Capitalised words used in these General Terms have the meanings set out in clause 20.1. These General Terms must be interpreted in accordance with clause 20.2.
1. OUR AGREEMENT WITH YOU
What is our Agreement?
1.1 This agreement (Agreement) is between you and the Activenet Entity that supplies the Services to you. Our Agreement is our standard form of agreement setting out the terms and conditions on which we supply our services and products to you. You and we must comply with our Agreement.
1.2 The terms of our Agreement with you for the provision of the Services are contained in:
(a) each Application you make to us for the Services;;
(b) Service Descriptions for each Service;
(c) these General Terms;
(d) our Pricing Schedule;
(e) our Billing Policy;
(f) any applicable Warranty Information Statement; and
(g) our Acceptable Use Policy.
If there is any inconsistency between any of the terms of our Agreement, the order of precedence will be as listed above, except that clauses 14 and 15 of the General Terms always prevail over all other terms in our Agreement.
Changes to our CRA
1.3 In this fast moving industry, we may need to change the Agreement from time to time. This may be done without your agreement.
Subject to clause 1.6, if we make any change which will be detrimental to you, we will notify you at least 30 days before the proposed change takes effect by:
(a) mail (to the last address that you have given to us);
(b) email (to the last email address that you have given to us and provided you have agreed for us to tell you about changes to our Agreement by email); and/or
(c) a message on your next bill.
We will also provide notice of the change on our Website.
1.4 Subject to clause 1.6, if we make any change to our Agreement that is likely to have a detrimental impact on you that is not minor, you may cancel the affected Services by giving notice to us within 42 days after the date we give you notice under clause 1.3. You will not incur any Break Fee or other charges as a result of a cancellation in accordance with this clause 1.4, except for:
(a) usage based charges or other variable charges incurred up to the date of cancellation; and
(b) installation fees and costs of equipment we have provided to you that you have not paid for (as long as the equipment can be used in connection with services supplied by another provider).
1.5 If you give a cancellation notice to us within the notice period required by clause 1.4, the proposed change will not apply to you. We will issue a corrected invoice or adjustment note as appropriate and, if you have overpaid as a result of the change to our Agreement, credit your account with the overpayment or, if you have cancelled your Service with us, refund the overpayment promptly after deduction of any other amounts due by you in accordance with our Agreement.
1.6 We do not need to give you 30 days’ notice of our proposed changes or give you a right to cancel the Service under clause 1.4 in relation to:
(a) urgent changes we are required to make:
(A) by law;
(B) for security reasons; or
(C) for technical reasons necessary to protect the integrity of our network;
(b) the introduction of a new charge or an increase in an existing charge:
(A) due to an additional tax or levy imposed by law; or
(B) for ancillary services such as credit card transaction fees and direct debit charges (provided we have offered you a reasonable alternative at the same or lesser cost to the original charge);
(c) increases in charges due to increases imposed on us by other Suppliers for the following types of Services and charges:
(A) international carriage services (including for voice and data services) the current rates for which are available on our Website;
(B) content and premium services (including 1900 prefix services) which we resell to you from a third party, including where we collect fees from you on behalf of that third party; and
(C) for calls made to satellite services; and
(d) a change to or removal of any special feature of your Service that is not expressly referred to in the relevant service description.
Where practicable to do so, we will give you reasonable notice of the changes referred to in this clause 1.6 by one of the methods of giving notice listed in clause 1.3.
1.7 If we reasonably consider that a change to any term of our Agreement is likely to benefit you or have a neutral impact on you, we can make the change immediately and do not need to tell you before making the change. However we will notify you within a reasonable time after making the change by providing notice of the change on our Website or by one of the other methods of giving notice listed in clause 1.3.
1.8 If a change to the Agreement made under clause 1.7 has more than a minor detrimental impact on you (for example, because of your particular circumstances or pattern of usage of the Service) we will permit you to cancel the Service in accordance with clause 1.4 and 1.5.
1.9 Our Service plans and pricing change from time to time. After any relevant Contract Term expires, we may (at our discretion) continue to provide a Service to you in accordance with the same Service plan and pricing that applied during the Contract Term, even if we no longer offer the Service on those terms to new customers (Legacy Service). Details of the terms of any Legacy Service we supply to you, including pricing, will be made available to you upon request.
Authorised Persons and communicating with us about your Service
1.10 You may nominate another person to have the authority to exercise any of your rights under the Agreement (Authorised Person). Anything that an Authorised Person does in relation to your Service is deemed to be done by you.
1.11 You may nominate another person to have the authority to communicate with us about your Service, without giving that person the authority to exercise any of your rights under the Agreement (Contact Person). If a Contact Person requests changes to your Service or otherwise attempts to exercise your rights under the Agreement, we may request that you or an Authorised Person contact us directly.
2. YOUR APPLICATION FOR SERVICE
Making an Application
2.1 You may make an application for supply of a Service by (Application):
(a) completing and submitting an online application form located on our Website;
(b) telephone by asking our customer representative to complete the application form on your behalf and to read the Material Terms to you;
(c) completing a written application in the form supplied by us and submitting it to us by facsimile, or in any other manner acceptable to us; or
(d) any other means agreed by you and us to be an Application.
2.2 Each Service selected by you on your Application is described in more detail in the Service Description applicable to that Service.
2.3 Subject to our acceptance of your Application in accordance with clause 2.7, our Agreement commences on:
(a) if you apply online, the date you submit the application form;
(b) if you sign an application form, the date you sign the application form;
(c) if you apply by telephone and the Material Terms are read to you, the Material Terms apply from the date you accept the Material Terms and the remaining terms of our Agreement commence on the Service Commencement Date;
(d) in any other case the Service Commencement Date.
Subject to clauses 2.3(c) and 2.3(d), you agree to the terms and conditions contained in the Agreement by making an Application.
2.4 You must provide us with all information that we reasonably require for the purposes of this agreement (including for the purposes of an investigation by us of a suspected misuse of the Service or breach of this Agreement by you). We rely on the information you supply being accurate, truthful and correct.
2.5 You must promptly advise us of any changes that are relevant to your account or the Service including changes to your account details (such as registered address or billing address) debit or credit card details (including expiry dates).
Cooling off period
2.6 You may cancel your Application at any time within 48 hours from day that you submitted your Application with us (not including any day that is a Saturday, Sunday or public holiday in your State or Territory). If you do want to cancel, you must do so by sending us an email or communicating with us by other means as indicated on our Website. Any cancellation after such time will incur a Break Fee in accordance with clause 13.2(b).
Accepting your Application
2.7 When you make an Application, we decide (in our absolute discretion) whether to accept your Application and to supply the Service to you based on any factors that we deem to be relevant, including:
(a) your eligibility for that Service;
(b) its availability to you;
(c) you meeting our credit requirements;
(d) the information you provide to us; and
(e) your prior conduct or history in respect of any previous supply by us or any Activenet Entity of any goods or services to you, including your compliance with the relevant terms and conditions under which those goods or services were supplied.
2.8 Please ensure that you carefully check the telephone number you provide in your Application. An incorrect number will result in charges for any calls made on the line you have nominated. This may also mean you will be paying for someone else’s telephone calls. In the event you have provided an incorrect phone number, we will not take responsibility or accept liability for any errors made or costs incurred.
3. THE PREMISES AND CONNECTING THE SERVICE
3.1 In order to provide the Service to you, we may need to access the Premises. You agree to provide us with, or arrange for us if required, safe and prompt access to the Premises to:
(a) install any equipment for a Service you have requested;
(b) inspect, test, maintain, modify, repair or replace any equipment;
(c) recover Our Equipment after the Service is cancelled; and
(d) enforce our rights under clause 5.7.
3.2 If you do not own the Premises, you must obtain the owner’s permission for us to access the Premises and install and maintain any equipment. You must notify us prior to the commencement of any work on the Premises if you are unable to obtain the owner’s permission. You indemnify us against (and must pay us for) any claim the owner of the Premises makes against us or against anyone working for us relating to entry on to the Premises or doing the things listed in clause 3.1 that occurs as a result of your failure to comply with this clause 3.2.
Connecting the Service
3.3 We will connect the Service in accordance with the relevant Service Description, or if no connection timeframe is specified, within a reasonable time.
3.4 There may be a time delay between us accepting your Application, and providing you or the End User with the Service. We are not and will not be liable for any delays associated with connecting the Service, nor any inability by us to provide the Service to you or the End User. You will not be charged for a Service unless or until it is provisioned by us or our wholesale provider.
3.5 We decide the route and technical means to be used to provide the Service. We reserve the right to change the infrastructure used to deliver the Service at any time, so long as this does not adversely affect the performance of the Service or your use of the Service.
3.6 Activenet may determine that the installation of a Service is a standard installation, a non-standard or a subsequent installation. A subsequent installation means a subsequent installation to a premise after an initial installation.
3.7 If the installation is a non-standard installation or a subsequent installation, Activenet will provide a quote to you or the End User for additional charges. Activenet will only carry out the non-standard installation or subsequent installation if you or the End User have consented to the quote. The additional charges will be invoiced to you by Activenet.
3.8 If you or the End User do not agree to the quote, Activenet may immediately suspend or cancel the pending order or the Service associated with the quote. Cancellation fees may apply in accordance with our Agreement with you.
4. USING THE SERVICE
Compliance with all laws and reasonable directions
4.1 In using the Service, you must, and take all reasonable endeavours to ensure that all End Users, comply with all laws, all directions by a Regulatory Authority, and all reasonable directions by us.
Our Acceptable Use Policy
4.2 You, and any person who accesses your Service, must not use, or attempt to use, the Service in any way which breaches our Acceptable Use Policy.
4.3 You are responsible for and must pay for any use of the Service, including:
(a) any unauthorised use, except for any unauthorised use that has arisen as a result of our negligent or wrongful act or omission;
(b) any use of the Service by any person that you have expressly or impliedly allowed to use the Service; and
(c) if you vacate the Premises and do not either disconnect the Service or transfer legal responsibility for the Service in accordance with clause 17.1, any use of the Service after you have vacated the Premises.
4.4 You acknowledge that:
(a) you will not represent or pass-off that you are an Activenet Entity or misrepresent the manner in which or the extent to which you use the Services provided by Activenet;
(b) you will not represent that you are authorised to act on behalf of any Activenet Entity;
(c) you will not use the name Activenet or any Activenet trade mark in promoting or supplying the Service unless authorised by Activenet;
(d) Activenet may not be able to exercise any control over, authorise or make any warranty regarding:
(A) your right or ability to use, access or transmit any content (whether error-free, in time, or at all) using the Service;
(B) the accuracy or completeness of any content which you may use, access or transmit using the Service including any data which Activenet may cache as part of the Service;
(C) the consequences of you using, accessing or transmitting any content using the Service, including without limitation any virus or other harmful software; and
(D) any charges which a third party may impose on you or an End User in connection with your use of the Service.
Testing and Interception
4.5 You authorise us to scan or conduct any assurance testing of the security of the Network and/or your Service (including Your Equipment and any IP address ranges allocated to you in connection with the Service) for the purposes of helping you improve the security of the use of your Service, but we are not obligated to do so.
