e-wire Internet Broadband Connect Customer Contract
(Standard Form of Agreement as at February 2007)
This is the Standard Contract between the Customer/Applicant and e-wire for the Supply of Broadband Connect Broadband Internet Services specified on the Application Form and applies to You as a user of the Service. The aim of this document is to ensure that You know both Your rights and obligations when using the Service as well as Our rights and obligations.
1. Application and Variation of the Contract.
1.1. This Contract is the terms on which We provide the Service to You and supersedes any previous Contracts set by Us. We may not modify the Contract at any time without prior approval from the Department of Communications, Information Technology and the Arts (DCITA). Should changes be approved at any time, notification will be given at least one month prior to the changes taking place through Your Default E-mail Address and posted on the front page of Our website. Any use of the Service after that publication will constitute an acceptance by you of that modification.
1.2. If we notify you of a proposed change that we consider detrimental to You, You may terminate the service provided you give Us at least 7 days written notice prior to the new agreement taking action. Under this clause, there will be no termination fee applied to contracts, however all equipment owned by e-wire must be returned.
2. Services.
2.1. Service Plans
2.1.1. We will supply you with one of the following Broadband Connect services as nominated by you:
2.1.1.1. Streamline – Speeds 512/256; Monthly download limit 0.5GB; Connection fee of $99 when no contract option selected; Monthly access fee of $29.50
2.1.1.2. XLR8 Streamline – Speeds 2,000/256; Monthly download limit 0.5GB; Connection fee of $99 when no contract option selected; Monthly access fee of $34.50
2.1.1.3. XLR8 Turbo – Speeds 2,000/256; Monthly download limit 10GB; Connection fee of $99 when no contract option selected; Monthly access fee of $44.50
2.1.1.4. Pro – Speeds 512/256; Monthly download limit 15GB; Connection fee of $99 when no contract option selected; Monthly access fee of $49.50
2.1.1.5. XLR8 Pro – Speeds 2,000/256; Monthly download limit 20GB; Connection fee of $99 when no contract option selected; Monthly access fee of $54.50
2.1.1.6. Ultimate – Speeds 512/256; Monthly download limit 30GB; Connection fee of $99 when no contract option selected; Monthly access fee of $59.50
2.1.1.7. XLR8 Ultimate – Speeds 2,000/256; Monthly download limit 40GB; Connection fee of $99 when no contract option selected; Monthly access fee of $64.50
2.2. Speeds
2.2.1. Advertised speeds are stated in kbps and are peak achievable Download and Upload rates.
2.2.2. The expected average download and upload speeds will be not less than 80% of the nominated peak speeds as measured according to a prescribed Broadband Connect testing schedule.
2.3. Traffic Limits
2.3.1. Traffic is measured on the combined total of Your Downloads of all General and Local Traffic. Once Your Download Limit is reached, Your Account, comprising all Traffic types, is placed on Cruise Control until the end of that calendar month.
2.3.2. We have made available an online usage monitor for Your convenience at http://usage.e-wire.net.au. Usage information will be updated at least once per day. It is Your responsibility to keep Your usage in check. We do not give you prior notification if you are close to reaching your Traffic Limit.
2.4. Continuity of Service
2.4.1. We do not take responsibility for any loss, damage, liability or expense resulting from the lack of continuous provision of Service.
2.4.2. E-wire cannot guarantee connection to any particular Internet site, however the service will be available at least 99 per cent of the time, averaged over a quarterly period.
2.5. E-mail Capacity
2.5.1. E-mails sent and received through the e-wire network can be no larger than 8MB inclusive of Attachments and Encapsulation.
2.5.2. Sending an e-mail to multiple recipients has been limited to 35 at a time in order to control ‘Spamming’ on our network.
2.6. Monitoring
2.6.1. Where it is deemed necessary in order to comply with legal obligations, e-wire may monitor data access while transmitted by you while using the Service.
2.6.2. We may take any steps deemed necessary to comply with legal obligations under the relevant state or federal legislations, industrial code of practice or under directions of regulatory authorities or court order.
