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DEFINITIONS
"Agreement" means including the Customer Application Form, together with these terms and conditions and Your nominated Internet Access plan.
"Application" means application form, the electronic, paper, voice or other form of application lodged by You.
”Business” means an activity undertaken as a commercial enterprise on a going concern basis, or engaged in for the purpose of profit on a continuous and repetitive basis.
"Charges" mean all Charges due to Linknet for use of the Internet Access, in accordance with this Agreement.
”CPE” means Customer premises equipment.
”Customer” means a person who is seeking the supply of, or is being supplied with a Higher Bandwidth Service, not necessarily under Broadband Connect.
”Data Speed” means the speed at which data bits, comprising both protocol headers and data payload, are carried by a service. This contrasts with throughput, which refers to the delivery of actual payload data bits (i.e. the content useable to end-users), excluding protocol overheads. Data Speed is measured in kilobits per second, and is determined through the testing regime established by DCITA for Broadband Connect.
”DCITA” means the Department of Communications, Information Technology and the Arts.
”Defined Abuse" means misuse of the Internet Access in an unlawful manner to menace or harass others.
”Eligible Customer” means;
(a) a Residential Customer;
(b) a Small Business with 20 or fewer permanent Full Time Employees (FTEs) at the time of application for a Broadband Connect Service;
(c) a Not-for-profit Organisation with 20 or fewer permanent FTEs at the time of application for a Broadband Connect Service, except in the case of Indigenous Community Councils where the FTE limit does not apply; or
(d) a Not-for-profit Organisation where the service supplied is for the provision by the organisation or agency of a Public Access Internet Facility on a not-for-profit basis.
”Eligible Premises” means any Premises in the Broadband Connect Area that did not have access to a Metro-comparable Service at the Start of the Program.
"Equipment" means any hardware or related goods supplied to You by Linknet for use with the Internet Access.
”Broadband Connect Added Value Service” means a Broadband Connect Service registered for supply in a Service Area in which a Broadband Connect Threshold Service has been registered and which provides additional functionality or features, over and above those required of the Broadband Connect Threshold Service.
”Broadband Connect Area” means all of Australia other than the Metropolitan Exclusion Area and, unless otherwise prescribed for the purposes of section 8B of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (the Consumer Protection Act), External Territories.
”Broadband Connect - compliant Pricing” means that the price of a particular Higher Bandwidth Service meets the price requirements of a Broadband Connect Threshold Service or the equivalent Broadband Connect Added Value Service being offered under Broadband Connect.
”Broadband Connect Customer” means an Eligible Customer with whom a Broadband Connect Provider has a contract to supply a Broadband Connect Service.
”Broadband Connect Premises” means Eligible Premises where a Broadband Connect Service is being received.
”Broadband Connect Provider” means a Service Provider registered under the Program and with whom DCITA has an Agreement, who is providing Broadband Connect Services under the Program.
”Broadband Connect Service” means an Internet service meeting the performance and pricing requirements of Broadband Connect that is registered under the Program and included for supply by a Broadband Connect Provider under its Agreement.
”Broadband Connect Service Area” means the Eligible Premises that have been included in the Agreement of a Broadband Connect Provider as the Premises to which it will offer a particular Broadband Connect Service.
”Broadband Connect Terms and Conditions” means the terms and conditions on which a Broadband Connect Service is supplied by a Broadband Connect Provider to a Broadband Connect Customer, including mandatory terms and conditions required under Broadband Connect.
”Broadband Connect Threshold Service” means a service that provides;
(a) access to the Internet;
(b) a peak Data Speed of at least 256 kbps to the Customer and 64 kbps from the Customer;
(c) average data download and upload speeds of at least 60 per cent of these peak speeds at least 75 per cent of the time as measured according to a prescribed Broadband Connect testing schedule for test computers located in different geographic regions;
(d) a minimum monthly usage allowance (download and upload) of at least 500 MB;
(e) availability 99 per cent of the time, averaged over a quarterly period;
(f) free 24 hour fault reporting;
(g) staffed helpdesk services as agreed between DCITA and Linknet;
(h) that where Customer usage limits apply, Customer usage information is updated at least once per day;
(i) the ability, upon request of the Customer, to inform the Customer of current usage and any associated costs;
(j) a package including equipment, installation (but not travel costs) and monthly usage over three years at a price of up to $3000; or
(k) a package including equipment, installation (but not travel costs) and monthly usage over three years at a price of up to $3400 where additional features or functionality;
(l)of a value equal to or exceeding the additional price allowance are provided.