4.6 You acknowledge that to the extent permitted by law, we may intercept communications over the Service.
4.7 We (or our Suppliers) may (but are not obligated to) monitor your usage of the Service and communications sent over it for the purposes of ensuring:
(a) your compliance with our Agreement;
(b) compliance by us or our Suppliers with the law; or
(c) compliance with any request or direction of a Regulatory Authority, a law enforcement authority or other authority.
Peak and Off Peak periods
4.8 Peak and Off Peak periods on some Service plans are used to manage the volume of traffic on the Network at different times helps us to maximise the performance of the Network.
For plans that specify separate Peak and Off Peak allowances, your total data allowance is split into the maximum you can download during the Peak hours of the day; and the maximum you can download during the Off Peak hours of the day. The Peak and Off Peak periods are different for each product plan as described under the relevant plan in the Pricing Schedule.
4.9 You must not connect to our Network using a Username and Password other than those provided for your specific connection. A breach of this clause constitutes a material breach of our Agreement.
4.10 We reserve the right to prioritise applications and the use of those applications, in order to optimise Network performance. Network optimisation is determined by total Network usage, and is not based on your (or any other customer’s) use of particular services or applications.
4.11 Applications will be prioritised based on whether the performance of the application is time-sensitive (i.e. the need for real-time usage of the application) and whether it requires a minimum throughput speed. Applications such as streaming video, voice, mail, web, virtual private networking (VPN), gaming, video on demand (VoD), Internet protocol television (IPTV) and other similar applications will therefore be prioritised over non-time sensitive applications such as file transfer protocol (FTP) and file Downloading. For example, your VoIP service will be prioritised over any Downloading you do, thereby maintaining the quality of your VoIP service.
No UPS Battery
4.12 Generally, Activenet does not offer a battery backup service in respect of the Service. However, Activenet can provide a battery backup service for NBN services free of charge provided that you request such service at the time of your Application. If we do not provide battery backup services, you must (without limiting your obligation to comply with the ACMA Determination for Backup Power and Informed Decisions):
(a) inform and make each End User aware of the effect and consequence of a Downstream Service being supplied without a battery back-up service, including providing them with sufficient information to make an informed decision as to whether they require battery backup functionality;
(b) inform and make each End User aware that the Downstream Service requires mains power to operate in the ordinary course and will not work if the power goes out and should not be relied on for emergency calls;
(c) obtain the End User’s consent to not receive any battery back-up for the Downstream Service;
5.1 To enable you to use the Service, we may loan or Rent equipment to you or the End User (Our Equipment). Charges for any of Our Equipment that you or the End User Rent are invoiced in accordance with Clause 8. Our Equipment may be equipment owned by us or one of our Suppliers.
5.2 Where we provide Our Equipment to you or the End User in connection with the Service:
(a) ownership or title in Our Equipment is not transferred to you or the End User; even after the expiry of any contract period;
(b) you are responsible for Our Equipment from the time it is delivered to you and must pay us for any loss or damage to Our Equipment, except to the extent that it is caused by us or by fair wear and tear;
(c) you must, and must procure the End User to, comply with our reasonable directions relating to our rights of ownership of Our Equipment;
(d) you must, and must procure the End User to, only use Our Equipment in accordance with the manufacturer’s specifications and our reasonable written directions;
(e) you must, and must procure the End User to, not part with possession of Our Equipment except to us;
(f) you must, and must procure the End User to, not grant a Security Interest over Our Equipment;
(g) you must, and must procure the End User to, allow us to inspect, test, service, modify, repair, remove or replace Our Equipment, or to recover it after the Service is cancelled;
(h) you must, and must procure the End User to, ensure that Our Equipment is not altered, repaired, serviced, moved or disconnected except by service personnel approved by us;
(i) you must, and must procure the End User to, ensure that you have all necessary consents and approvals (including landlord approval where applicable) necessary or desirable for us to deliver, install and maintain Our Equipment at the Premises; and
(j) you must, and must procure the End User to, provide adequate and suitable space, power supply and environment for all Our Equipment located on the Premises.
5.3 You agree that you are responsible for:
(a) supplying, maintaining and repairing all equipment used in connection with the Service, other than Our Equipment (Your Equipment) including telephone access lines, telephone and computer equipment (including modem) and other access device(s) necessary for us to provide the Service to you;
(b) compliance with all laws and relevant technical standards issued by a Regulatory Authority in relation to Your Equipment; and
(c) the proper functioning and security of Your Equipment,
and you agree to comply with all reasonable directions given by us in relation to Your Equipment, including:
(d) allowing us to inspect Your Equipment; and
(e) making any necessary changes or modifications to Your Equipment to avoid any danger or interference it may cause to Our Equipment or the Service.
5.4 You must ensure that all equipment which you or End Users use in connection with the NBN Network or the NBN Services comply, and are used in compliance, with all applicable laws, regulatory approvals and requirements, and are maintained in good repair and working condition.
5.5 Activenet or NBN may provide you and the End User with NBN Equipment for the purposes of a Service. You agree and acknowledge (and must ensure the End User agrees and acknowledges) that:
(a) all NBN Equipment remains the property of NBN Co and must remain at your (or the End User’s) site or premises unless otherwise by instructed by Activenet or NBN Co;
(b) NBN Co may remove or disconnect the NBN Equipment at any time (and Activenet may remove or disconnect the NBN Equipment where required to do so by NBN Co); and
(c) if NBN Equipment is damaged or becomes inoperable, then Activenet will endeavour to procure that NBN Co (as the owner and or supplier of that equipment) repairs or replaces it within a reasonable period, however, Activenet is not responsible for such repair or replacement, or an Interruption to a Service which may result from such damage or inoperability of NBN Equipment.
Disconnection of Your Equipment
5.7 Without limiting any of our rights under clause 12.3, if you do not comply with any of your obligations under clause 5.3, we may disconnect Your Equipment from the Service or require you to do so. We will try to give you reasonable notice before disconnection but may immediately disconnect your Service in an emergency.
5.8 You may purchase equipment from us for use in connection with the Service (Purchased Equipment). Title to the Purchased Equipment passes to you when you pay for it in full. You will be responsible for the Purchased Equipment from when it is delivered to your nominated delivery address.
5.9 Subject to the Consumer Guarantees, if you purchase the wrong equipment, you may exchange it provided that it is returned to us undamaged and complete with all components and with the packaging intact, within 14 days of delivery to your nominated delivery address. To help cover our costs, a restocking fee will apply as specified in the Pricing Schedule.
6. QUALITY AND MAINTENANCE
Standard of services
6.1 Subject to the Consumer Guarantees and to clause 14, we aim to provide, but do not guarantee, continuous or fault-free service.
6.2 Service availability depends on and is subject to location, the configuration and limitations (including capacity constraints) of our Network. Actual speeds will vary due to various factors including, without limitation, distance from the exchange, selected service, customer equipment, number of concurrent users in the network, your line condition and your hardware and software.
6.3 The targeted minimum downstream bandwidth is 1.5Mbps with ADSL 2+ Broadband, which is met in most cases. However, there may be circumstances when the maximum bit rate is less than 1.5 Mbps. There is no minimum service guarantee from NBN for a residential service however we try to ensure that you achieve a minimum of 30% of your quoted bandwidth I.E a 100Mbps downstream service we would expect to perform at no less than 30Mbps downstream.
6.4 The shared nature of our Network means that throughput speeds are variable depending on the number of End Users simultaneously connected and associated line transmission rates of those users. The speed of the Service relies on:
(a) not all End Users using the Service or a similar service at the same time. If all End Users use the Service or a similar service at the same time, the speed will be noticeably lower than the line speed to the user; and
(b) End Users not using the Service for what we reasonably consider to be sustained, high-volume traffic as this compromises the efficiency of networks providing the Service and you must not use and must ensure that an End User does not use the Service in this manner.
Calls recorded by our customer support centre
6.5 You acknowledge that any calls we make to you or you make to us may be monitored or recorded and you consent to us monitoring or recording such calls. If you do not consent to having your calls monitored or recorded, please advise our phone staff of this once your call is answered.
Monitoring services connected to fixed copper line
6.6 Where a Monitoring Service or other hard-wired Telephony Device is fitted on the telephone line used to deliver the Service, you acknowledge that a central splitter and network termination device (Central Filtering Equipment) must be installed by you or an End User on this line at your or an End User’s cost in order to receive the Service.
6.7 If four or more Telephony Devices are connected to the telephone line used to deliver the Service, an End User should install Central Filtering Equipment on this line. Failure to do so can result in interruptions or interfere with the Service.
6.8 You warrant that you understand that failure to install the Central Filtering Equipment can result in the Service being interrupted and/or the Service interfering with the operation of monitoring services or Telephony Devices and that you will pass this information to the End User.
6.9 Where an End User has a monitoring service installed on their telephone line, you warrant that you will inform them that they should notify the supplier of the monitoring service that installation of the Service and/or Central Filtering Equipment may cause a minor disruption in the telephone service or monitoring service.
6.10 We may conduct maintenance on any of our Network, Our Equipment, or Facilities. We will try to conduct scheduled maintenance outside normal business hours but may not always be able to do so. We may also suspend the supply of the Service in accordance with clause 12.4(c). We will not be responsible for managing, upgrading or updating the firmware on your Activenet supplied modem or router. You will be responsible for updating your modem or router to ensure the service performs at its optimal level.
Faults caused by You or Your Equipment
6.11 Before reporting a fault to us, you must take reasonable steps to ensure that the fault is not a fault in any of Your Equipment. We are not responsible for rectifying any fault in the Service where the fault is caused by you, the End User or Your Equipment and the fault does not arise or was not caused by us or Our Equipment.
6.12 If you report a fault in the Service and ask us to come to the Premises to repair it and, once at the Premises, we determine (in our reasonable opinion) that the Service is not faulty or the fault is associated with Your Equipment rather than the Service, we may charge you an incorrect call-out fee (as specified in the Pricing Schedule) and, if you request us to repair Your Equipment, our reasonable charges for such repair.
6.13 We can charge you for repairing a fault if it is caused by something:
(a) you or End Users intentionally, recklessly or negligently do (or do not do);
(b) someone else using the Service with your express or implied authority intentionally, recklessly or negligently does (or does not do); or
(c) someone who you have not authorised to use the Service does, or does not do (but only if that person’s unauthorised use of the Service occurs due to an intentional, reckless or negligent act or omission by you).
Maintenance of Your Equipment
6.14 You are responsible for the proper functioning and security of Your Equipment. You must maintain and repair all of Your Equipment used in connection with the Service.
7.1 The charges for the Service are set out in our Pricing Schedule and any additional charges are set out in your Application.
7.2 You must pay all charges for the Service in accordance with the Service Description and the Pricing Schedule. Charges for the Service accrue from no later than the Service Commencement Date, or earlier if specified in your Application or the relevant Service Description.
