Spacelink STANDARD AGREEMENT FOR INTERNET SERVICES
(incorporating summary of Standard Agreement)
SECTION 1: DEFINITIONS
1.1 “Spacelink” means Spacelink Communications Pty Ltd ABN 52 093 139 096, its successors and assigns.
1.2 “Application” means the electronic, paper, voice or other form of application lodged by You.
1.3 “You” means the person named in the Application.
1.4 “Internet Acvccess” means connection to the Internet using hardware, software and protocols supported by Spacelink, and use of any additional services provided by Spacelink.
1.5 “Customer” means any person who has entered into an Agreement with Spacelink for the purpose of provision of Internet Access.
1.6 “Charges” mean all Charges due to Spacelink for use of the Internet Access, in accordance with this Agreement.
1.7 “Plan Period” means the duration of the Internet Access plan You have nominated.
1.8 “Material” means information sent or received through the Internet Access. This includes without limitation text, graphics, software, sound, video, e-mail, and any other form of electronic information.
1.9 “Storage Facility” means any facility provided by Spacelink, which allows You to store information, including but not limited to Your e-mail mailbox and Web space.
1.10 “Equipment” means any hardware or related goods supplied to You by Spacelink for use with the Internet Access.
1.11 This “ Agreement” means the Application, together with these terms and conditions and Your nominated Internet Access plan, as published on the Spacelink web page and as may be varied from time to time.
1.12 “Implied Term” means a term implied into this Agreement by consumer protection legislation and which such legislation prohibits from being excluded, modified or restricted.
SECTION 2: PRICES CHARGES AND BILLING
2.1 You must pay to Spacelink:
2.1.1 all Charges for the Internet Access as advised to You by Spacelink within the time specified for payment on the invoice.
2.1.2 any Goods and Services Tax (GST) (or like imposition) associated with this Agreement.
2.2 Each Plan Period is charged in advance. Any additional Charges accrued during a given Plan Period are charged subsequent to the Plan Period.
2.3 Spacelink may change the Charges at any time (but will not change any Charges which have already been incurred). It is Your responsibility to make sure You are aware of these changes, as published on the Spacelink Web page.
2.4 Where You have nominated credit card payments, to the extent permitted by law You irrevocably authorise Spacelink to:
2.4.1 automatically debit the Charges for the first Plan Period and subsequent Plan Periods against Your credit card;
2.4.2 automatically debit any outstanding Charges against Your credit card at any time, including after termination or suspension of the Internet Access;
2.4.3 disclose Your personal and financial details to a financial institution or credit card issuer in order to verify Your details, and determine Your ability to pay the account.
2.5 You are responsible for providing and paying for all communication, connection and usage Charges (including without limitation telephone charges, line charges, ISDN charges and other charges involved in the connection between Your premises and the point of presence used for the Internet Access), modems, hardware, software, and other devices (other than the Equipment) necessary for use of the Internet Access.
2.6 You are responsible for ensuring the telephone number You are dialling to connect to the Internet Access is a local call.
2.7 Download volume calculations include all Material transferred to Your computer through the Internet Access.
2.8 Upload volume calculations include all Material transferred from Your computer through the Internet Access.
2.9 You must pay disputed Charges. A credit may, at Spacelink' discretion, be issued at a later date.
2.10 Where You dispute the Charges, You must notify Spacelink immediately after receiving Your bill or credit card statement.
2.11 You are responsible for all costs associated with Material or other products and services obtained from third parties through the Internet Access.
2.12 Where Your account is overdue, Spacelink may apply an overdue charge.
2.13 Termination of Your Internet Access before the end of Your Plan Period may incur an administration fee.
2.14 Spacelink pre-selection discounts only apply while the customer's phone is pre-selected to Spacelink. If the pre-selection is cancelled at any point during the term of the contract, the discount will be withdrawn and plan value will be charged at full price.
SECTION 3: TERMINATION AND SUSPENSION OF ACCOUNTS
3.1 Spacelink may, at its discretion, immediately suspend or terminate the Internet Access without notice in the following circumstances:
3.1.1 during any investigation of alleged Defined Abuse;
3.1.2 where You fail to pay the Charges;
3.1.3 where Your financial position is significantly changed, including without limitation, bankruptcy, insolvency, a winding up application or the appointment of a receiver;
3.1.4 in an emergency or to safeguard the provision of services to any Customer;
3.1.5 if You breach this Agreement;
3.1.6 where You have provided any misleading, false or incomplete information to Spacelink;
3.1.7 where Your nominated payment method is refused or dishonoured by Your nominated financial institution;
3.1.8 where You fail to notify Spacelink of a relevant change to Your personal details.