”Higher Bandwidth Service” means any Internet access service that provides access to the Internet at a peak Data Speed of at least 256 kbps and from the Internet at a peak Data Speed of at least 64 kbps.
"Implied Term" means a term implied into this Agreement by consumer protection legislation and which such legislation prohibits from being excluded, modified or restricted.
”Incentive Payment” means either a Standard or a High Cost payment as described under section 2.5 that is made to a Broadband Connect Provider, to be paid after the Broadband Connect Provider has supplied a Broadband Connect Service to an Eligible Customer, and upon receipt by DCITA of a properly submitted claim.
"Internet Access" means connection to the Internet using hardware, software and protocols supported by Linknet, and use of any additional services provided by Linknet.
”kbps” means kilobits per second.
“Linknet” means Linknet Communications NSW Pty. Ltd. (ACN 105 220 399) and its successors in business, agents, administrators, substitutes and permitted assigns. “Linknet ” also means Linknet and its related bodies corporate.
"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. ”MB” means megabyte.
”Metro-comparable Service” means a Higher Bandwidth Service that provides Internet access at a peak Data Speed of at least 256/64 kbps and 500 MB per month usage allowance, and has the following pricing;
(a) a package including equipment, installation (but not travel costs) and monthly usage over three years at a price of up to $3000; or
(b) a package including equipment, installation (but not travel costs) and monthly usage over three years at a price of up to $3400 where additional features or functionality of a value equal to or exceeding the additional price allowance are provided.
”New Broadband Connect Service” means a Broadband Connect Service provided by Linknet, as a Broadband Connect Provider to a Customer who was not previously receiving a Higher Bandwidth Service from that provider.
"Plan Period" means the duration of the Internet Access plan You have nominated.
”Pricing for a New Broadband Connect Service” means the prices that a Linknet, as Broadband Connect Provider charges for a Broadband Connect Service provided to a Customer.
”Residential Customer” is a Customer who requests a Broadband Connect Service be provided at a Premises that is their place of residence, primarily for non-business use.
”Service Upgrade” means the arrangements by which a Broadband Connect Customer changes from a lower level to a higher level of Broadband Connect Service in terms of service performance, quality of service and/or any other feature or functionality.
"Storage Facility" means any facility provided by Linknet, which allows You to store information, including but not limited to Your e-mail mailbox and Web space.
"You" means the person named in the Application.
“Your” means in relation to You.
1: GENERAL
1.1. These terms and conditions refer to Wireless Broadband Services provided by Linknet registered with DCITA as being either a:
Broadband Connect Threshold Service; or
Broadband Connect Added Value Service.
Details of these Services are available in the Linknet Broadband Connect Service Application Form and displayed on the Linknet website at http://www.linknet.com.au
1.2. Subject to conditions 1.14 and 1.15, a Broadband Connect Service will be available to you without variations (unless prior approval is given by DCITA) for a period of 3 years from the date of service activation. The three year price can not exceed that approved by DCITA at the time of Broadband Connect registration.
1.3. Linknet Broadband Connect Services have an initial contract period of eighteen (18) months with an option to renew for a further eighteen (18) months concurrent to the initial contract period. After that, Linknet will offer You a comparable non-Broadband Connect Service.
1.4. You can change to a different Broadband Connect service offered by Linknet on the same technology platform at no charge and return to your original Broadband Connect service. Where a change is made mid-cycle in the billing period, Regular charges will be made pro-rata at the date of the change.
1.5. All Customer Premise Equipment (CPE) installed by Linknet, or Linknet contractors, remains the property of Linknet.
1.6. It is Your responsibility to insure CPE for any damage or loss.
1.7. Your Broadband Connect Service will be installed within fourteen days of approval of Your Application.
1.8. The cost of this installation is as specified on the Broadband Connect Application Form.
1.9. The Peak data speed and maximum data quota shall be that specified for the particular Service nominated by you as indicated on your Broadband Connect Application Form.
1.10. The Average data speed shall be at least 60% of the peak data speed for at least 75% of the time, measured over each quarterly period according to the prescribed Broadband Connect testing schedule. Access availability will be greater than 99% over each quarterly period. This shall apply for the period of provision of the Broadband Connect Service.
1.11. You can choose to have your service rate limited to 48/33kbits when data usage reaches your monthly allowance. Once your monthly allowance reaches 110% of the data usage allowance, the speed of your service will be reduced to 19/19kbits. You can request that rate limiting be removed and subsequently pay excess data costs at the applicable rate.