2.7. Changing of plan levels
2.7.1. Upgrading
2.7.1.1. To Upgrade Your account, You must provide a written request stating Your current account and the account You wish to upgrade to with authorisation to deduct the new amount from your nominated account if automatic payments have been arranged. You must also state whether You wish to be upgraded immediately or from Your next Billing Cycle.
2.7.1.1.1. To upgrade immediately, payment must be received for the difference between the two accounts for the remainder of Your current Billing Cycle prior to the account being upgraded.
2.7.1.1.2. When upgrading from Your next Billing Cycle, You will be invoiced prior to the commencement of Your next Billing Cycle reflecting these changes.
2.7.1.2. Upgrading Your Account will not affect the length of Your Contract or your right to a Broadband Connect service for the three year period.
2.7.2. Downgrading
2.7.2.1. To Downgrade Your account, an administration fee of $25 is payable.
2.7.2.2. To Downgrade Your account, You must provide a written request stating Your current account and the account You wish to downgrade to with authorisation to deduct the new amount from your nominated account if automatic payments have been arranged. Your new nominated account will take effect from Your next Billing Cycle.
2.7.2.3. You will be invoiced prior to the commencement of Your next Billing Cycle reflecting these changes.
2.7.2.4. While under a contract, You may not downgrade to a lesser priced plan than the plan You were originally contracted to.
3. Billing.
3.1. All prices quoted on Our promotional material are GST inclusive.
3.2. e-wire will not amend any or all of its Broadband Connect services at any time, without prior approval of DCITA. Broadband Connect performance requirements may not be changed and the three year price can not exceed that approved by DCITA at the time of Broadband Connect registration. Notification will be given at least one month prior to the changes taking place through Your Default E-mail Address. Any use of the Service after that publication will constitute an acceptance by you of that modification. You may terminate the service provided you give Us at least 7 days written notice prior to the new plans taking action. Under this clause, there will be no termination fee applied to contracts, however all equipment owned by e-wire must be returned where the service has not been provided for a period of at least 18 months.
3.3. Account Payments
3.3.1. All accounts must be paid through Direct Debit or an accepted Credit Card only. E-wire has the right to decline any other types of payment.
3.3.2. We reserve the right to disclose your credit card details to, and obtain information from, any financial institution or credit card issuer to verify the credit card details.
3.3.3. The initial payment is made in advance and must be cleared prior to the Account being activated for use.
3.3.4. All ongoing payments are payable in advance and are calculated on a calendar month basis. Any additional fees and charges that might be incurred will be payable in Arrears. All Automatic Payments will be deducted in the first week of the payment period cycle.
3.3.5. We must be notified of any changes that are required to Your Automatic Payment details at least 7 day prior to Your next Billing Cycle.
3.3.6. If you remain suspended for an entire calendar month, You are still required to pay for the provision of the Service in that month. If payment for Services have not been received for 60 days, your account will be closed.
3.4. Additional Charges may apply in the following circumstances:
3.4.1. If incorrect account details have been given, sufficient funds are unavailable or changes to account details are not passed on to Us.
3.4.2. Where Your account is suspended for any reason under this agreement.
3.4.3. If automatic payments have not been selected, it is Your responsibility to pay all monies owing on Your Account by the due date. If payment has not been received, Your account will be suspended until full payment has been received.
3.4.4. Any expenses, cost, or disbursements incurred by Us in recovering any outstanding monies including dishonour fees, debt collection, agency fees or legal fees.
3.4.5. To re-activate a closed account, a re-connection fee will apply.
3.4.6. Sending out of hard-copy invoices
3.4.7. Failure of the customer to be sufficiently prepared for a professional install as per clause 6.
3.5. It is your responsibility to pay all monies invoiced by the due date, even if the charges are the result of unauthorised access to Your Service.
3.6. You may request Your account to be placed on hold for a minimum of 1 calendar month, paying only for access to Your Webmail Service. Your Internet Service from this account will be Suspended for the time Your Account is on hold. A minimum of 7 days Written Notice is required prior to the beginning of the hold period being requested.