7.3 We may charge you an additional amount to service, modify, repair, or replace the Service or any equipment you use in connection with the Service, as a result of:
(a) a breach of our Agreement by you;
(b) a negligent or fraudulent act or omission by you, a person with your express or implied authority, or by any of your employees, agents or contractors;
(c) a failure of any of Your Equipment arising out of an act or omission by you, a person with your express or implied authority, or by any of your employees, agents or contractors; or
(d) a failure or fluctuation in electrical power supply arising out of an act or omission by you, any person with your express or implied authority, or by any of your employees, agents or contractors,
and we will provide you with details of the additional amount prior to commencing the service repair or replacement.
7.4 In order to provide some services to you (for example, international calls or premium services calls), we enter into arrangements with other Suppliers. You acknowledge that our charges to you for the Service may vary as a result of a variation of a Supplier’s charges to us for these types of services, and that we may pass on any additional charges a Supplier charges to us for these types of services in accordance with clause 1.6.
7.5 From time to time we may make special offers (Specials Offers) in connection with the Service. These Special Offers may be notified in a general advertisement or specifically offered to you and may be subject to certain conditions, including:
(a) a variation by us of the price or the terms of supply (including any Contract Term); or
(b) a requirement that you acquire all relevant Services for a minimum Contract Term and pay a Break Fee if you cancel the service before the end of that minimum Contract Term.
7.6 You may accept a Special Offer in the way notified by us (which may include completing and submitting an Application). If you validly accept a Special Offer, the terms of that Special Offer will prevail to the extent of any inconsistency over those which would otherwise apply in our Agreement, and will apply until the expiry of the Special Offer as notified by us. In all other respects, the terms and conditions of our Agreement continue to apply. After the expiry of the Special Offer, the Special Offer pricing and terms will cease to be available and, unless we give you reasonable notice otherwise, the terms of our Agreement will apply thereafter.
8. BILLING AND PAYMENT
8.1 We will bill you on a monthly basis for fixed service charges one month in advance.
8.2 You will have 14 days from date of issue to pay your invoice.
8.3 If you do not pay your bill on time you will be charged a $15 late payment fee.
8.4 Payment methods available are listed on your invoice. Preferred method of payment for all customers is via Direct Debit.
8.5 We will endeavour to include on your invoice all charges for the relevant billing period. As this may not always occur, we may include unbilled charges in any later invoice(s) issued up to 160 days after the date the unbilled charge was accrued.
8.6 Any Payment difficulties should be raised to our office prior to the due date of the bill.
8.7 You invoice will display your monthly service fee, Data usage for the billing period and any voice calls made (If Applicable).
9. GST AND OTHER TAXES
Penalties and Interest
9.1 Where we become liable for any penalties or interest as a result of the late payment of GST due to your failure to comply with the terms of our Agreement (including this clause 9) or your obligations under any applicable law, then you must pay to us an additional amount equal to any penalties or interest payable by us.
Other fees, taxes and levies
9.2 We may charge you for any other applicable:
(a) value added taxes relating to the supply of your Service; and
(b) taxes (including utilities taxes), levies, fees or similar charged to us (including such taxes on-charged to us by Suppliers) on a per service basis.
10. PERSONAL INFORMATION
Collection of your Personal Information
10.1 We may collect Personal information about you for the purposes set out in clause
(a) you directly, when you provide information by phone or in application forms, or when you submit your personal details through our web sites;
(b) our employees, agents, contractors, or Suppliers;
(c) any Activenet Entity;
(d) a credit reporting agency, credit provider or fraud-checking agency;
(e) your representatives;
(f) other telecommunication and information service providers; and
(g) publicly available sources of information.
Disclosure of Your Personal Information
10.2 We may disclose Personal Information about you for the purposes set out in clause
(a) our employees, agents or contractors;
(b) any Activenet Entity;
(c) Suppliers who need access to the Personal Information to provide us with services that enable us to supply the Service to you;
(d) a credit reporting agency, credit provider or fraud-checking agency, our professional advisers, including our accountants, auditors and lawyers;
(e) other telecommunication and information service providers (for example, if you obtain services from other providers, we may need to disclose your personal information for billing purposes);
(f) an Authorised Person or Contact Person;
(g) your legal advisers (for example, when requested by you to do so); or
(h) government and Regulatory Authorities and other organisations, as required or authorised by law (for example, to the operator of the Integrated Public Number Database (IPND), which supplies information for telephone directories and to law enforcement agencies for purposes relating to the enforcement of criminal and other laws.
10.3 We may use the Service to communicate with you in relation to your account (including to notify you of your level of usage, remind you of unpaid invoices and to provide notice of Service suspension or cancellation). You acknowledge that by allowing third parties to access the Service you are consenting to the disclosure to those third parties of your Personal Information.
Use of your personal information
10.4 We may collect, use and disclose Personal Information about you for the purposes of:
(a) verifying your identity;
(b) assessing your eligibility for our Services;
(c) assisting you to subscribe to the service of any Activenet Entity;
(d) providing the services you require from any Activenet Entity;
(e) administering and managing those services, including billing, account management and debt collection;
(f) conducting appropriate checks for credit-worthiness and for fraud;
(g) determining whether to provide to you (or to cease or limit the provision to you of) trade, personal or commercial credit and the ongoing credit management of your account;
(h) researching and developing our products and services and the products and services of other Activenet Entities;
(i) business planning;
(j) providing your Personal Information to the manager of the Integrated Public Number Database (IPND) for the Approved Purposes; and
(k) reporting to credit reporting agencies if you fail to make payments due under our Agreement by the applicable due dates.
Access to Personal Information
10.5 If you are a natural person (i.e. an individual), you are entitled to access your Personal Information held by us, unless we are permitted or required by law to refuse such access.
Failure to supply Personal Information
10.6 If you choose not to provide all or part of the Personal Information we request, we may not be able to provide you with the Services requested by you, or we may refuse to provide, or limit the provision to you of, any Service or personal or commercial credit requested by you.
End User Details
10.8 Activenet may from time to time request you to provide to Activenet information (including personal information) about End Users (End User Details) in order to provide the Service or to comply with a request from NBN Co. NBN Co may require End User Details in order to:
(a) provide goods or services to Activenet;
(b) carry out any work in relation to the supply and goods or services to Activenet including to install, maintain, upgrade, repair, reinstate or remove all or part of the NBN Network or any other item that is licensed, owned or controlled by NBN Co that is or will be located at the relevant premises, and where lawful, any third party network; or
(c) for any other purpose, where necessary for NBN Co to perform its obligations or exercise its rights under any agreement with Activenet or comply with applicable law.
10.9 If you receive such a request from Activenet under clause 10.8, you must:
(a) provide the requested End User Details to Activenet as soon as is reasonably practicable; and
(b) before providing the End User Details to Activenet, obtain all necessary consents, give all necessary notifications required to ensure that Activenet End User Details as contemplated by this clause, and provide, or procure and provide, those End User Details to NBN Co. You must use reasonable endeavours to ensure that any End User Details provided to Activenet are complete, accurate and up-to-date.
11. VARIATIONS TO THE SERVICE
Variations requested by you
11.1 If you request a variation to the Service and we, in our discretion, make that variation, then:
(a) different charges may apply to the varied Service in accordance with the Pricing Schedule;
(b) a Variation Fee may apply to the varied Service as notified to you by us and as set out in the relevant Service Description or in the Pricing Schedule.
12. CANCELLING OR SUSPENDING THE SERVICE
Cancellation by us with notice
12.1 We may, without liability, cancel the Service:
(a) if there is no Contract Term specified in your Application or the Service Description, at any time by giving 30 days’ notice to you;
(b) if a Contract Term is specified in your Application or the Service Description, at any time after the end of the Contract Term by giving 30 days’ notice to you; or
(c) if we reasonably determine that it is not technically, commercially or operationally feasible to supply the Service to you, at any time prior to the Service Commencement Date by giving you notice.
12.2 Subject to your rights under the Consumer Guarantees, we may cancel the Service if you materially substantiate that the Service has not met or is not meeting your prior expressed expectations or needs and, acting reasonably, we agree that we are not able to provide a Service that meets your prior expressed expectations or needs.
Suspension events caused by your default or conduct
12.3 We may immediately suspend, cancel or restrict the supply of the Service to you if:
(a) you fail to pay any amount owing to us by the due date and you fail to pay that amount within 7 days after we give you notice requiring payment of that amount, except that we will not give you such notice in respect of an amount which is validly disputed in accordance with our Billing Policy (Disputed Amount) until after we have completed our investigations in accordance with our Billing Policy. For the avoidance of doubt, you must pay all amounts other than the Disputed Amount in accordance with your standard payment terms;
(b) without limiting any other rights we have under this clause 12.3, you breach a material term that is capable of remedy and you do not remedy that breach within 14 days after we give you notice requiring you to do so;
(c) you breach a material term (other than a breach which separately gives rise to rights under this clause 12.3) and that breach is not capable of remedy;
(d) you breach any of clauses 3.1, 3.2, 4.1, 4.2, 4.9, or 5.3 or any of your obligations relating to the use of the Service specified in the Service Description;
(e) we reasonably suspect fraud or other illegal conduct by you or any other person in connection with the Service;
(f) we reasonably believe a threat or risk exists to the security of the Service or the integrity of our Network or a Supplier’s Network and that threat or risk is caused directly or indirectly by you;
(g) you resell the Service or otherwise act as a Carriage Service Provider;
(h) we reasonably consider you to be an unacceptably high credit risk;
(i) we are entitled to under another provision of our Agreement;
(j) an Insolvency Event occurs in relation to you, your business, or one of your Related Bodies Corporate;
(k) you vacate the Premises or you die;
(l) in the case of a partnership, on dissolution or on the filing of an application to dissolve the partnership, we reasonably believe that it is unlikely that we will receive or retain amounts due and payable by you under our Agreement; or
(m) you are a business customer and you cease or state that you intend to cease conducting your business in the manner in which your business was being conducted as at the Service Commencement Date.
Suspension events not caused by your default or conduct
12.4 Without limiting any other provision of this Agreement, we may immediately suspend, cancel or restrict the supply of the Service to you if:
(a) there is an emergency;
(b) a Supplier terminates its agreement with us, or ceases to supply services to us, and we are not able to provide the Service using services of an alternate Supplier on terms reasonably acceptable to us;
(c) doing so is necessary to maintain, repair or restore any part of our Network or a Supplier’s Network used to supply the Service, or for other operational reasons;
(d) we are required by law or in order to comply with an order, direction or request of a Regulatory Authority or an emergency services organisation;
(e) the ACCC issues us with a competition notice (as that term is used in the Competition and Consumer Act 2010) in respect of the Service or we reasonably anticipate that it may do so;
(f) providing the Service to you may be illegal or we reasonably anticipate that it may become illegal;
(g) a Force Majeure Event prevents us from supplying the Service in accordance with our Agreement for more than 14 days; or
(h) we reasonably believe that there is a threat or risk to the security of the Service or the integrity of our Network or a Supplier’s Network and that threat or risk is not caused directly or indirectly by you.