1.12. Linknet will provide, free of charge, a staffed helpdesk from 9am to 8pm Monday to Friday and 10am to 4.30pm Saturday on 1300 780 997. A fault reporting service is available outside these hours, Sundays and public holidays on the same phone number.
1.13. In the event of service disruption, Linknet will respond within 2 hours and will endeavour to rectify the fault by the end of the next working day if the fault is reported prior to 2pm. If a fault is reported after 2pm, Linknet will endeavour to rectify the fault by no later than the end of second day after the fault is reported.
1.14. You attest that the site for which this service is requested was not able to obtain ADSL consumer broadband service or other Broadband Connect equivalent broadband service prior to the 8th April 2004, and, to the best of your knowledge has not previously had a Broadband Connect service connected.
1.15. You also attest that you are a residential customer, or a business with less than 20 permanent employees or a not for profit organization with 20 permanent employees or less or a not for profit organization that intends to provide public internet access facilities.
1.16. You agree to provide all necessary information to Linknet so that we can make a Broadband Connect claim for this service.
1.17. Broadband Connect customers churning from other providers will not have Broadband Connect services made available to them unless DCITA has advised the customer that they remain Broadband Connect eligible.
1.18. Linknet agrees to participate in the Broadband Connect performance reporting regime required by DCITA for the life of the contract; except where exceptional circumstances apply (as agreed by DCITA) and agreement is reached with the customer to provide the service at a lower average data speed level.
1.19. These Terms and Conditions may be varied from time to time only with prior approval from DCITA. New Terms and Conditions will be published on the Linknet Web page.
2: INTERNET ACCESS PRICES CHARGES & BILLING
2.1 You must pay to Linknet:
2.1.1 all Charges for the Internet Access as advised to You by Linknet 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 Linknet may only change the Charges with the prior approval of DCITA. New charges will be published on the Linknet Web page.
2.4 Where You have nominated credit card payments, to the extent permitted by law You irrevocably authorise Linknet to:
2.4.1 automatically debit the Charges for the Plan (contract) Period 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 Account usage statistics for Downloaded data includes all data transferred to Your computer through the Internet Access.
2.6 You must pay disputed Charges. A credit may, at the discretion of Linknet, be issued at a later date.
2.7 Where You dispute the Charges, You must notify Linknet immediately after receiving Your bill or credit card statement. Linknet will follow the dispute resolution process as displayed on our website at: http://www.linknet.com.au/terms_and_conditions_dispute_resolution.php
2.8 You are responsible for all costs associated with Material or other products and services obtained from third parties through the Internet Access.
2.9 Where Your account is overdue, Linknet may apply an overdue charge.
2.10 Cancellation of Your Wireless Broadband Access prior to the end of Your Plan (contract) Period will attract a fee of the outstanding contract amount and may also incur an additional fee for the removal of equipment and administration.
2.11 Changing to another Broadband Connect Linknet wireless broadband account plan does not alter the Initial Contract Period or terminate the contract agreement.
2.12 The new account plan charges will apply from the date of the upgrade to the end of the Initial Contract Period.
2.12.1 You will be charged additional set-up fees for any configuration changes required due to your upgrading, changing, or renewing your computer equipment connected to the Linknet wireless broadband service. A minimum charge of $33 (incl. GST) applies for such configuration changes. If these configuration changes result in additional support beyond 15 Minutes an hourly charge of $55.00 (incl. GST) charged in increments of 15 minutes applies.
2.13 Linknet will commence the Initial Contract Period and the billing cycle for data traffic on the day of service activation and You will be billed pro rata for the remainder of the current month. Thereafter billing will occur on the First day of each month.
2.14 You agree to pay all charges for the Wireless Broadband Service in accordance with the Broadband Connect Linknet account pricing plans.
2.15 You agree to pay all installation, Access and usage charges and any other charges (where applicable) related to the service chosen by You, by cheque, direct debit or credit card, once the Wireless Broadband service has been confirmed as available.
2.16 If You are paying by Credit Card, Linknet will initially debit Your credit card for the Installation costs and the first months Access Fee. Thereafter Linknet will debit your credit card, on the first day of each month or within 5 days after the first day of each Month, one month’s access fee paid in advance plus excess data from the previous billing month.
2.17 You will receive Your monthly Linknet bill via Your Linknet or nominated email account.
2.18 You are responsible, for all usage charges in respect of the use of the Wireless Broadband Service whether or not such usage was authorised. It is Your responsibility to maintain the security of the means of access to the computer/s connected to the Wireless Broadband Services and to ensure unauthorised use does not occur. Account usage information is available at http://accounts.linknet.com.au and is updated every 5 minutes.