3.2 Spacelink is not required to issue You a refund if the account is suspended or terminated for any of the reasons in clause 3.1, except as required by law.
3.3 Your Internet Access will continue until the Internet Access is terminated in accordance with this Agreement.
3.4 You may terminate or suspend the Internet Access at any time by giving written notice to Spacelink. The termination or suspension will take effect at the end of Your current Plan Period. You will not be issued a credit or refund for any unused Internet Access, except as required by law.
3.4.1 In the event that written notice of termination is not given, Spacelink will continue to charge untill such time that written notice is recieved. Receipt of termination WILL be provided upon sucessful termination of Your account as proof of termination. Rapid transfer to another provider DOES NOT constitute termination of Your connection.
3.5 Spacelink may terminate the Internet Access without cause by giving 24 hours written notice to You. You may apply for a pro-rata refund for any Charges already paid by You. Spacelink may levy a reasonable fee for any costs incurred as a result of the early termination.
3.6 Spacelink may delete any Storage Facilities used by You on termination or suspension of this Agreement.
3.7 All Equipment remains the property of Spacelink and must be returned after termination of this Agreement.
SECTION 4: USE OF THE SERVICE
4.1 Spacelink will provide You with a unique username and password, which You agree not to disclose to any third party.
4.2 You are not authorized to use the Internet Access unless Your Application has been accepted by Spacelink.
4.3 You will supervise any minors who use the Internet Access. You understand that Material obtainable through the Internet Access may not be suitable for minors.
4.4 You must not modify Your username. Spacelink may modify Your username at its discretion.
4.5 You must not maintain or permit multiple concurrent connections to the Internet Access.
4.6 To the extent permitted by law, Spacelink may monitor Material You transfer through the Internet Access. This information may be disclosed to third parties without notice.
4.7 You must not resell the Internet Access.
4.8 You are responsible for maintenance and care of equipment You use to connect to the Internet Access, including backup of all information (including without limitation software and data).
4.9 Spacelink may disconnect You from the Internet Access after four hours connection or 20 minutes of idle time. You can immediately reconnect after the disconnection.
4.10 Where Your use of any Storage Facilities exceeds specified limits, Spacelink may remove any of the stored information without notice. This includes, without limitation, information in Your e-mail mailbox and Your personal Web space.
4.11 Spacelink may delete e-mail sent to or from You where:
4.11.1 individual messages are greater than a specified limit;
4.11.2 messages remain on Spacelink servers for more than 90 days.
4.12 You must not connect a sub-network to the Internet Access, unless Spacelink expressly allows otherwise in writing, including without limitation hosting of FTP, SMTP, HTTP and Proxy Services.
4.13 You must not engage in Defined Abuse.
SECTION 5: ACCOUNT SECURITY & ABUSE
5.1 You are responsible for ensuring the security of Your account by:
5.1.1 exercising due care when choosing passwords;
5.1.2 choosing passwords which contain both letters and numbers;
5.1.3 regularly changing Your password;
5.1.4 never recording Your password on Your computer, and safely storing Your password;
5.1.5 ensuring that Your computer system is up to date and secure;
5.1.6 maintaining current anti-virus, firewall and other appropriate security measures;
5.1.7 exercising due care when using and retrieving Material through the Internet Access.
5.2 You are entirely responsible for all use of the Internet Access by any person using Your username and password.
5.3 “Defined Abuse” means misuse of the Internet Access by:
5.3.1 intentionally providing false information to Spacelink;
5.3.2 using or distributing a Customer's username and password;
5.3.3 engaging in the practice known as 'spamming';
5.3.4 using the Internet Access in an unlawful manner;
5.3.5 using the Internet Access to menace or harass others;
5.3.6 unauthorised or fraudulent usage of the Internet Access;
5.3.7 the use or distribution of components designed to compromise system security. This includes credit card generators, password guessers, crackers, packet sniffers, network probes, and other such components;
5.3.8 deliberate or reckless disruption of Spacelink' services or disruption of a Customer's Internet Access. This includes damage to Internet connected resources, Denial of Service attacks, hacking, distributing computer viruses and e-mail bombardment.
