In this Agreement, unless the context otherwise requires:
Access Site means the site address nominated in the Application for Service.
Agreement means this agreement for the provision of the Services between Spectrum Networks and the Customer, comprising in their order of precedence, these Terms and Conditions, the Application for Service, the relevant Service Level Agreement and any other document incorporated by reference or agreed in writing by the parties.
Application for Service means the application document issued by Spectrum Networks
Carrier means a carrier as defined in the Telecommunications Act 1997 (Cth).
CLI means calling line identification.
Confidential Information means all information and all other knowledge relating to Spectrum Networks, Spectrum Networks's products or Services which comes into the possession of the Customer from any source, or information which is treated by Spectrum Networks as confidential regardless of its form, or which is designated by its nature as confidential, but excluding information that is in the public domain.
Current Supplier means a Carrier, a telecommunications service provider or equipment supplier who supplies services or equipment to the Customer.
Customer means the person or entity whose name appears on the Application for Service.
Customer Premises means the Access Site and any other premises occupied by the Customer to which Spectrum Networks may require access in order to install, maintain or remove Equipment or the Services.
Equipment means any equipment or other material provided to the Customer or installed at the Access Site by Spectrum Networks in connection with this Agreement.
Force Majeure Event means any event specified in clause 18.1.
GST and GST Law have the same meaning as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended or replaced from time to time.
Installation Charge means a once-off charge for labour, equipment, number connection and associated cabling for initial installation of the Services.
Minimum Term has the meaning given to that term in the Offer Application.
OnNet means the Spectrum Networks network and Spectrum Networks owned facilities in Australia;
OffNet means any extended access tails or network or facility supplied by a third party carrier or carriage service provider (including international terrestrial or satellite links) and used to extend the reach of the Spectrum Networks network to complete supply of the Services.
Other Supplier means a Carrier, a telecommunications carriage service provider or an equipment supplier other than Spectrum Networks, as the case may be, and includes Current Suppliers.
Spectrum Networks means Spectrum Networks pty ltd ABN 66 090 112 913
Recurring Charge means an an amount of $600.00 +GST per month.
ĶService Delivery Point means the port, fibre termination panel or electrical interface at the Access Site as determined necessary by Spectrum Networks for interconnection to the Spectrum Networks network.
Service Levels means the services levels for the OnNet component of the Services specified in the Service Level Agreement.
Service Level Agreement means a standard service level agreement as published by Spectrum Networks from time to time or a customised service level agreement agreed in writing and signed by the parties.
Services Commencement date has the meaning given to that term in the Offer Application.
Services the relevant telecommunication services identified in the Application for Service.
Taxes means any fees, charges, taxes or other levies in addition to GST imposed by any Federal or State government or municipal council (other than the tax on the income or capital gains of Spectrum Networks).
Transferred Services means the telecommunication Services transferred to Spectrum Networks from the Customer's Current Supplier.
Upstream Charge means the charge payable per megabyte sent by the Customer.
Usage Based Charge means a monthly usage charge for utilisation of minutes or capacity including any minimum usage charge set out in the Application for Service.
2.1 Provision of Services: Spectrum Networks agrees to supply and the Customer agrees to acquire the Services in accordance with the terms of this Agreement. The Customer acknowledges that Spectrum Networks may provide the Services using a combination of OnNet and OffNet facilities.
Customer Request Date: The Customer may nominate in the Application for Service the date by which it would like to receive the Service. Spectrum Networks will use reasonable endeavours to meet this date but does not represent or warrant that it will deliver the Service by this date. Upon acceptance of the Application for Service by Spectrum Networks, if reasonably possible Spectrum Networks provisioning will confirm by written notice to the Customer contact identified in the Application for Service, either:
2.3 Variations: Where the Customer requests a variation to the Service (ie a relocation, upgrade to bandwidth etc,), the request must be in writing. Spectrum Networks will be under no obligation to vary the Service unless and until it accepts such written request.
2.4 Internet Services: Unless expressly provided for in the Application for Service, Internet Services do not include:
Notwithstanding Spectrum Networks may, in its absolute discretion and without obligation to do so, provide these Services from time to time on terms to be agreed.