3 INSTALLATION
3.1 Requirements for installation are:
3.1.1 your premises being within 20km of and have clear Line Of Sight to the nearest Linknet access point.
3.1.2 the connection being to a Linknet approved router or a stand-alone computer with a spare ethernet port.
3.1.3 Linknet retains ownership of all equipment installed at Your premises up to and including the Ethernet interface that connects to Your router, wireless router, or computer equipment.
4: TERMINATION AND SUSPENSION OF ACCOUNTS
4.1 Linknet may, at its discretion, immediately suspend or terminate the Internet Access without notice in the following circumstances:
4.1.1 during any investigation of alleged Defined Abuse; or
4.1.2 where You fail to pay the Charges; or
4.1.3 where Your financial position is significantly changed, including without limitation, bankruptcy, insolvency, a winding up application or the appointment of a receiver; or
4.1.4 in an emergency, or to safeguard the provision of services to any customer for example in the case of denial of service attacks being directed at your service IP address; or
4.1.5 if You breach this agreement; or
4.1.6 where You have provided any misleading, false or incomplete information to Linknet; or
4.1.7 where Your nominated payment method is refused or dishonored by Your nominated financial institution; or
4.1.8 where You fail to notify Linknet of a relevant change to Your personal details; or
4.1.9 where in the opinion of Linknet you have breached the Linknet “Reasonable Use Policy”
4.2 Linknet is not required to issue You a refund if the account is suspended or terminated for any of the reasons in clause 4.1.x except as required by law.
4.3 Your Internet Access will continue until the Internet Access is terminated in accordance with this Agreement.
4.4 You may terminate or suspend the Internet Access at any time by giving written notice to Linknet. The termination or suspension will take effect 30 days after receipt of your written notification. You will not be issued a credit or refund for any unused Internet Access, except as required by law.
4.5 The provision of services will be ongoing until terminated by either party giving 30 working days notice in writing. If You terminate this agreement before the expiry of the contract period You will be liable to pay the remaining access charges up to, and including, the end of the Initial contract period. Additional charges may be levied against You for removal of equipment and administration costs.
4.6 Linknet 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. Linknet may levy a reasonable fee for any costs incurred as a result of the early termination.
4.7 Linknet reserves the right to terminate the service immediately and recover all monies owing, including the cost of recovery, when payments are overdue.
4.8 If You fail to comply with any of the conditions set out in this Agreement, the Linknet Broadband Connect Wireless Broadband Terms and Conditions, and/or with the Linknet Reasonable Use Policy, Linknet may terminate this Agreement immediately by giving written notice. On termination, Your right to use the Wireless Broadband Service ceases immediately and Linknet will not be liable for any loss or damage suffered by You.
4.9 Linknet may delete any Storage Facilities used by You on termination or suspension of this Agreement.
4.10 A cancellation fee of the outstanding contract amount applies if the service is cancelled prior to the expiry of Your Initial Contract Period. An additional administrative fee may also be payable.
4.11 All notices shall be in writing and shall be hand delivered, or sent by post, facsimile or email to the parties hereto at their respective addresses. It is your responsibility to advise Linknet of any changes to your contact details in particular your phone number and address. The contact details Linknet currently has on record for You can be viewed at http://accounts.linknet.com.au
5: USE OF THE SERVICE
5.1 You are not authorised to use the Internet Access unless Your Application has been accepted by Linknet.
5.2 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.
5.3 To the extent permitted by law, Linknet may monitor Material You transfer through the Internet Access. This information may be disclosed to third parties only as required by Law without notice.
5.4 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).
5.5 Where Your use of any Storage Facilities exceeds specified limits, Linknet may remove any of the stored information without notice. This includes, without limitation, information in Your e-mail mailbox and Your personal Web space.
5.6 Linknet may delete e-mail sent to or from You where:
5.6.1 individual messages are greater than a specified limit;
5.6.2 messages remain on Linknet servers for more than 90 days.
5.7 You must not connect a sub-network to the Internet Access, unless Linknet expressly allows otherwise in writing, including without limitation hosting of FTP, SMTP, HTTP and Proxy Services.
5.8 You must not engage in Defined Abuse as specified in the Linknet “Reasonable Use Policy”.
5.9 You agree this Wireless Broadband Service cannot be resold or used for Web/Mail Hosting without prior written authority form Linknet.