12.5 In the event that we decide to suspend, cancel or restrict the supply of a Service to you under clause 12.4, we will endeavour to provide you with as much notice as is reasonably possible in the circumstances.
12.6 If we suspend the Service under clauses 12.3 or 12.4, we may later cancel the Service for the same or a different reason (subject to the relevant provisions of our Agreement).
Cancellation or suspension by you
12.7 Except as provided otherwise in the Service Description for your Service, you may cancel the Service without liability, by giving us notice:
(a) at any time, if there is no Contract Term specified in the Service Description or your Application;
(b) if a Contract Term is specified in the Service Description or your Application, at any time after the end of the Contract Term;
(A) we have breached a material term of our Agreement and that breach is not capable of remedy; or
(B) we have breached a material term of our Agreement and that breach is capable of remedy but we failed to remedy that breach within 14 days after you first gave us notice requiring us to do so, or
(d) of at least 14 days where there has been a prolonged Interruption to the Service lasting for more than 10 days, or more than 3 reported Interruptions in a 12 month period. This clause does not apply to Interruptions which occur because of:
(A) a cancellation, suspension or restriction to the supply of the Service in any of the circumstances listed in clause 12.3;
(B) a cancellation, suspension or restriction to the supply of the Service in any of the circumstances listed at clause 12.4;
(C) a fault or other event which may reasonably be attributed directly or indirectly to Your Equipment; or
(D) your acts or omissions.
12.8 You may cancel the Service for any reason before the end of the Contract Term by giving notice to us but you may be required to pay a Break Fee in accordance with clause 13.2(b).
12.9 You may ask us to suspend the Service by giving notice to us. We will try to do so within a reasonable period if it is a Service for which suspension is an option. Any charges applicable during a suspension under this clause 12.9 are set out in the Service Description for that Service. We can reasonably limit the length of time that a Service can be suspended by you. ADSL Services cannot be suspended.
13. CONSEQUENCES OF SUSPENSION AND CANCELLATION
Consequences of suspension
13.1 If we reconnect a Service that has been cancelled, you may have to pay us a reconnection fee. You will not be required to pay a reconnection fee if the Service was cancelled or suspended pursuant to clauses 12.4, 12.7(c) or 12.7(d) or due to our fault or negligence.
Consequences of cancellation
13.2 If the Service is cancelled in accordance with our Agreement (other than in accordance with clauses 12.1(c), 12.2, 12.4, 12.7(c) or 12.7(d)):
(a) before the Service Commencement Date, we can charge you any costs reasonably incurred by us in preparing to provide it to you; and
(b) during the Contract Term, you must pay to us the Break Fee.
13.3 If the Service is cancelled you still have to pay all charges incurred before cancellation.
13.4 Subject to clause 13.3 and our Billing Policy, in the event that there is credit remaining on your account at the time of cancellation, you will receive the credit via your listed credit card without being charged the Handling Fee. We reserve the right to charge any associated merchant fees, as they are a reflection of the costs incurred by us to prepare the refund for you. If a cheque or other method of refund is required, a Handling Fee is payable.
13.5 On cancellation of the Service:
(a) because of any of the circumstances listed at clauses 12.3, 12.7(a) or 12.7(b), you will, at your cost, immediately stop using and return to us, or allow us to remove, any of Our Equipment. You must pay all outstanding amounts in a lump sum for any Purchased Equipment which you have not fully paid for at the date of cancellation;
(b) because of any of the circumstances listed at clauses 12.4, 12.7(c) or 12.7(d), you will immediately stop using and return to us, or allow us to remove, any of Our Equipment. We will refund any amounts already paid by you for any equipment that you have purchased but not fully paid for at the date of cancellation, if that equipment cannot be used with other telecommunications providers’ services. Where the equipment can be used with other telecommunications providers’ services, no refund is applicable and you must pay all outstanding amounts in a lump sum. We will not credit you with any refund until after you have returned the equipment to us and we have assessed that the returned equipment has not been damaged by more than fair wear and tear;
(c) under clause 12.8 where we have supplied you with equipment on the condition that you acquire the Service for the full Contract Term then:
(A) if we supplied the equipment free of charge, you must:
(i) return the equipment to us; or
(ii) retain the equipment and pay for it in full; or
(B) if we supplied the equipment at a discount, you must:
(i) return the equipment to us and we will reimburse you the purchase price paid by you, or
(ii) retain the equipment and pay us an amount equivalent to the discount we gave you;
(d) you will, at your cost, return to us all other material of ours (including any software) on the Premises or in your possession or control;
(e) unless our Agreement expressly states otherwise, each person’s accrued rights and obligations are not affected;
(f) you must immediately stop using the Service; and
(g) the parts of our Agreement which are by their nature intended to survive cancellation will continue unaffected, including clause 3.1 (Access), clause 3.2 (Owner’s permission), clauses 5.2 to 5.4 (Equipment), clause 8 (Billing and Payment) and our Billing Policy, clause 9 (GST and Other Taxes), clause 10 (Personal Information), this clause 13 (Consequences of Suspension and Cancellation), clause 14 (Our liability to You), clause 15 (Your Liability to Us), clause 16 (Telephone Numbers and Public Addressing Identifiers), clause 17 (Assignment and Subcontracting), clause 18 (General) and clause 20 (Definitions and Interpretation).
Deletion of Data
13.6 Once this agreement has been terminated or cancelled for any reason, we may delete all of your data from any storage media. You are solely responsible for backing up your data.
14. OUR LIABILITY TO YOU
14.1 We agree to provide the Service to you subject only to the terms, conditions and warranties contained in the Agreement and any non-excludable rights you have under the Australian Consumer Law, including in particular under any applicable Consumer Guarantees. Any liability that we might otherwise have to you in connection with our Agreement or Service is expressly excluded.
For example, there are Consumer Guarantees that we will provide the Service to you with due care and skill, and that Our Equipment and Purchased Equipment will be of acceptable quality. Certain remedies are available to you under the Australian Consumer Law if the Service or equipment we supply to you fails to meet the standard required by applicable Consumer Guarantees.
Limitation of liability
14.2 Where we are not permitted to exclude our liability for any loss or damage in connection with our breach of a Consumer Guarantee, but are permitted to limit our liability for such a breach, then, unless you are able to establish that it is not fair and reasonable for us to do so, our liability to you is limited to:
(a) if the breach relates to the supply of Our Equipment or Purchased Equipment, the repair or replacement of the equipment, the supply of equivalent equipment or the payment of the cost of repairing or replacing the equipment or supplying equivalent equipment; or
(b) if the breach relates to the supply of a Service, resupplying the Service or payment of the cost of having the Service resupplied.
14.3 The limitations of liability in clause 14.2 do not apply to:
(a) a breach of the Consumer Guarantees relating to clear title, undisclosed securities and undisturbed possession under sections 51 to 53 of the Australian Consumer Law;
(b) a breach of any Consumer Guarantee relating to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption;
(c) personal injury (including illness and disability) or death; or
(d) the loss, destruction or damage to, or loss of use of tangible property.
14.4 Activenet excludes any liability (including in negligence) to your End Users. You indemnify and will keep us indemnified against any Loss suffered or incurred by any Activenet Entity in connection with an End-User claim (including a claim based in negligence) in any way related to the Services or the Agreement.
Interruption to the Service
14.5 Subject to clause 14.3, in the case of Interruptions to the Service, we may offer you a refund or rebate for the period of the Interruption if a rebate/refund formula for Interruptions is specified in the Service Description for the Service.
14.6 In addition to your rights (if any) under clause 14.1, you may be entitled under the Australian Consumer Law to compensation for any reasonably foreseeable loss incurred if the Interruption is caused by our breach of a Consumer Guarantee.
14.7 The refund or rebate in clause 14.1 does not apply to Interruptions which occur because of:
(a) a cancellation, suspension or restriction to the supply of the Service in any of the circumstances listed in clause 12.3;
(b) a fault or other event which may reasonably be attributed directly or indirectly to Your Equipment;
(c) your acts or omissions; or
(d) scheduled maintenance to our Network, a Supplier’s Network, Our Equipment or Purchased Equipment for less than 1 hour.
14.8 Except for liability which is expressly accepted by us under this clause 14 and any liability we have under the Australian Consumer Law (including the Consumer Guarantees) that cannot be excluded, we exclude all other liability to you (whether based in contract, tort (including negligence), statute or otherwise) for suspending, cancelling or restricting the Service where we do so in accordance with our Agreement.
14.9 To receive the rebate or compensation set out in clause 14.5, you must call us and inform us of the Interruption.
14.10 Our liability for any loss, cost, liability or damage suffered or incurred by you under or in connection with our Agreement or the Service (whether based in contract, tort (including negligence), statute or otherwise) is reduced to the extent that your acts or omissions or Your Equipment (or the acts, omissions or equipment of a third person) caused or contributed to that loss, cost, liability or damage.
14.11 We exclude any liability to you for any Consequential Loss suffered or incurred by you, except to the extent that you are entitled to recover your reasonably foreseeable loss under the Australian Consumer Law.
Acts of a Supplier
14.12 We accept liability to you for the acts of our agents in accordance with the principles of vicarious liability at common law. The Australian Consumer Law (including the Consumer Guarantees) imposes obligations on us that cannot be excluded, including obligations on us that arise as a result of the acts or omissions of our Suppliers.
14.13 Other than as expressly stated under clause 14.12, we have no liability to you or to any other person for the acts, omissions or defaults of any Supplier who is not acting as our agent, or any person who provides goods or services directly to you for use in connection with a Service.
Force Majeure Event
14.14 Subject to your rights under the Australian Consumer Law, which we do not exclude, we are not liable for failing to comply with any of our obligations under our Agreement if a Force Majeure Event occurs which prevents us from performing those obligations.
15. YOUR LIABILITY TO US
15.1 If you and one or more others are the customer for a Service, each of you is jointly and individually responsible for all charges and other obligations relating to that Service.
15.2 You must pay us for any loss, damage, cost or liability including reasonable legal costs (but excluding any Consequential Loss) (Losses) we suffer or incur relating to:
(a) the use (or attempted use) of the Service; or
(b) equipment used in connection with the Service,
arising out of your (or any person acting with your express or implied authority) breach of this Agreement or negligent acts or omissions.
15.3 You must pay us for any Losses we suffer or incur as a result of or in connection with the suspension or disconnection of your Service (unless the suspension or disconnection occurred under clause 12.4), including Losses suffered or incurred by us as a result of a claim against us by any third party that relates to our suspension or disconnection of your Service.
15.4 You must ensure that any person who you allow to use the Service, or to whom you ask us to supply the Service directly, complies with our Agreement as if they were you.
16. TELEPHONE NUMBERS AND PUBLIC ADDRESSING IDENTIFIERS
16.1 The Telecommunications Number Plan 1997 (Cth) sets out rules for issuing, transferring and changing telephone numbers. You and we must comply with the Telecommunications Number Plan.
16.2 In addition to telephone numbers, the Service may use other identifiers such as an IP address or domain name (Public Addressing Identifiers). You must comply with the requirements of any Regulatory Authority or other body which administers Public Addressing Identifiers.