2.5 Service Levels: Spectrum Networks cannot guarantee that the Services will be continuous or fault free but will use its reasonable endeavours to meet the Service Levels for the OnNet component of the Services only. If Spectrum Networks fails to achieve the relevant Service Levels for any OnNet component of the Services in any one month, the Customer will be entitled to a rebate to the Recurring Charge for that month, calculated by reference to the percentage rate rebates specified in the relevant Service Level Agreement.
2.6 Suspension of Services: Spectrum Networks reserves the right to suspend the provision of the Services, without liability:
If Spectrum Networks is required to comply with a request from a government agency or emergency service organisation.
As an alternative to the exercise of Spectrum Networks’s right of termination under this Agreement.
While the Service is suspended pursuant to clauses 2.6 (a) or (c), Spectrum Networks will continue to incur costs of supply associated with keeping that Service in a suspended state. Accordingly, the Customer agrees that, except in the case of Usage Based Charges, all applicable charges in relation to the Service will continue to accrue while suspended and will be payable by the Customer.
2.7 Exemptions: Notwithstanding any other provision of this Agreement, the Customer will not be entitled to a rebate for any suspension of the Services or failure to achieve the Service Levels where the suspension of the Services or failure to achieve the Service Levels is caused directly or indirectly:
3.1 Commencement of Agreement: The term of this Agreement commences on the date the Customer's Application for Service is accepted by Spectrum Networks.
3.2 Commencement of Services: The Customer acknowledges that before commencing supply of the Services Spectrum Networks may need to modify or install necessary equipment to Spectrum Networks's reasonable satisfaction and make arrangements with Other Suppliers for the provision of the Services.
3.3 Term: The term of this Agreement continues until the end of the Minimum Term and then on a month to month basis.
4.1 Termination by Spectrum Networks: Spectrum Networks may immediately terminate this Agreement or any part of this Agreement without prior written notice to the Customer if:
4.2 Termination by Affected Party: Either party (“Affected Party”) may without liability terminate this Agreement, with immediate effect from the date of service of a notice (or with effect from such later date as the Affected Party may nominate in such notice), if:
4.3 Termination with notice: After the expiration of the Minimum Term, either party may terminate this Agreement by giving 30 days written notice to the other, effective 30 days from the date when that written notice is delivered to that other party, or upon such later date as is specified in that notice.
4.4 Liability Until Termination: The Customer remains liable for all charges payable under the Agreement in respect of Services up to the time of termination.
4.5 Accrued Rights Unchanged: Termination of this Agreement is without prejudice to the rights of each party against the other accrued up until the time of termination.
4.6 Termination Fee: If:
Spectrum Networks elects to exercise any right to terminate this Agreement prior to expiry of the Minimum Term pursuant to clause 4.1 or clause 4.2, the Customer must pay Spectrum Networks, by way of liquidated damages, the fee referred to in Clause 4.6(a), which the parties acknowledge is a genuine pre-estimate of the losses which Spectrum Networks will suffer as a result of early termination of this Agreement.
This clause 4.6 does not otherwise limit the Customer’s liability to Spectrum Networks on termination.
4.7 Continuing Obligations: Clauses 4 to 7 and 10 to 14 continue despite termination of this Agreement.
5.1 Invoicing: Spectrum Networks will endeavour to invoice the Customer monthly but reserves the right to bill at different intervals. Spectrum Networks will provide the Customer with a breakdown of the fees and charges payable in each invoice
5.2 Billing Method: Spectrum Networks will invoice for and the Customer will be liable for, the Service commencing on and from the date of first supply of the Services whether or not the Customer uses the Services from that date:
5.3 Set off: Spectrum Networks will be entitled to set off in whole or in part any amounts due and payable by Spectrum Networks to the Customer, against the whole or a proportionate part of any amount due and payable by the Customer to Spectrum Networks under this Agreement.
6.1 Price: The charges referred to in clause 5.2 are set out in the Application for Service. After the Minimum Term, the relevant Charges will continue on a monthly basis, subject to change upon 30 days prior written notice or publication of new rates.
6.2 Minimum Usage Charge: Where a minimum Usage Based Charge is provided for in the Application for Service, that amount will apply even if the Customer has incurred lower Usage Based Charges or no Usage Based Charges in that calendar month.