4. Customer Responsibilities.
4.1. The Account Holder must be 18 years of age or older.
4.2. If the Customer allows a person under the age of 18 to use the Service then the Customer is legally responsible for supervising that person’s usage particularly to ensure the suitability of content transmitted to and seen by that person.
4.3. It is the Customer’s responsibility to ensure that their computer meets the minimum specification to connect to the Service, including any Software and Hardware requirements.
4.4. The Customer must not connect any unauthorised equipment to the Service.
4.5. The Customer is asked to regularly check Their Default E-mail Address for any correspondence from Us about Your Service.
4.6. Security
4.6.1. e-wire will allocate a fixed User ID to the Customer.
4.6.2. The Customer agrees to keep their password confidential and acknowledges that it is liable for all charges associated with the Service resulting from the use of that password. e-wire assumes no liability for unlawful use of the Customer’s password even in the event of it being lost or stolen and in those circumstances the Customer agrees to immediately notify e-wire of such loss or theft. On application to e-wire the Customer may change their password at any time.
4.6.3. Unauthorised access of Your Service via an unprotected connection (including wireless interception) is the sole responsibility of the Customer. It is recommended that you take necessary measures to protect Your equipment and Service from unauthorised access.
4.6.4. The customer acknowledges that e-wire cannot fully protect Your computer, software and data from viruses and other malicious programs, it is therefore the Customers responsibility to take necessary preventative measures.
4.7. The Customer acknowledges that some material on the Internet may be offensive, inappropriate or unsuitable and agrees that e-wire has no responsibility whatsoever for such material. Additionally the Customer hereby agrees that in using the Service the Customer must not:
4.7.1. use the Service to commit any fraud, or undertake any illegal or unlawful or offensive activity or breach any Australian legislation, codes of conduct or standards established for the Internet Service Industry;
4.7.2. transmit, store or place on the Internet any content which is defamatory, offensive or of an obscene and menacing character;
4.7.3. place on the Internet or issue invitations to give directions (including hyperlinks) to illegal content or potentially illegal content;
4.7.4. disseminate computer viruses or other malicious programs
4.7.5. engage in conduct so as to interfere with or disrupt any other Internet users or service providers;
4.7.6. engage in sending unsolicited emails, spamming and advertising material;
4.7.7. talk about hacking or about breaching any laws, talk of or engage in any conduct that may contravene any e-wire Policy (including but not being limited to any Acceptable User Policy that we may have and our Privacy Policy) and any other Policies or Practice to which e-wire may subscribe from time to time including Codes of the Internet Industry Association of Australia; and
4.7.8. not engage in any unauthorised use of any material protected by patent, copyright, trademark or other intellectual property rights.
4.8. The Customer shall indemnify and hold harmless e-wire from and against any action, claim or loss that e-wire may suffer or may have brought against it as a result of the Customer breaching the Contract, including but not being limited to those listed in Clause 4.7.
4.9. Where Your continued use of the Service adversely affects the network, We reserve the right to suspend/control the Service.
4.10. Any persons that use Your Service have read and understand the Contract.
5. Our Responsibilities.
5.1. Network outages may occur from time-to-time that may result in the Customer suffering from Downtime. In the case of scheduled maintenance outages, all Customers who may be affected will be notified through Their Default E-mail Address no later than 7 days prior to the scheduled outage, unless the scheduled outage is for emergency maintenance where You will be notified as soon as is practically possible.
5.2. Connection of Service
5.2.1. Given that all required cabling is completed and active, and we have received an application form from which payment has been successfully processed, connection to the Service will be provided within ten working days.
5.3. Outages
5.3.1. We will endeavour to restore Services resulting from a System-Wide Outage within 12 hours, a Community-Wide Outage within 24 hours and an Individual Outage within 48 hours of initial report.
5.3.2. Restoration of Services resulting from Outages, where possible will be kept within indicated times, but may vary in the event of exceptional circumstances.
5.4. If e-wire provides a Customer with a link to another web site or resource, e-wire will not be responsible for the content of those web sites or resources and e-wire makes no warranties or representations as to the accuracy of any information in or linked to its web site and assumes no liability or responsibility for any errors or omissions in content thereof. Additionally e-wire will not be responsible for the content or form of any information or data passed into the Internet in the provisions of the Service including any information which is defamatory, offensive, unlawful or unsuitable for people under 18 years or for any one in particular. Nor will it be liable for any damage to or viruses which may infect, contaminate or act to the detriment of any computer equipment or other equipment owned or utilised by the Customer.