5.3.9 providing illegal, indecent, pornographic, fraudulent, threatening, damaging or misleading material, or information about how to obtain such material through Your personal Web space or any other means
5.3.10 engaging in unauthorized activities in relation to other peoples' intellectual property; or
5.3.11 any other manner reasonably determined by Spacelink.
5.4 Spacelink may take reasonable steps to investigate an allegation of Defined Abuse.
5.5 Where You are found to have engaged in Defined Abuse (without prejudice to Spacelink' other rights):
5.5.1 Spacelink may provide Your particulars to any third party affected by Your conduct;
5.5.2 Spacelink may charge You $100 per hour for time spent investigating the Defined Abuse;
5.5.3 Spacelink may charge You $5.00 per hour for use of the Internet Access;
5.5.4 any Storage Facility You utilised may be removed without notice;
5.5.5 Spacelink may immediately terminate this Agreement without notice.
SECTION 6: GENERAL
6.1 You may use the Internet Access only for personal, non–commercial purposes, unless expressly permitted otherwise in writing.
6.2 You warrant that You are an individual, are over 18 years of age and are authorized to enter into this Agreement.
6.3 Use of the Internet Access constitutes unconditional acceptance of this Agreement by You.
6.4 Spacelink may vary this Agreement at any time. It is Your responsibility to make sure that You are aware of these changes, as notified to You or as published on the Spacelink web page. Continued use of the Internet Access constitutes acceptance by You of any changes.
6.5 Failure by Spacelink to act immediately on any right under this Agreement does not waive any such right.
6.6 You warrant that all information You provide to Spacelink is true and correct. You must notify Spacelink immediately should any relevant details change.
6.7 Unless agreed otherwise by Spacelink, You are the only person authorized to request account information, make account changes, or receive customer service or support.
6.8 Bonus Hours are additional hours Internet Access provided only to new Customers on selected plans. Bonus Hours must be used within the period specified, and are not redeemable or refundable.
6.9 For the duration of this Agreement, You shall provide Spacelink, free of charge, with all assistance, information, access, facilities and services reasonably required by Spacelink to enable it effectively to exercise its rights or perform its obligations under this Agreement.
6.10 You may not assign Your rights or obligations under this Agreement without the prior written consent of Spacelink. Spacelink may assign its rights and obligations under this Agreement at any time without Your consent.
6.11 If any provision of this Agreement is void, unenforceable, invalid or illegal, that provision shall be deemed deleted and the remainder of this Agreement shall remain in full force and effect.
SECTION 7: GOVERNING LAW AND JURISDICTION
7.1 The laws of Victoria govern this Agreement. Each party submits to the jurisdiction of the Victorian Courts and Tribunals.
7.2 This Agreement contains the entire understanding between You and Spacelink. No other written or verbal correspondence affects the meaning or interpretation of this document.
7.3 Where software is supplied to You by Spacelink, You agree to abide by any associated copyright and licensing restrictions including but not limited to, the number of computers the software is installed on, sublicensing the software and assignment of Your rights and obligations to the software.
SECTION 8: LIABILITY
8.1 The liability of Spacelink in respect of a breach of an Implied Term relating to the supply of any goods or services is to the full extent permitted by law limited to, at Spacelink' option:
8.1.1 in the case of goods, any one or more of the following: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; and the payment of the cost of having the goods repaired; and
8.1.2 in the case of services: the supply of the services again; or the payment of the cost of having the services supplied again.
8.2 Subject to any law to the contrary and clause 8.1:
8.2.1 You agree that Spacelink' liability in relation to any claim, loss or damage and any associated costs whether arising under or in relation to this Agreement, any tortious act or omission (including without limitation negligence) or under common law or statute, is excluded;
8.2.2 the parties exclude any term, condition, warranty or representation which is not expressed in this Agreement (other than an Implied Term); and
8.2.3 Spacelink is not liable to You or any other person for any loss or damage (including but not limited to any loss of profits, business or anticipated savings or any other form of indirect or consequential loss), either in negligence, other tort, breach of contract, breach of warranty or for any other reason or cause whatsoever, in relation to this Agreement.
8.3 Subject to this Agreement and any law to the contrary, You: (a) acknowledge and agree that all relevant products and services supplied to You are not suitable for (and are not supplied for the purpose of) supporting any application which needs continuous or fault free service; (b) are responsible for making Your own assessment of whether You need continuous and fault free services and obtaining and implementing advice about alternative services suitable for such purposes; and (c) release Spacelink and its related bodies corporate and their respective officers, employees, contractors and agents (the “ Released Persons ”) from all claims arising out of or in connection with all products and services.