6.3 Payment Terms: The Customer must pay all fees and charges within 30 days of the date of invoice.
6.4 Interest: Spectrum Networks reserves the right to charge interest on any part of the charges or GST not paid to Spectrum Networks by the due date. Interest will be charged from the due date until payment at a rate equal to 3% above the Commonwealth Bank Corporate Overdraft Reference Rate or such other comparable rate chosen by Spectrum Networks most recently published before that date. The Customer will be liable to pay Spectrum Networks all expenses (including legal costs and expenses and the fees of Spectrum Networks's debt recovery agents) incurred by Spectrum Networks in relation to seeking payments due under this Agreement.
6.5 Discounts: Spectrum Networks reserves the right to withdraw any discounts that the Customer receives from Spectrum Networks in connection with the supply of Services where payment is not received within the terms of Clause 6.3.
Taxes:
Subject to clause 6.6(b), the charges set out in this Agreement are inclusive of all state and commonwealth taxes, with the exception of GST and any stamp or transaction duty on this Agreement and any related interest, expense, fine, penalty or other charge relating to these taxes, which must be paid by the Customer.
Where Spectrum Networks becomes liable to pay any Taxes, the Customer must pay Spectrum Networks the charges referred to in clause 5.2 plus an amount equal to the Taxes payable by Spectrum Networks. Spectrum Networks must identify the Taxes to be paid on each invoice.
6.7 GST: Spectrum Networks may charge an additional amount equal to the amount of its GST liability, at the time of invoice (unless the consideration for the supply is expressed in this Agreement to be GST inclusive). Where GST is charged, Spectrum Networks will provide a tax invoice, which will enable the Customer, where permitted, to claim a credit or refund of GST.
6.8 Where Spectrum Networks becomes liable to any penalties or interest as a result of the late payment of GST or any stamp or transaction duty (whether the relevant tax is included in an amount of consideration expressed in this Agreement or not), due to the Customer’s failure to comply with the terms of this Agreement (including this clause) or the Customer’s obligations under the GST Law, then an additional amount equal to those penalties and interest will be payable to Spectrum Networks.
6.9 Should the GST amount recovered by Spectrum Networks from the Customer in connection with any supply made differ to the GST liability either due to an amendment in the GST Law or an adjustment to the consideration under this Agreement, the parties will adjust the amount of GST and make any payments necessary to give effect to the adjustment.
6.10 If the rate of GST increases from that applying as at the date of this Agreement, Spectrum Networks may increase the consideration by the amount necessary to ensure that the economic benefit to it of this Agreement remains the same whatever the rate of GST is.
8.1 Subject to compliance with this clause 8, Spectrum Networks may, at any time in its absolute discretion:
9.1 The Customer acknowledges that:
(a) Suitability: it has relied on its own judgement to evaluate the suitability of the Services for the purpose for which it requires the Services;
(b) Commissions: Spectrum Networks may at its discretion pay commissions to any Spectrum Networks agent, representative or retailer who introduces the Customer to Spectrum Networks;
(c) Telephone Number: The Customer acknowledges that it will have no right, title or interest in any number allocated to it as part of the Services. Spectrum Networks will comply with the National Numbering Plan and reserves the right to alter or replace any number as a result of compliance with the National Numbering Plan or with any direction from the ACA. Spectrum Networks will notify the Customer of any numbering change affecting the Customer.
(d) Calling Line Identification: If the Customer does not bar CLI in respect of calls made from the Service, the Customer agrees that when a call is made from the Service, the Customer's telephone number may be sent automatically to the equipment of the called party. Customer further agrees that if a party calling the Service has not barred CLI from calls made from their equipment, the telephone number of the calling party may be displayed on the screen of the Customer's handset which receives the call, if the handset is technically capable of displaying CLI.
(e) Managed Router Service: In respect of Managed Router Services:
(f) Internet Services: In respect of Internet Services:
(g) Dedicated Voice Services: In relation to Dedicated Voice Services (DVS), the Recurring Charge for the Service is based on usage for either outbound or bi-directional calls. For the avoidance of doubt, use of the Service for inbound calls only, or bi-directional calls on a ratio of more than 10 inbound calls for every 1 outbound call, is deemed misuse of the Services for the purposes of clause 4.1(c).
(h) Colocation Services: The supply of Spectrum Networks colocation services are subject to Spectrum Networks’s standard terms & conditions for colocation services applicable to the grant of a non-exclusive use of space within a Spectrum Networks site.