5.5. e-wire provides the Service in accordance with its Privacy Policy which is available on request.
6. Installation.
6.1. Where Self Installation is to be undertaken by the customer -
6.1.1. You should ensure that your computer meets the requirements set by e-wire including any hardware and software needed to use the Service.
6.1.2. That prior to installation, you have all original operating system installation media.
6.1.3. It is your responsibility to create a backup of all essential files in case of loss or corruption of data.
6.1.4. If you are having problems installing the CPE yourself, you may make use of our Support facilities as outlined in Clause 10.0
6.1.5. If you continue to have problems with installation of CPE after talking to Support, We may recommend that one of Our technicians performs a Professional or Premium Professional Install, for which you will be charged standard rates.
6.2. Professional Install (Maximum fee of $66 applies):- prior to an e-wire technician arriving at the premises, You must ensure that:
6.2.1. your computer meets the requirements set by e-wire including any hardware and software needed to use the Service.
6.2.2. Prior to installation, make sure that you have all original operating system installation media.
6.2.3. It is your responsibility to create a backup of all essential files in case of loss or corruption of data.
6.2.4. The computer must be located within two (2) metres of the cable modem point. If the computer is located at a further distance you must notify e-wire when booking a time with the technician so that they can prepare a longer connection lead. Non-standard connection leads will attract a per metre charge.
6.3. Premium Professional Install (Price on application):- in addition to the requirements under Clause 6.2, You must ensure that:
6.3.1. a network connection is available to all computers, including an operational network card in each computer.
6.3.2. if the computers are located in different rooms, all network connections must be brought to the room where the cable modem point is located, preferably through some type of structured cabling installed in the premises.
6.3.3. sufficient sets and length of network cable (CAT 5) is provided.
6.3.4. additional power points for CPE are available.
6.4. Where we specify a time for your installation, we will try to keep to the specified time, but we cannot be liable for any loss or damage you suffer if we fail to do so.
6.5. Where an installation cannot be performed due to the failure of the Customer to provide the above, an additional charge may be made.
7. Commencement of the Contract and the Service.
7.1. The Contract is active from the date the Application Form is signed. E-wire may deduct any initial setup costs including the cost of the Service over the initial Billing Period between the activation of the Contract and the commencement of the Service.
7.2. The provision of Service will commence once all of the following criteria have been met:
7.2.1. Cable infrastructure has been installed and tested OK.
7.2.2. The Application Form including customer attestation has been completed fully and accurately.
7.2.3. Payment of the initial setup costs including the cost of the Service over the initial Billing Period has been successfully processed.
7.2.4. You have received/collected the CPE from e-wire.
8. Abuse Procedures will be commenced by -
8.1. giving an unauthorised person the Customer’s account and password details;
8.2. deliberately or recklessly disrupting e-wire’ Service or activities, or engaging in any activity likely to disrupt the same, either deliberately or not;
8.3. engaging in spamming;
8.4. misusing access to the Internet in a manner identified in writing by a competent law enforcement official as unlawful;
8.5. using access to the Internet to menace or harass others;
8.6. behaviour that results in the disruption of other people’s access to the Internet or their enjoyment thereof, including but not being limited to computer viruses, email bombardment and damage to Internet-connected resources and channel flooding;
8.7. using access to the Internet to unlawfully obtain access to other networks.
9. Suspension or Termination of Service.
9.1. by User
9.1.1. The User can terminate the account at any time, providing You provide Us with Written Notification at least 7 days prior to the next billing cycle.
9.1.2. If an account is closed while still in contract, termination fees will apply.
9.1.3. Any pre-paid fees for Services are non-refundable on termination.
9.1.4. In some cases a cooling off period is required by law. If You are covered by a cooling off period, you may terminate the Service without penalty if you provide Written Notification to e-wire within the timeframe allowed from the commencement of the SFoA.