16.3 You are entitled to continue to use any telephone number we issue to you, except in circumstances where the Telecommunications Number Plan allows us to recover the number from you.
16.4 You acknowledge and agree that:
(a) we do not control the allocation of Public Addressing Identifiers;
(b) we are not liable to you if we are required to change, withdraw, suspend or re-assign any Public Addressing Identifier as a result of any direction given by a Regulatory Authority or other body which administers Public Addressing Identifiers; and
(c) on cancellation of the Service, your right to use a Public Addressing Identifier may cease.
17. ASSIGNMENT AND SUBCONTRACTING
17.1 You must not assign or transfer or otherwise deal with any of your rights or obligations under this Agreement without our prior written consent.
17.2 We may assign some or all of our rights under our Agreement to any person.
17.3 We may transfer some or all of our obligations under this Agreement to:
(a) another Activenet Entity; or
(b) a purchaser of our business,
on condition that the transferee agrees to provide the Service to you on materially the same terms and conditions of our Agreement.
17.4 We may perform any of our obligations under the Agreement by arranging for them to be performed by another person. We will still be responsible for the performance of the obligations.
17.5 Otherwise, we may transfer or deal with our obligations under our Agreement on terms to which you consent.
18. END UserS
End User Terms
18.1 You must ensure the agreement between you and any permitted End User under which the End Users use the Service, contains terms consistent with the following:
(a) Activenet is only able to provide the Service if an End User has passed a Service Qualification.
(b) If the Simple Telephone Service associated with the Service is cancelled, you may increase the End User’s broadband charges.
(c) If you or the End User are using any equipment other than Required Equipment, Activenet will not supply the Service.
(d) Installation and operation of a Monitoring Service may cause temporary disruption to any Service.
(e) Where the End User has, or is acquiring, a Monitoring Service the End User may need to install additional equipment (this equipment is not at Activenet’s cost and Activenet has no responsibility for this equipment) to be able to receive the Service. All additional equipment should be installed prior to Activenet providing the Service.
(f) Activenet may at any time change the method of delivery of the Service.
(g) During the transfer of the Service to Activenet there may be a brief period when the broadband service is interrupted. Activenet is not liable for any interruption or delay in the transfer process.
(h) The End User must comply with the Acceptable Use Policy.
(i) Activenet is not liable to the End User in any circumstances (including in negligence) in relation to any Service supplied to the End User, any delay in supplying the Service or any failure to supply the Service.
(j) Due to technical, operational or commercial constraints, the Service may not be able to be supplied either error free or at all.
End User NBN Contracts
18.2 You agree and acknowledge (and must ensure that End Users agree and acknowledge) that:
(a) NBN Co is not providing any products or services (including the Service ) to you or End Users;
(b) NBN Co does not have a contractual relationship with you or End Users in regards to the supply of the Service (or any Downstream Service);
(c) you and End Users must not contact NBN Co directly in relation to the or any Downstream Service, unless otherwise notified by Activenet or NBN Co;
(d) to the full extent permitted by law, NBN Co will not be liable to you in any way (including any claim in negligence) for any Loss you or End Users may suffer or incur arising from or in connection with the Service or any Downstream Service; and
(e) to the full extent permitted by law, you must not (and must ensure that End Users do not) commence proceedings or make a claim against NBN Co for any Loss referred to in clause 18.2(d).
19.1 A notice, approval or consent to be issued under the Agreement must be in writing, except for variations by us, for which notice can be given in accordance with the Telecommunications Act (set out in clause 1.3). In the absence of evidence to the contrary, such notice, approval or consent will be taken to be received:
(a) if left at the address of the addressee, at the time it was left;
(b) if sent by ordinary post, on the third day after posting;
(c) if sent by express post, on the next day;
(d) if sent by facsimile or electronic transmission, at the time when the system on which the notice is sent, records that the notice has been transmitted; and
(e) if sent by email, when a delivery confirmation report is received by the sender which records the time that the email was delivered to the addressee’s email address,
(f) if the notice is sent by you, it is sent using the contact details that appear on our website at the time you send the notice; and
(g) if the notice is sent by us, it is sent using the contact details that we have recorded for your account at the time we send the notice.
19.2 If we have a right arising out of your breach of our Agreement and we do not exercise that right, we do not waive that right or any other obligation unless we do so in writing signed by us.
19.3 If a provision of our Agreement is void, voidable or unenforceable in any jurisdiction, it will be severed and the remainder of our Agreement will not be affected.
19.4 You do not, and any End User does not, own or have any legal interest in any of our intellectual property or in any telephone number, IP address, domain name, personal identification number or other locator or identifier issued by us to you.
19.5 You must comply with the terms and conditions of the software licences which apply to the use of any software supplied by us in connection with a Service (including software supplied with Our Equipment, such as modems).
19.6 If you have a business Service, you agree that if we need your consent to undertake certain actions then, provided we act in good faith, we may rely upon the authority of any of your employees, who tell us that they are authorised to provide that consent on your behalf. For residential Services, you must inform us if you want another person to have authority to access or make changes to your Service or account. We will not let another person access your account unless we have received your authority to do so.
19.7 You acknowledge that:
(a) advice from our staff is given in good faith and with the best of intention, however we do not represent that our staff are experts in the operation of your computer hardware or software. Subject to your rights under the Australian Consumer Law and the general law relating to misleading or deceptive conduct (which we do not exclude), you undertake to act on any advice given by any of our staff members at your own risk;
(b) we make reasonable efforts to ensure that the information on our Website is correct and up to date. However, we do not warrant the accuracy of that material.
19.8 Our Agreement is governed by the laws of the Commonwealth of Australia and the laws of the State or Territory:
(a) in which you ordinarily reside; or
(b) of your main business location, if you are a business customer,
(as stated in your Application) (Your State). You and we agree to submit to the exclusive jurisdiction of the courts of the Commonwealth of Australia and Your State, and any courts of appeal from these courts.
20. DEFINITIONS AND INTERPRETATION
20.1 In our Agreement:
Acceptable Use Policy means the document forming part of this Agreement that describes our policy on excessive, unreasonable, prohibited or otherwise unacceptable use of the Service.
ACMA Determination for Backup Power and Informed Decisions means the Telecommunications (Backup Power and Informed Decisions) Service Provider Determination 2014 (Cth) and any amendment to or replacement of that determination from time to time.
Activenet Entity means Activenet Pty Ltd (ACN 602 514 223) or an entity that is related to Activenet Pty Ltd in any of the ways specified in section 50 of the Corporations Act 2001 (Cth).
Activenet, we, us, our means the Activenet Entity named in your Application.
Application has the meaning given to it in clause 2.1.
Approved Purposes means:
(a) providing directory assistance services;
(b) providing operator services or operator assistance services;
(c) publishing and maintaining public number directories;
(d) providing location dependent carriage services;
(e) the operation of emergency call services or assisting emergency services under Part 8 of the Telecommunications (Consumer Protection and Service Standards) Act 1997;
(f) assisting enforcement agencies or safeguarding national security under Parts 14 and 15 of the Telecommunications Act 1997 or any other applicable legal requirement;
(g) verifying the accuracy of information provided by the data provider and held in the Integrated Public Number Database against the information the data provider holds;
(h) undertaking research of a kind specified in the Telecommunications IPND – Permitted Research Purposes Instrument 2007;
(i) assisting the Australian Communications and Media Authority, or its nominee, to verify the accuracy and completeness of information held in the IPND; and
(j) any other purposes where permitted by the Telecommunications Act 1997, and any other applicable laws.
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010.
Authorised Person has the meaning given to that term in clause 1.10.
Billing Policy means the billing policy for the relevant Activenet Entity provided in the Pricing Schedule.
Break Fee means the relevant cancellation fee or termination charge (if any) calculated in accordance with the Application, Billing Policy, Pricing Schedule, a Service Description or any appendix to the Service Description.
Business Day means a day that is not a Saturday, Sunday or gazetted public holiday in the capital city of the State or Territory of Australia in which the Service is provided.
Carriage Service Provider has the meaning given by section 87 of the
Telecommunications Act 1997.
Consequential Loss means:
(a) loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages; and
(b) any penalties or fines imposed by a Regulatory Authority,
in connection with or arising under this Agreement, whether based in contract, tort (including negligence) or otherwise.
Consumer Guarantee has the meaning given in Division 1 of Part 3-2 of the Australian Consumer Law.
Consumer Protection Act means the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).
Contact Person has the meaning given to that term in clause 1.11.
Contract Term means the minimum contract term specified in your Application, which commences on the Service Commencement Date, or, if no contract term is specified in the Application or our Agreement, then there will be no minimum contract term.
Corporations Act means the Corporations Act 2001 (Cth).
Credit Information means:
(a) personal identifying particulars including your name, gender, current address (and your previous two addresses), date of birth, telephone number, mobile number, banking details, credit card details, name of employer and drivers licence number;
(b) your application for credit or commercial credit – the fact that you have applied for credit and the amount;
(c) the fact that we are a current credit provider to you and any credit limit on your account;
(d) payments which are overdue by more than 60 days and/or for which debt collection action has started;
(e) advice that your payments are no longer overdue in respect of any default that has been listed;
(f) the fact that, in our opinion, you have committed a serious credit infringement (that is, acted fraudulently or shown an intention not to comply with your credit obligations);
(g) information about any payments, including cheques, credit cards and direct debits, which have been dishonoured;
(h) court judgments or bankruptcy orders made against you; and
(i) the fact that we have ceased providing the Service to you (and the timing of that cessation of service).
Credit Rating means information about your credit worthiness, credit standing, credit history or credit capacity that credit providers may give to each other under the Privacy Act 1998 (Cth).
Customer Service Guarantee or CSG means any performance standards issued under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).
Downgrade means a variation to the Service which reduces the capacity, use or utility of that Service and results in a reduction in the charges payable for the Service.
Download or Downstream means data that is inbound (i.e. incoming to your internet connection).
Downstream Service means any good or service supplied by you or the End User that relies on the Service as an input.
End User means any person:
(a) to whom you ask Activenet to supply a Service;
(b) to whom you authorise, consent, or have knowledge of, Activenet accepting an order for a Service;
(c) to whom you resupply a Service, or allow to distribute a Service;
(d) whom you allow to use a Service; or
(e) to whom you supply any goods or services which use or rely on a Service.
Excess Usage Charges means the fees payable for Internet Usage over and above the Monthly Usage Allowance as specified in the Billing Policy or Pricing Schedule.
Excluded Event means a breach of the Agreement by you, an act or omission of you or any of your personnel or an End User, or a failure of your equipment.
Facility means the equipment, infrastructure and or devices that are not any part of Your Equipment by which the Service is provided to you.
Force Majeure Event means any event outside that person’s reasonable control, and may include a failure or fluctuation in any electrical power supply, failure of air- conditioning or humidity control, electromagnetic interference, cable cut, fire, storm, flood, earthquake, accident, war, labour dispute (other than a dispute solely between that person and its own staff or staff under its control), materials or labour shortage, the change or introduction of any law or regulation (including the Telecommunications Legislation) or an act or omission, failure or delay of any third party or any failure of any equipment owned or operated by any third party (including any Regulatory Authority or Supplier).