10.1 Use of Services: The Customer will not use or allow others to use the Services to:
10.2 Indemnity: The Customer will indemnify Spectrum Networks against all costs, losses, damages, liabilities and expenses (including all reasonable legal costs, fees and expenses) incurred or suffered by Spectrum Networks as a result of any personal injury to, or death of, any person or any loss of, or damage to, any personal property (including without limitation the Equipment) caused by the Customer's breach of this Agreement or its negligent or unlawful act or omission.
Customer Equipment: Customer must ensure that any equipment that it uses in connection with the Services
11.2 Installation of Equipment: The Customer will assist Spectrum Networks to ensure that any Equipment necessary for the Customer to receive the Services and access the Spectrum Networks network is installed and programmed so that calls to destinations nominated by Spectrum Networks from time to time are, so far as possible, carried by Spectrum Networks's switched services network.
11.3 Authorisation: Customer authorises Spectrum Networks or its agents to disconnect, install or make amendments to any autodiallers or PABX programming at the Customer Premises in order for Spectrum Networks to provide the Services.
11.4 Customer Supply: The Customer will provide:
11.5 Access: The Customer will ensure that Spectrum Networks (or where relevant the lessor or licensor of the Equipment to Spectrum Networks) is provided with such access to the Equipment and Customer Premises during normal business hours as Spectrum Networks may request and at such other times as Customer and Spectrum Networks mutually agree. This right of access will not end until all the Equipment is returned to Spectrum Networks, even if this Agreement has terminated. After termination of this Agreement, the Customer must allow Spectrum Networks to retake possession of the Equipment. The Customer must ensure that Spectrum Networks's personnel are provided with a safe working environment while at Customer Premises. Spectrum Networks will ensure that its personnel comply with the Customer's reasonable directions while on the Customer Premises.
12.1 Property: Except as expressly provided by this Agreement :
12.2 Change of Equipment: Spectrum Networks may at any time and from time to time change, modify or service the Equipment.
12.3 Interference: The Customer will ensure that the Equipment will not be altered repaired, serviced or moved except by service personnel approved by Spectrum Networks. The Customer must take good care of the Equipment while it is in the Customer's possession. The Customer will be liable to Spectrum Networks for all loss of or damage to the Equipment while at the Customer Premises, apart from normal wear and tear.
12.4 Software Licence: Where Spectrum Networks, without obligation to do, elects at its discretion to supply the Customer with the Products, the Customer agrees and accepts the supply of the Products on the following terms:
(i) For the purpose of this clause,
End User means any person that the Customer has authorised to use the Products;
Spectrum Networks means Spectrum Networks Pty Limited (ACN 090 112 913 );
Software means the software provided by Spectrum Networks to the Customer for the purpose of analysis of Spectrum Networks’s billing information issued to the Customer; and
Products means the Software and related Products documentation;
(ii) Spectrum Networks grants to the Customer a non-exclusive and non-transferable licence (“Licence”) to use the Products. The Products may only be used by a single End User, on a single computer, at any one time. The Customer must notify Spectrum Networks from time to time if it wishes to increase the number of End Users, in which case the Customer will be required to obtain additional licences from Spectrum Networks at an extra charge to be agreed;
(iii) The Customer will be entitled to make up to a maximum of three (3) copies of the Software for back up purposes only and must include on each copy, all copyright and other notices included on the original. With the exception of the rights granted above, no right, title or interest in the Products will pass to the Customer;
(iv) The Customer agrees not to sub-licence, assign, transfer, alter, decompile, disassemble, reverse engineer, create derivative works from or recreate the software in whole or in part;
(v) This Licence will terminate immediately upon:
Upon termination of this Agreement, the Customer must return to Spectrum Networks, or delete and destroy, all copies of the Products;
(vi) Spectrum Networks does not warrant that the Software will be error free. The Customer acknowledges and agrees that the billing information available for downloading is located on a Spectrum Networks FTP server and that the FTP protocol does not encrypt the billing information;
(vii) To the extent permitted by law, and with the exception of third party claims relating to intellectual property infringement, Spectrum Networks exclude all liability whether in contract, tort (including negligence) or otherwise in respect of this Licence and the use of the Software;
(viii) Upon reasonable prior written notice, the Customer must provide Spectrum Networks with sufficient information to enable Spectrum Networks to independently verify that the number of licences granted to the Customer corresponds to the number of End Users. In the event that the number of End Users exceeds the number of licences granted to the Customer by Spectrum Networks, the Customer must, on demand, pay Spectrum Networks an amount per excess End User equal to Spectrum Networks then current retail price for the Product.