8.4 You indemnify Spacelink and its related bodies corporate and their respective officers, employees, contractors and agents (collectively the “ Indemnified Parties ”) from any loss, injury, damage, liability, costs or expenses whatsoever suffered or incurred by the Indemnified Parties arising from or in connection with:
8.4.1 any breach of, or failure to comply with, the terms of this Agreement by You;
8.4.2 any damage to the Indemnified Party's network or other damage to property or persons caused by You or any person using the Internet Access (a “ Permitted User ”);
8.4.3 the use of the Internet Access by You or a Permitted User;
8.4.4 the reproduction, broadcast, use, transmission, communication or making available of any Material by You or a Permitted User, using the Internet Access;
8.4.5 any alleged breach of a person's rights (including, but not limited to, defamation and intellectual property rights) through use of the Internet Access by You or a Permitted User; and
8.4.6 any equipment or a facility owned or controlled by You which causes a fault in, or interferes with, the operation of any system or network owned or operated by Spacelink.
8.5 All information, advice or software is provided to You on an ”as is” basis. Spacelink is not responsible for any losses resulting in its provision or use.
8.6 If Your activities (in Spacelink' judgment) unreasonably restrict, inhibit, or degrade any other Customer's use of the Services, or represent an unusually large burden on Spacelink' staff or the Spacelink network, Spacelink may terminate or suspend this Agreement.
8.7 You must ensure that Your software, computer and communications equipment is compatible with Spacelink' systems.
8.8 Spacelink shall not be liable for the consequences of an occurrence of any event beyond its reasonable control and such event shall not amount to a breach of this Agreement.
8.9 Spacelink will endeavour to make the Internet Access available 24 hours a day 7 days a week. Spacelink does not warrant that the service will be uninterrupted or error free.
8.10 You use the Internet Access at Your own risk. You agree that Spacelink is neither responsible nor liable for any Material obtained through the Internet Access. You agree to abide by all applicable laws relating to use of the Internet Access.
8.11 Where Your use of the Internet Access utilises services provided by third parties, You acknowledge and agree the third parties are not liable to You nor are they required to pay You any loss, costs or damages resulting from their actions.
SECTION 9: INSTALLATION OF EQUIPMENT AT YOUR PREMISES
9.1 Spacelink shall install the Equipment at the site nominated by You and agreed by Spacelink. Spacelink shall use reasonable endeavours to install the Equipment on or around the agreed installation date but will not be liable for any loss or damage for failure to do so.
9.2 You are liable for any Charges associated with the installation of any Equipment at Your premises.
9.3 Installation of the Equipment will be in consultation with You, however, the technician will decide on the position of Equipment.
9.4 Subject to any law to the contrary, You are responsible for the cost of repairing or replacing any faulty equipment (including the Equipment), provided that Spacelink will, where possible, pass on the benefit of any manufacturer's warranty in respect of the Equipment.
9.5 You must provide a safe environment for the installation, maintenance and removal of any Equipment.
9.6 Subject to this clause, You warrant that You are the owner of the premises where the installation of the Equipment is to take place. Where You are not the owner of the premises, You must provide Spacelink with written evidence from the premises owner or landlord that the required work can be carried out.
9.7 Where the installation of Equipment involves a telephone line, You warrant that You are the legal lessee of the phone line.
9.8 Spacelink retains full rights, title and interest to and in the Equipment. You must not interfere with the Equipment without the prior written consent of Spacelink.
9.9 You shall assume all risks and liabilities for and in respect of the Equipment.
9.10 Where the Equipment is affixed, attached or secured to land or premises, the Equipment shall be deemed not to be a fixture and may be removed by Spacelink at any time in accordance with this Agreement.
SECTION 10: PRE-PAID INTERNET ACCESS KIT PRODUCT
10.1 Spacelink is not liable for loss or theft of the Internet Access Card.
10.2 You may renew Your Spacelink pre-paid account by purchasing and activating a new Internet Access Card.
10.3 Spacelink may terminate this Agreement if You do not connect to the Internet Access for a period three months.
10.4 Your Internet Access expires either when the specified limit on Your Internet Access Card is reached, or 24 months from the date of manufacture whichever comes first.
10.5 Pre-paid Internet Access accounts cannot be converted to standard dial-up accounts.
10.6 Pre-paid Internet Access accounts cannot be used to credit standard dial-up accounts.