9.2. by e-wire
9.2.1. Any breach of the Contract, As opposed to termination, e-wire may choose to suspend the Service for such period it determines.
9.2.2. e-wire supports the right to privacy and the laws that support privacy in all forms and it strictly prohibits the sending of unsolicited mass messages of any kind or any other e-mail forms. We will terminate the account of any member who uses “spamming” techniques to solicit referrals and who does not remove a recipient upon being requested to do so by that recipient.
9.2.3. If e-wire suspends Your Service for any breaches under this agreement, you shall remain liable for all charges due throughout the period of suspension. A fee may apply.
9.2.4. Upon the death of the Account holder, the account shall be deemed terminated.
9.2.5. If e-wire terminates an account whilst in contract, a termination fee may be applied if termination is resulting from the misuse of the Service.
9.3. If the account is terminated, You remain liable for all charges payable under the agreement in respect of the provision of services from the time of termination to the end of the Billing Cycle or Contract Period.
10. Ownership and Use of the Equipment and Facilities.
10.1. The e-wire Broadband Network is an important part of our ability to provide you with the Service. This means that we need to make sure that the Broadband Network remains our absolute property at all times. The boundary of our Broadband Network is at the Cable Modem Point in the Premises.
10.2. Internet connections can only be made to Cable Modem Points installed by e-wire authorised installers.
10.3. All new CPE provided by e-wire is covered by a 12 month limited warranty.
10.4. All CPE provided by e-wire remains the property of e-wire until completion of 18 months of service provision. If the Customer terminates their account prior to the service being provided for 18 months, the equipment must be returned to e-wire. Standard termination fees apply, equal to half that of the contracted plan level, over the remaining unpaid months of the term. Any remaining paid months that have not been used will be forfeited.
10.5. All CPE owned by e-wire, including but not limited to loan stock and ITP’s, must be maintained in good condition and repair. e-wire will, at all times, retain ownership of this equipment. e-wire may charge the Account Holder any reasonable costs incurred for repairing or replacing the equipment if damaged, lost or stolen.
11. Internet Support Facilities.
11.1. We provide You with an Internet support service from 7AM-11PM 7 days per week, year round. Support hours are liable to change at any time. If e-wire deems these changes as detrimental to you, you will be notified through Your Default e-mail Address.
11.1.1. If you are experiencing any difficulty with your access, you can contact support:
11.1.1.1. By phone on 1300 135 231
11.1.1.2. By e-mail on support@e-wire.net.au
11.1.1.3. Via webmail through www.e-wire.net.au (contact us)
11.1.1.4. By Fax on 08 9249 8858
11.1.2. We encourage you to make use of this free service for genuine service issues. As our support technicians are trained to solve broadband Internet issues, we ask that you acknowledge that:
11.1.2.1. We cannot offer support for networking multiple PC’s;
11.1.2.2. We cannot offer support for general software issues;
11.1.2.3. We cannot offer support for general hardware.
11.2. In an effort to control spam, e-wire constantly monitors and excludes known spam ports. In addition, e-wire provides spam monitoring facilities such as SPAMcop. This does not prevent all spam from being received, however it does reduce the sheer amount of spam to your mailbox.
12. Contract period.
12.1. You may contract us to provide you with a Broadband Connect service on either an 18 month or no month basis, depending on the setup cost option taken. Once the initial contracted period ends, you will be contracted to e-wire on a month by month basis.
12.2. We are obliged to provide a Broadband Connect eligible service to you for a minimum of three (3) years from the date of activation of Your service. We must supply the service to you at or below the price registered and specified for the service in the Broadband Connect Provider’s Agreement with DCITA for a minimum of three years from the date the service is first supplied to you, provided you wish to continue to receive the Service and renew the Contract.
12.3. Termination of a Broadband Connect service
12.3.1. Broadband Connect does not place any restriction on termination by a Customer of a Broadband Connect service. You, the Customer are only bound by your Contract with us, your service provider as would be the case with any other commercial arrangement.
12.3.2. Customers should be aware that with the exception of a Not-for-profit Organisation providing a Public Access Internet Facility, only one Broadband Connect Service may be provided to an Eligible Premises at any one time for each type of Eligible Customer.