Handling Fee means a fee incurred by us to provide you with a refund.
Insolvency Event means you:
(a) become insolvent or are under administration (each as defined in the Corporations Act); or
(b) have a controller or administrator appointed (each as defined in the Corporations Act), or
(c) are in liquidation, in provisional liquidation, or have a receiver appointed to any part of your property (as defined in the Corporations Act); or
(d) suspend payment of any of your debts;
(e) become unable to pay your debts as and when they are due; or
(f) become bankrupt.
Interruption in the supply of goods or a service means a material delay in supplying, a failure to supply for a significant period or a major error or defect in the supply of, those goods or that service.
Legal Lessee the person or entity that has a direct agreement with a supplier of telephone services to receive such a service, assumes all liability in respect of such service, and holds the ultimate authority to act in regards to such service.
Loss means any loss, cost, liability or damage, including reasonable legal costs on a solicitor/client basis and includes Consequential Loss, unless otherwise stated.
Material Terms means, in the context of clause 2 only, those terms and conditions we read out to you over the telephone.
Monthly Usage Allowance means the Usage that is provided per month in accordance with the plan selected by you in your Application.
Monitoring Service means a service for the monitoring of an End User’s premises to transmit information from the End User’s premises to the provider of the Monitoring Service.
NBN Co (or NBN) means NBN Co Limited (ABN 86 136 533 741) of Level 11, 100 Arthur Street, North Sydney NSW 2060, its Related Bodies Corporate (as defined in the Corporations Act 2001) and each of their respective officers, employees, agents, subcontractors and consultants.
NBN Equipment means any equipment that is owned, operated or controlled by or on behalf of NBN Co or which Activenet or NBN Co allows you or an End User to access in connection with an NBN Service.
NBN Network means the networks, systems, equipment, facilities and any other items that are used, licensed, owned or controlled by, or operated by or on behalf of, NBN Co and includes the NBN Equipment, NBN platform and the NBN national test facility.
NBN Service means a good or service (including but not limited to a Service) that relies on or uses, in whole or part, the NBN Network or any other products or services supplied by NBN Co, including as an input. It also includes applicable Downstream Services.
Network means a telecommunications network, including equipment, facilities or cabling.
Our Equipment has the meaning set out in clause 5.1.
Off Peak means the hours of the day when your data usage is counted towards your Off Peak quota allowance.
Peak means the hours of the day when your data usage is counted towards your Peak quota allowance.
Personal Information means information or opinion about you from which your identity is apparent or can reasonably be ascertained and includes your name, current and previous addresses, service number, date of birth, email address, bank account or credit card details, occupation, driver’s licence number and your Credit Information and Credit Rating.
(a) Personal Property Securities Act 2009 (Cth) and any regulations made at any time under it;
(b) any amendment to either of the above, made at any time.
PPSA Security Interest means a security interest within the meaning of the PPSA.
Premises means locations at which we supply the Service, and locations to which we need to have access to supply the Service.
Pricing Schedule means the document of that name which appears on our Website.
Primary Damages has the meaning set out in section 118A of the Consumer Protection Act.
Purchased Equipment has the meaning set out in clause 5.5.
Regulatory Authority means the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, Communications Alliance, the Telecommunications Industry Ombudsman or any other government or statutory body or authority.
Related Body Corporate has the meaning given to that term in the Corporations Act.
Rent means to pay an amount for the use of a product for an agreed period of time during which, ownership of the product is not passed. The product is returned at the end of the period.
Required Equipment means the equipment that meets the specifications and requirements for the Services.
Security Interest means:
(a) a mortgage, pledge, lien, charge, assignment by way of security, hypothecation, secured interest, title retention agreement, preferential right, trust arrangement or other arrangement (including, without limitation, any set-off or flawed-asset arrangement) having the same or equivalent commercial effect as a grant of a security;
(b) to the extent not included within paragraph (a), a PPSA Security Interest; or
(c) an agreement to create or give any arrangement referred to in paragraph (a) or (b) of this definition.
Service means the service requested by you in your Application and described in the relevant Service Description and Pricing Schedule, and any related goods (including Our Equipment and Purchased Equipment) and ancillary services provided to you by us in connection with that service.
Service Commencement Date means the date on which the Service is ready for use.
Service Description means the document forming part of this Agreement describing the Service and setting out specific terms and conditions for the Service.
Service Qualification means the Application and qualification process set out in clause 2.
Simple Telephone Service means a local service which comprises of a:
(a) Standard Telephone Service; and
(b) telephone number.
Special Offer has the meaning set out in clause 7.5.
Standard Telephone Service has the meaning set out in Section 6 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).
Supplier means any supplier of goods or services (including interconnection services) that may be used directly or indirectly by us to supply the Service.
Telecommunications Act means the Telecommunications Act 1997 (Cth)
Telecommunications Legislation means the Telecommunications Act 1997 (Cth), the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) and Part XIB, Part XIC and related provisions of the Competition and Consumer Act 2010 (Cth), each as amended or replaced from time to time.
Telephony Device includes devices such as standard telephones, fax machines, answering machines and dial-up (analogue) modems.
Usage means the amount of time generated or data Downloaded by your Internet access.
Variation Fee means the relevant upgrade or downgrade charge (if any) specified in the Pricing Schedule or Billing Policy.
you means the customer who makes the Application and where two or more persons have applied, means those persons individually and every two or more of them jointly (and your will have a corresponding meaning).
Your Equipment has the meaning set out in clause 5.3.
Warranty Information Statement means the document forming part of this Agreement which describes your rights with respect to some equipment we supply to you, the warranty periods that apply and how to claim under the warranty.
Website means the website of the Activenet Entity named on your Application, being www.Activenet.com.au
20.2 Unless the context otherwise requires:
(a) undefined words and expressions have the same meaning as in the Telecommunications Legislation.
(b) the expressions “we”, “us”, “our”, “you” or “your” will include their respective successors and permitted assigns and novatees.
(c) a reference to a person includes a reference to a person, firm, corporation or other legal entity.
(d) a term which is defined in any part of our Agreement has the same meaning in every other part of our Agreement.
(e) the singular includes the plural and vice versa.
(f) different grammatical forms of the same word have the corresponding meaning.
(g) a reference to a clause is to a clause in the General Terms, unless otherwise stated.
(h) the words ‘including’, ‘includes’ or ‘for example’ or similar expressions are not words of limitation,
(i) a “reasonable” notice period means a period which is reasonable in the circumstances taking into account technical, operational and commercial issues.
Acceptable Use Policy
ACCEPTABLE/FAIR USE POLICY
Download Soft Copy here
1 About this Policy
(a) Your use of the Service is subject to the following rules and guidelines contained in this policy. Please read it carefully.
(b) The meaning of the capitalised words are set out at the end of this policy, the Service description for the relevant Service or in the Terms and Conditions (as applicable to you). If a definition in this policy is inconsistent with a definition in the Service description for the relevant Service or in the Terms and Conditions (as applicable to you), the definition in this policy applies.
(a) This policy is designed to ensure that your use of the Service does not break any laws, hinder the efficient operation of Our Network, interfere with the rights of Activenet Customers, or interfere more generally with the rights of Internet users.
(b) You are responsible for ensuring that use of the Service and your Activenet Account (if any) complies with this policy. You are also responsible for any use of the Service even if, for example, it was used with or without your consent by a friend, family member, guest or employee who gains access to the Service or your Activenet Account (if any).
(c) If we amend this policy, we may notify you, and you hereby consent to us sending you notices in such a way, by using one or more of the following methods:
(i) mail (to the last address you have given us);
(ii) email (to your primary email address); or
(d) You should consult this policy regularly to ensure that your activities conform to the most recent version.
(e) If there is an inconsistency between any other part of your agreement and this policy, this policy will apply.
(f) If you become aware of any violations of this policy by other Activenet users you should contact us immediately.
(g) Use of Activenet unlimited services are not to be used;
(i) For commercial or business premises unless purchased as a business service.
(ii) For any Website/Server hosting activity
(iii) Excessive use that has an impact on the larger Network and other users of the Network.
(h) Access to Torrent sites is not supported on our Network. While it is not prohibited or blocked we do monitor the traffic and users that have excessive use of such sites will be issued with a usage violation warning. Continual breach of this clause will be punishable as per the guidelines of clause 10 of this document (Acceptable/Fair Use Policy Activenet).
3 Illegal Activity
You must not use the Service for any activity that breaches any law or violates any local, state, federal or international law, order or regulation. Prohibited activities include (but are not limited to):
(a) sending, receiving, publishing, posting, distributing, disseminating, encouraging the receipt of, uploading, downloading, using or in some cases accessing, content which is unlawful, including:
(i) content that is or would be classified by the Classification Board as RC Rated or X Rated and that is or would be classified by the Classification Board as R Rated where a Restricted Access System is not in place;
(ii) content which violates the copyright or other intellectual property rights of others. You assume all risks regarding the determination of whether material is in the public domain; or
(iii) content that defames, harasses, offends or abuses anyone or violates their privacy;
(b) activities that are in breach of any other third party’s rights, including downloading, installation or distribution of pirated software or other inappropriately licensed software, deletion of any author attributions, legal notices or proprietary designations or labels in any file that is uploaded, falsification of the origin or source of any software or other material;
(c) pyramid or other illegal soliciting schemes; or
(d) any fraudulent activities, including impersonating any person or entity or forging anyone else’s digital or manual signature.
(a) You are responsible for any misuse of the Service, as set out in clause 2(b) above. You must take reasonable steps to ensure that others do not gain unauthorised access to the Service and your Activenet Account (if any).
(b) The Service must not be used to obtain or attempt to obtain unauthorised access to any computer, system or network. If you do not have authorisation, prohibited activities include (but are not limited to):
(i) accessing, monitoring or using any data, systems or networks;
(ii) probing, scanning or testing the vulnerability of a system or network;
(iii) breaching any security or authentication measures for a system or network;
(iv) accessing the account or private information of any other person or entity;
(v) accessing any server in violation of any acceptable use policy of that server, including any attempt to do any of the things mentioned in paragraphs (i) to (iv) above.
(c) You must not:
(i) use (or attempt to use) or distribute tools designed for compromising security including, but not limited to, password guessing programs, cracking tools, packet sniffers or network probing tools;
(ii) knowingly or negligently create, transmit or disseminate any information or software, which contains, without limitation, viruses, corrupted files, Trojans or other harmful features which are known or likely to cause, interrupt, damage, destroy or limit the functionality of any computer software, hardware or equipment owned by us or any other Internet user or person;
(iii) use (or attempt to use) the service in a manner that may interfere with the technical operation of the service or any other computer, system, network or telecommunications services, including (but not limited to) denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges and attempts to ‘crash’ a host;
(iv) launch ‘denial of service’ attacks; ‘mailbombing’ attacks; or ‘flooding’ attacks against a host or network; or
(v) interfere (or attempt to interfere) with the regular workings of our systems or network connections.