(ix) The parties acknowledge that Spectrum Networks has executed this Licence on its own behalf.
(x) This Licence is subject to the governing laws in the state of New South Wales.
13.1 If Spectrum Networks uses the services of an Other Supplier in providing the Services, the Customer agrees to comply with any reasonable direction of Spectrum Networks necessary to avoid causing any breach by Spectrum Networks of the relevant Other Supplier's terms and conditions of supply applicable to that service.
14.1 Except as expressly provided to the contrary in this Agreement and to the full extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Services supplied under this Agreement or Spectrum Networks’s obligations under this Agreement are excluded.
14.2 Where any Act of Parliament implies in this Agreement any term, and that Act of Parliament voids or prohibits provisions under a contract which exclude or modify the operation of such term, the term is deemed to be included in this Agreement.
14.3 To the extent permitted by law Spectrum Networks’s liability for breach of an express term or implied term of this Agreement in contract, negligence or any other tort under any statute or otherwise, is limited to one of the following remedies at Spectrum Networks’s discretion:
14.4 To the extent permitted by law, Spectrum Networks excludes all liability to the Customer in connection with this Agreement for consequential loss, indirect loss, loss of profits of any kind, loss or corruption of data, interruption to business, loss of revenue and economic loss of any kind, whether in contract, negligence or any other tort under any statute or otherwise.
14.5 To the extent permitted by law, the rebate provided under clauses 2.5, will be the Customer's sole remedy in respect of any event giving rise to Spectrum Networks’s failure to achieve any Service Level and Spectrum Networks excludes any other liability to the Customer in connection with this Agreement in respect of its failure to achieve any Service Levels, whether in contract, negligence or any other tort, under any statute or otherwise.
14.6 To the extent permitted by law, Spectrum Networks's aggregate liability to the Customer in connection with this Agreement in respect of all claims, whether in contract, negligence or any other tort, under any statute or otherwise, will not exceed the amount paid to Spectrum Networks by the Customer during the Minimum Term.
15.1 Confidential Information: Spectrum Networks retains all rights in the Confidential Information.
15.2 Non-Disclosure: The Customer will keep all Confidential Information confidential, will not disclose or allow any Confidential Information or the terms of this Agreement or Application for Service (including pricing) to be disclosed to any third party without Spectrum Networks’s prior written consent and will return it to Spectrum Networks on Spectrum Networks's request.
15.3 Use of Confidential Information: The Customer will not use Confidential Information or the terms of this Agreement, which the Customer acquires from Spectrum Networks for any purpose other than use of the Services or as otherwise expressly permitted by Spectrum Networks and, in particular, will not use Confidential Information in any way which may cause Spectrum Networks loss, whether by way of damage to Spectrum Networks's reputation, financial loss, or otherwise.
16.1 Spectrum Networks is not liable for any failure to perform, or for any delay in performing any of its obligations under this Agreement where the failure or delay is occasioned by strike or other industrial action; failure or delays by Other Suppliers; legislative or governmental prohibitions, restrictions, or delays in the granting of approvals, consents, permits, licences or authorities; fire, flood, war, cable cut or other causes whatsoever beyond Spectrum Networks's reasonable control.
17.1 The Customer may not assign or otherwise deal with the Customer's rights under this Agreement without Spectrum Networks’s prior written consent.
18.1 This Agreement is governed by and construed in accordance with the laws of New South Wales. The parties submit to the jurisdiction of the Courts of New South Wales and any court hearing appeals from those Courts.
18.2 This Agreement contains the whole understanding of the parties to the exclusion of any prior Agreement, representation or understanding relating to the Services.
18.3 A notice, approval or consent, to be issued under this Agreement must be in writing and in the absence of evidence to the contrary will be take to be received:
19 .1 Spectrum Networks reserves the right to at any time, without the prior consent of the Customer to:
and the Customer voluntary and irrevocably indemnifies, releases and otherwise holds harmless Spectrum Network from any matters and claims, including but not limited to liability for personal injury, property damage, infringement of confidentiality or intellectual property rights, any liability to any customer, supplier or third party in damages (including special, indirect or consequential damages, which damages will be deemed to include loss or revenue, loss or profit and opportunity loss) in respect of any act or omission of the Spectrum Networks.
19.2 Access to any rack space is at the sole discretion of Spectrum Networks, which may be refused at any time.