12.3.3. Broadband Connect does not place restrictions on a Customer leaving one Broadband Connect Provider for another Service Provider (i.e. churning), whether to a Broadband Connect Provider or otherwise. Where a Customer does this, no Broadband Connect Incentive Payment will be payable to the new Service Provider, and there is no obligation on the new provider to offer Broadband Connect Terms and Conditions to the Customer.
13. Complaints Procedure.
13.1. If you wish to lodge a complaint about our services or associated matters, you may contact us via e-mail, post, phone or fax, or via our online complaints form.
13.2. If you are dissatisfied with the outcome of your complaint, you may request to have your complaint escalated to be dealt with by a manager.
13.3. As a last resort, you can lodge a complaint through the Telecommunications Industry Ombudsman (TIO), which you can lodge online at http://www.tio.com.au.
14. Force Majeure.
14.1. If either Party is unable, as a result of Force Majeure, to carry out their obligations under this Agreement, they shall give the other Party prompt written notice of the occurrence and particulars of the act, event or cause constituting the Force Majeure and, in so far as known, the probable extent to which it will be unable to carry out, or be delayed in carrying out its obligations and thereupon will not be required to carry out such obligations for the period provided the Party has used all possible diligence to overcome or remedy the Force Majeure as quickly as possible.
15. Proper Law And Jurisdiction.
15.1. The laws in Western Australia shall govern this Agreement and the parties submit to the non-exclusive jurisdiction of the Courts of that State.
Definitions
Agreement
Your SFoA, Your Application, and Broadband Connect or Bundling contract if required.
Attachments
Any files or documents that are attached to an e-mail.
Billing Cycle
The Customer’s selected billing period option (monthly, quarterly or annually).
Community-Wide Outage
An outage that results in downtime, affecting an entire e-wire community.
CPE
Consumer Premises Equipment (e.g. Modems, Routers, Wireless Equipment, etc).
Cruise Control
Where the connection speed is reduced to simulated dial-up speeds.
Default E-mail Address
The e-mail address that you have specified to be the main e-wire e-mail address.
Defined Abuse
The misuse of Service and access to the Internet as per Clause 8.0.
Direct Debit
A payment method by which You authorise Us to deduct a set amount every Payment Period directly from your nominated bank account.
Download
Any data that is received by your computer from the Internet.
Downtime
The period in which a customer cannot gain access to the Service due to network outages.
e-wire, Us, Our
e-wire (a division of Broadcast Engineering Services (Australia) Pty Ltd – ABN 29 066 971 533).
Encapsulation
Coding and encryption of your e-mail when sent.
Force Majeure
means any act, event or cause beyond the reasonable control of the party concerned including, but not limited to, acts of God, perils of the sea, war, sabotage, riot, storm and tempest, earthquake, landslide, explosion, strike and other labour difficulties (whether or not involving employees of the party concerned) or failure of the internet or world wide web.
General Traffic
All traffic that is not classified as Local or Internal Traffic.
Broadband Connect
A Federally funded initiative that provides funding to Broadband Connect registered ISP’s to provide Services to Broadband Connect eligible areas.
Individual Outage
An outage that results in downtime, affecting an individual premises or street.
Internal Traffic
All traffic that does not leave the e-wire network.
ITP
Information Technology Package available to selected communities.
kbps
kilobits per second
Local Traffic
All traffic that travels through the WAIX network.
Outage
The inability to deliver the Service.
Premises
The physical address where the Service is connected.
Spamming
Spamming is the unsolicited and unauthorised sending of messages of any kind to businesses and people who do not know you personally and have not agreed to receive your messages.
System-Wide Outage
An outage that results in downtime, affecting the entire e-wire Internet network
Traffic Limits
The total allowable data transferred through your account over a calendar month
Upload
Any data that is sent by your computer to the Internet
WAIX
Western Australian Internet eXchange. Information on the WAIX network is available from www.waio.org.au.
Written Notification
Acceptable Written Notification is e-mail, fax or registered mail
You, Your, Customer, Applicant
The account holder as stated on application.