(d) You are solely responsible for the security of any device you choose to connect to the Service, including any data stored on that device.
(e) We recommend against enabling file or printer sharing of any sort. We recommend that any files or services you do choose to make available for remote access be protected with a password or other appropriate measures to prevent unauthorised access.
(f) You must notify us immediately of any unauthorised or attempted unauthorised use of your Service and any other breach or attempted breach of security.
5 Risks of the Internet
(a) Some activities that you can perform when accessing the Internet may be harmful or cause loss to you, other people that may access your service, or your equipment. Typical activities include (but are not limited to):
(i) downloading content (including receiving emails) from the Internet which may introduce viruses or other harmful features to your computer;
(ii) purchasing goods or services using the Internet;
(iii) transmitting confidential information over the Internet (such as your credit card number or other personal information); or
(iv) accessing and viewing content on the Internet or otherwise available through the service that may be offensive to some individuals, or inappropriate for children (for example, it is possible to obtain access to content that is pornographic, offensive and/or unsuitable for children).
(b) You bear all risk associated with the activities referred to in paragraph (a) above, and we do not have any liability for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such activities.
(c) You may minimise the risk of accessing illegal or offensive content as well as managing use of the Internet by using a filtering solution. We will provide access to one or more of these Filtering Solutions at a reasonable cost to you as part of the service.
(d) You have the right to make complaints to the Australian Communications and Media Authority about Internet content which is or would classified by the Classification Board as X Rated, RC Rated, or R Rated and does not have a Restricted Access System in place.
6 Content Publishing
(a) You are solely responsible for any content that you publish via websites, email, newsgroups, Online Forums or other publishing mediums accessed via the Service.
(b) You must not publish material that is or would be classified by the Classification Board as RC Rated or X Rated via websites, email, newsgroups or other publishing mediums accessible via the Service.
(c) You must take appropriate precautions to prevent minors from accessing or receiving any content you have published that may be inappropriate for them. This includes implementing a Restricted Access System on content that is or would be classified by the Classification Board as R Rated. We also encourage you to use appropriate warnings and / or labelling systems in respect of content which is likely to be considered unsuitable for children.
(d) We reserve the right to block access to, remove, or refuse to post any content, in whole or in part, that we, in our sole discretion, deem to be offensive, indecent, or otherwise inappropriate regardless of whether such content or its dissemination is unlawful. This includes (but is not limited to) obscene material, fraudulent or deceptive statements, threatening, intimidating or harassing statements, or material which violates the privacy rights or intellectual property rights of others, or is likely to be defamatory of another person.
(e) Commonwealth legislation allows the Australian Communications and Media Authority to direct us to remove certain prohibited or potentially prohibited content from our servers or to prevent users from accessing certain Internet content. We may take any steps necessary in order to ensure compliance with any relevant industry code of practice, or notification or direction from the Australian Communications and Media Authority, including removing any content (including part or all of a website) from our servers, blocking access to newsgroups, closing or suspending your ActiveNet Account, filtering the Internet content made available to you or restricting access to a particular website. We may take these steps at any time and without notice to you.
(f) Commonwealth legislation allows copyright owners or their agents to direct us to remove copyright materials from our servers or to prevent users from accessing copyright materials. We may take any steps necessary in order to ensure compliance with a notification from a copyright owner or their agent, including removing any content (including part or all of a website) from our servers, closing or suspending your ActiveNet Account, filtering the Internet content made available to you or restricting access to a particular website. We may take these steps at any time and without notice to you.
(g) We are under no obligation to monitor transmissions or published content on the Service. However, we (or our agents) have the right to monitor such transmissions or published content from time to time and to disclose that content.
(h) By using the Service to reproduce, publish, display, transmit or distribute content, you warrant that the content complies with this policy and authorises us (or our agents) to reproduce, publish, display, transmit and distribute such content as necessary for us to deliver the content in a timely manner.
7 Electronic Messaging
(a) You must not use the Service to send bulk and/or unsolicited messages. This includes, but is not limited to commercial advertising, informational announcements, charity requests, petitions for signatures, chain letters and political or religious messages. You must only send such a message to those individuals who have explicitly requested it.
(b) The Service must not be used to:
(i) send messages to any individual or entity who has indicated that he/she/it does not wish to receive messages from you,
(ii) collect or redirect responses from unsolicited messages sent from accounts on other Internet hosts or messaging services which violates this policy, or the equivalent policy or any other policy of any other Internet service provider or web site. Moreover, unsolicited messages sent from accounts on other Internet hosts or messaging services may not direct the recipient to any web site or other resource that uses Our Network.
(c) You must not:
(i) obscure, alter or delete the source of messages that you send or forge message headers,
(ii) send numerous copies of the same or substantially similar messages, or send very large messages or files, to a recipient with the intent to disrupt a server or account (for example, ‘mail bombing’),
(iii) send chain letters, whether or not the recipient wishes to receive such mailings.
(d) We are not responsible for forwarding or storing messages sent to any Activenet Account that has been suspended or cancelled. Such messages may be returned to sender, ignored, deleted, or stored temporarily at our sole discretion.
8 Online Forums
(a) This clause applies to Online Forums, in addition to clause 6.
(b) Messages posted to an Online Forum must comply with the written charters for that forum. You are responsible for determining the policies of a given forum before posting a message to it. Data files may only be posted to Online Forums that specifically permit this.
(c) Posting or cross-posting the same or substantially similar messages to more than eight Online Forums is prohibited.
(d) You must not disrupt or attempt to disrupt Online Forums by posting a large number of messages that contain no substantive content. Disruption occurs when normal discussion in the group is significantly hindered.
(e) You must not use the Service to connect to an Online Forum from which you have been previously banned.
9 Automated Applications
The Service is provided for interactive use. However, if automated programs or programs that maintain a persistent connection to a remote service are used, they must only be used when you are physically present at the computer. These activities include (but are not limited to) automated file downloading, IRC ‘bots’, continuous streaming media and peer-to-peer file sharing applications.
10 Violation of Acceptable Use Policy
(a) If you, or someone with access to the Service, use the Service in a way that we, in our sole discretion, believe violates this policy or any other term of your agreement, we may take any responsive action we deem appropriate.
(b) Such actions may include (but are not limited to) temporary or permanent removal of content and content publishing capabilities, filtering of Internet transmissions and the immediate suspension or cancellation of all or any portion of the Service.
(c) We have no liability for any such responsive actions and may take any other legal or technical action we deem appropriate, including taking action against offenders to recover the costs and expenses of identifying them. If your use of the service causes a loss to third parties and we are required to pay compensation, we may require you to reimburse us.
(d) We are not obligated to regularly monitor your usage of the Service (including any content posted, disseminated or accessed by you), however we reserve the right to monitor your use of the Service to identify violations of this policy, and to protect Our Network, the other users of this Service, and other Internet users.
(e) We reserve the right to investigate suspected violations of this policy, including the gathering of information from the user(s) involved and the complaining party, if any, and examination of transmissions and material on our servers and network. During an investigation, we may suspend the ActiveNet Account(s) involved, interrupt transmissions and/or remove material that potentially violates this policy.
(f) In order to enforce this policy, you authorise us (or our agents) to cooperate with:
(i) law enforcement authorities in the investigation of suspected criminal violations, and
(ii) system administrators at other Internet Service providers or other network or computing facilities. Such cooperation may include us providing, for example, the username, IP address or other identifying information about a user.
(g) Upon cancellation of an Activenet Account, we are authorised to delete any files, programs, data and email messages associated with the ActiveNet Account.
(h) Any failure by us to enforce this policy, for whatever reason, shall not be construed as a waiver of any right to do so at any time.
(i) You agree that, if any portion of this policy is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect.
(j) This policy is governed by the laws of the Commonwealth of Australia and the laws of the state or territory in which you normally reside. You and we submit to the exclusive jurisdiction of the courts of the Commonwealth, and its states and territories.
11 What Do Words in this Policy Mean?
Classification Board is the Classification Board established under the Classification (Publications, Films and Computer Games) Act 1995 (Cth).
Electronic Messaging includes all forms of electronic communications to other individuals including email, instant messaging, web to SMS, Internet chat and online forums.
Filtering Solutions means Internet filtering software or system approved for use under the Internet Industry Association Content Codes of Practice registered under the Broadcasting Service Act 1992 (Cth). The Internet Industry Association provides a list of approved filtering solutions on its website – www.iia.net.au
Online Forum mean a forum accessible on the Internet that is generally devoted to the discussion of a specific topic area and includes (but is not limited to) newsgroups, message boards, chat rooms or mailing lists.
Activenet Account means the email account (if any) where you are billed for one or more Services and through which you can monitor and request changes to the Service.
Activenet Customers means customers who are connected to one of the Services. Our Network means the network(s) used to supply the service to you as set out in the relevant Service description.
R Rated includes (but is not limited to) material containing excessive and/ or sexual violence, implied or simulated sexual activity, or materials which deal with issues or contains depictions that requires an adult perspective.
RC Rated includes (but is not limited to) material containing detailed instruction in crime, violence or drug use, child pornography, bestiality, excessive violence or sexual violence, real depictions of actual sexual activity or obscene material.
Restricted Access System means a ‘restricted access system’ as referred to on the Australian Communications and Media Authority website at www.acma.gov.au.
X Rated includes (but is not limited to) material containing real depictions of actual sexual violence, implied or simulated sexual activity, or materials which deal with issues or contains depictions that requires an adult perspective.
This website is operated by Activenet Pty Ltd ABN 16 602 514 223. When we use the words “we”, “our” or “us”, we are referring to Activenet.
- and any other terms, conditions, notices or disclaimers displayed on the website.
Together, these are called the “applicable terms”.
By using this website you are deemed to have accepted the applicable terms and agree to be bound by them.
Changes to the applicable terms.
We may change the applicable terms from time to time by publishing an updated version, or a notice of an updated version, on this website. If you use this website after we have posted updated terms, you will be deemed to have accepted those terms.
Your use of this website
Registration may be required to access
You may need to register with us, in order to access some parts of this website. When you register, it is a good idea to keep your registration details confidential because you will be responsible for any access to the website using your registration details, even if the access is by another person.
You must not use this website to obtain any data or information if it is for the purpose of sending unsolicited emails, or other unsolicited communications, to any other person.
No automated access
You must not use any robot or spider or any other automated process to access or copy any part of this website or any of its contents.
No interference with this website
You must not transmit any virus or other information or material to or via this website, or otherwise use the site in a way that:
- tampers with, hinders the operation of, or makes unauthorised modifications to this website;
- prevents any other user from using or enjoying this website;
You also must not permit or enable another person to do any of those things.
No unlawful, infringing or offensive posts, comments or other activity
You must not post or transmit any information or material to or via this website, or otherwise use this website for any activity that:
- defames, harasses, threatens, menaces or offends any person;
- contains obscene, indecent, inflammatory or pornographic material or material that could give rise to civil or criminal proceedings; or
- otherwise breaches any laws or regulations, infringes a third party’s rights or privacy or is contrary to any relevant standards or codes.
