entitled to claim Service Level Rebates.