You also must not permit or enable another person to do any of those things.
No obligation to resolve disputes
We do not have an obligation to resolve disputes between you and other users of this website.
We may suspend or terminate your access
We may restrict or suspend your use of this website or ban you from the site altogether, if we believe you have contravened the applicable terms in any way.
When we exercise these rights, our decision is final, and we will not be obliged to provide you with reasons, or correspond with you further about our decision.
Your posts and comments
Posts and comments
It is up to you to make sure that your posts and comments do not infringe anyone’s rights (including the intellectual property rights of any third parties) and that you have obtained all necessary consents or licences to any third party material that you include in your posts.
You must not post or provide links to any prohibited, unlawful or inappropriate material, such as posts that are defamatory, threatening or offensive.
Our rights in your content
You grant us a non-exclusive, royalty-free, perpetual and irrevocable licence (including the right to sub-license) to use, reproduce, adapt, modify and communicate to the public your posts and comments and any other information you make available on this website.
We may contact you for comments
We may contact you to provide comments about your posts or comments.
Links to third party sites
From time to time we may post content on this website which may contain links to third party websites. We do not approve or endorse those third party websites and if you incur any loss due to these websites, we will not have any liability to you.
Linking to this website
You may create a link to the front page of this website if you like, but you must not:
- create links to specific pages (known as “deep linking”);
- display any page of this website within a frame or in a distorted or altered form;
- create any link to this website on any site unless that site conforms to accepted standards of public decency and good taste, does not expose us to any risk of liability under any criminal or civil law (including liability arising from the infringement of a third party’s rights) and does not disparage us or our goods or services; or
- create or use any link in any way that represents or implies falsely, deceptively or confusingly that we sponsor, endorse or are affiliated with or related to any third party (including you) or product, or that you are providing, or are the source of any goods or services that we provide.
If you submit, post, transmit or otherwise make any material available via this website (“your content”):
- you grant to us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, transferable licence to use, reproduce, modify, adapt, publish or communicate to the public your content for the reasonable purposes of our business;
- You grant us the right to sub-license those rights to others;
- you consent to any act or omission that would otherwise infringe any of your rights (including your moral rights) in your content; and
- you warrant that you have the right to grant the above licence, that our exercise of the licence rights above will not infringe the intellectual property rights of any person, and that your content is not defamatory and does not breach any law.
While we may monitor or review your content, we are not obliged to do so. We may also remove, alter or take down any of your content at any time.
We own or license all copyright and other intellectual property rights relating to this website (including the software, design, text, graphics and the selection and layout of the site). The copyright is protected by the laws of Australia and other countries.
You are authorised to view this website and its contents using your web browser or, when you are specifically invited to do so, to share certain content on social media. But you must not otherwise reproduce, transmit (including broadcast), communicate, adapt, distribute, sell, modify or publish or otherwise use any of the material on the site, including audio and video excerpts, unless it is permitted by statute or you have our prior written consent.
Our trade marks
This website includes registered trademarks and trademarks which are the subject of pending applications or which are otherwise protected by law. These include the word ACTIVENET, and the Activenet Logo.
You may not use any of these trademarks, the names ‘Activenet Pty Ltd’, or ‘Activenet’ or the name of any of our related companies unless you have our prior written consent.
Illegal downloading / file sharing
The Copyright Act 1968 (Cth) protects materials such as films, music, books and computer programs. You may be breaking the law if you download, copy, share or distribute this material, unless you are allowed to do so by the Copyright Act or you have the copyright owner’s permission. Please do not use our services to do any of these things, because if you do, we might have to cancel your service and the copyright owner could take legal action against you.
If you do any of these things on a repeat basis, we have implemented a policy for dealing with infringers that may, in appropriate circumstances, result in us terminating a repeat infringer’s email or other account.
Designated Copyright Representative
Division 2AA of Part V of the Copyright Act 1968 (Cth) and Part 3A of the Copyright Regulations 1969 (Cth) establish a scheme (“Safe Harbour Scheme”) that limits the remedies available against carriage service providers for infringements of copyright that relate to the carrying out of certain online activities by carriage service providers.
Our designated representative for receiving notifications and notices under the Safe Harbour Scheme, in relation to all of the activities that we undertake as a carriage service provider is:
Designated Copyright Representative
Activenet Pty Ltd
Email address: firstname.lastname@example.org
Postal address: 40 English Street, Essendon Fields Victoria Australia 3041
Fax Number: 1300 587 624
Third party products promoted or advertised
We do not endorse any third party products that may be advertised or promoted on this website and we are not liable to you in any way in relation to those products.
This website is provided “as is”
Subject to non-excludable rights under consumer protection laws, we exclude all warranties, terms and conditions, express or implied, relating to this website and to your use of this website.
In particular, we do not claim that the material on this website is accurate or error free, that it will be error free in the future, or that it will operate in an uninterrupted manner.
Limitation on Liability
Subject to non-excludable rights under consumer protection laws, we exclude all liability to you in relation to this website, your use of this website or the actions of any other person accessing or using this website.
We will accept that liability if it cannot be excluded under any legislation. If that liability cannot be excluded but can be limited under any legislation, we limit our liability to resupplying, repairing or replacing the relevant goods or services (or payment of the cost of resupply, repair or replacement) where it is fair and reasonable to do so.
However, we are not liable for any loss if it is caused by you, or if it is because you did not take reasonable steps to avoid or minimise your loss.
Relationship between you and us
No waiver for breaches
If we do not act in relation to a breach of the applicable terms by you, we do not waive any rights to act in relation to that breach or any later breach by you. If you do not act in relation to a breach of the applicable terms by us, you do not waive any rights to act in relation to that breach or any later breach us.
Activenet Pty Ltd ACN 602 514 223 (AN) is bound by the Australian Privacy Principles (Principles) contained in the Privacy Act 1988 (Cth) (Privacy Act). The Principles are designed to protect the confidentiality of information and the privacy of individuals by regulating the way personal information is managed. Personal information is, generally, information or an opinion relating to an individual, whether that information or opinion is true or not, which can be used to identify that individual.
Why does AN collect personal information?
AN collects certain personal information in order to understand and meet the needs of customers and provide the products and services they require.
What types of personal information does AN collect?
The types of personal information that we collect may include information about:
- Personal contacts of corporate clients or suppliers;
- Applicants for employment with AN; and
- Other people who come into contact in the ordinary course of business.
This information is collected in a variety of ways, including by way of personal contact such as business activities and events, as well as mail, telephone, email and internet. Please note that our website does not provide systems for secure transmission across the internet, except where indicated.
We may also collect and use personal information available from public sources, such as telephone listings, and from private sources where it is necessary to identify customers. For example, builders and real estate agents may provide details of new occupants and tenants who are using utility services.
Employee exemption: AN is not bound by the Principles in relation to handling of their own current or former employees’ records, if those records relate directly to the employment relationship.
How does AN use and disclose personal information?
In general, AN may use or disclose personal information for the following purposes:
- To provide products and services to customers;
- To communicate with contractors and suppliers;
- To provide administration for employees of AN;
- To provide ongoing information about our products and services to people that we believe may be interested;
- To help manage and enhance our products and services, including by surveying customers on their future needs;
- To consider applications for employment; and
- To comply with legal obligations.
We also use your personal information to promote and market products and services to you. This is to keep you informed of products, services and special offers and may continue after you cease to acquire services from us. If you do not wish us to contact you to promote and market products, services and special offers, or if you have subscribed to any of our newsletters or subscriptions and no longer wish to receive such communications, please call 1300 587 623 or email
Also, if you are the contact person for a customer or supplier, we may use your personal information such as your name to manage our relationship with your organisation.
Depending on the product or service or issue concerned, we may disclose personal information to:
- Service providers and specialist advisers who have been contracted to provide administrative, financial, research or other services;
- Insurers, credit providers, courts, tribunals and regulatory authorities (including the Australian;
- Tax Office) as required or authorised by law;
- Credit reporting or reference agencies or insurance investigators; or
- Anyone authorised by an individual, as specified by that individual or the contract.
We may give personal information about you to a credit reporting agency, whether before, during or after the provision of credit to you, for the following purposes:
- to obtain a consumer credit report about you; and/or
- to allow the credit reporting agency to create or maintain a credit information file containing information about you.
However, the information that we are permitted to give to a credit reporting agency is limited to:
- your name, sex, date of birth, current and previous two addresses;
- the name of your employer;
- your driver’s licence number;
- the fact that you have applied for credit and the amount;
- the fact that AN is a current credit provider to you;
- information that, in our opinion, suggests you have committed a serious credit infringement;
- (that is, that you have acted fraudulently or shown an intention not to comply with your credit obligations); and
- the fact that a cheque drawn by you has been dishonoured more than once.
Does AN collect sensitive information?
We will obtain your consent prior to collecting, using or disclosing your sensitive information, unless the collection of the information is required by law. Sensitive information is information or an opinion about an individual’s racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, sexual preferences or practices, criminal record or health information.
Management of personal information
AN has implemented appropriate technological and organisational measures to assist us in ensuring that the personal information we hold about you is accurate and up-to-date. We realise however that your personal information may change frequently with changes of address and personal circumstance. Please contact us promptly at the address set out below to inform us of any changes to your personal information. Similarly, if you have subscribed to any of our newsletters or subscriptions, or are receiving promotional communications, and no longer wish to receive such communications, you may opt out of receiving them at any time.
We expect our employees and contractors who handle personal information to comply with the Privacy Act and will take appropriate action in response to breaches of the obligations imposed by the Principles. Although we seek to engage external service providers who also comply with these requirements, we do not accept responsibility for the misuse of personal information by these third parties.
Accessing your personal information
Under the Principles, you usually have the right to obtain a copy of any personal information which AN holds about you and to advise us of any perceived inaccuracy. We will consider any recommendation by you to change or correct information and advise you of the action taken. You may request to access your personal information by contacting us at the number or address set out below. Depending upon the personal information you seek, you may be asked:
- To complete an Information Request Form;
- To verify your identity in writing; and/or
- If the inquiry involves extensive administration time or resources, to pay a fee. If this is the case, we will advise the likely cost in advance and can help refine your request if required.
Please note that in circumstances prescribed by the Privacy Act, you may be refused access to your personal information (for example, if providing access would be unlawful or would have an unreasonable impact upon the privacy of other individuals).
Complaints about an interference with privacy
How to contact us
You can contact AN about a privacy-related issue by phone, post or online via our Contact Us page.
Phone: 1300 587 623
Address: Activenet Pty Ltd
Att. Privacy Officer
40 English Street
ESSENDON FIELDS VIC 3041
Updates to this Policy
When purchasing from Activenet Pty Ltd your financial details are passed through a secure server using 128-bit SSL (secure sockets layer) encryption technology. At the date of this policy, 128-bit SSL encryption is the current industry standard encryption technology. If you have any questions regarding our security policy, please contact our Customer Support Centre email@example.com