5.10 You must not deliberately create any conflict or interference with the normal operation of the Wireless Broadband Service or any related facility of service.
5.11 You agree not to assign, transfer, or re-sell any of the services provisioned by Linknet under this Agreement or any rights given by the use of this service.
5.12 You are not to allow a third party to use the Wireless Broadband Service without direct supervision and/or authorisation by Linknet. You are responsible for all use of the Wireless Broadband Service including use that is not authorised by You.
6: DISRUPTION TO THE SERVICE
6.1 You agree that if Linknet is asked to investigate a breakdown in the service and upon investigation it is found that the fault is not due to Linknet equipment then You agree to pay Linknet an hourly rate of $77.00 (incl. GST) for time and travel and the cost of any materials or equipment required to investigate and repair the suspected breakdown in service. Such breakdown in service could be caused by but not limited to;
6.1.1 trees growing in the signal path of receiving equipment.
6.1.2 buildings being erected in the signal path of receiving equipment.
6.1.3 storm, wind, or lightning damage to any components of the wireless broadband receiving equipment.
6.1.4 incorrect configuration and or failure of Your computer software or hardware.
6.1.5 You or Your agents moving or interfering with the Wireless Broadband Antenna equipment.
6.1.6 malicious damage caused to the wireless broadband receiving equipment by others.
6.1.7 configuration changes made by You to (client premise equipment) Linknet’s wireless ethernet bridge or Your router.
6.1.8 mains power outages, surges, brownouts, etc
7: NETWORK BOUNDARIES OF RESPONSIBILITY
7.1 Linknet will not be responsible for troubleshooting the delivery of data or network performance issues beyond defined points of responsibility as described on the linknet website at; http://www.linknet.com.au/online_help/support_info.php
These defined points of responsibility are;
7.1.1 to the WAN Port on a Linknet supplied (approved) router.
7.1.2 to the ethernet interface (RJ 45 Plug or Socket) within the customers premises connected from the mast mounted Wireless Ethernet Bridge if Linknet has not supplied Your router. In this case it is your responsibility to ensure that Your router will respond to ICMP requests on its WAN port to enable your connection to be monitored for quality of service.
8: ACCOUNT SECURITY & ABUSE
8.1 You are responsible for ensuring the security of Your account by:
8.1.1 exercising due care when choosing passwords;
8.1.2 ensuring that Your computer system is up to date and secure and that all current service packs, antivirus updates and spy-ware removal programs are updated weekly.
8.1.3 maintaining current anti-virus, spy-ware, firewall and other appropriate security measures;
8.1.4 exercising due care when using and retrieving Material through the Internet Access.
8.2 You are entirely responsible for all use of the Internet Access by any person using Your Wireless Broadband Internet Access.
8.3 "Defined Abuse" means misuse of the Internet Access by;
8.3.1 intentionally providing false information to Linknet;
8.3.2 engaging in the practice known as 'spamming';
8.3.3 using the Internet Access in an unlawful manner;
8.3.4 using the Internet Access to menace or harass others;
8.3.5 unauthorised or fraudulent usage of the Internet Access;
8.3.6 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;
8.3.7 deliberate or reckless disruption of Linknet services or disruption of other Customer's Internet Access. This includes damage to Internet connected resources, Denial of Service attacks, hacking, distributing computer viruses and e-mail bombardment.
8.3.8 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
8.3.9 engaging in unauthorised activities in relation to other peoples' intellectual property; or
8.3.10 any other manner reasonably determined by Linknet.
8.4 Linknet may take reasonable steps to investigate an allegation of Defined Abuse.
8.5 Where You are found to have engaged in Defined Abuse (without prejudice to Linknet's other rights);
8.5.1 Linknet may provide Your particulars to any third party affected by Your conduct as required by law;
8.5.2 Linknet may charge You $77 (incl. GST) per hour for time spent investigating the Defined Abuse;
8.5.4 remove any Storage Facility You have utilised without notice;
8.5.5 Linknet may immediately terminate this Agreement without notice.
9: GENERAL USE
9.1 In using the Linknet Wireless Broadband Service You agree to be bound by the Linknet Broadband Connect Wireless Broadband Terms and Conditions as displayed at the Linknet Internet web site http://www.linknet.com.au
9.1.1 You understand that the Linknet Broadband Connect Wireless Broadband Terms and Conditions, Reasonable use policy can be amended from time to time with prior approval from DCITA and that You should visit the Linknet Internet web site regularly to be aware of any changes.
9.1.2 Linknet makes no warranties or representations as to the accuracy of Information in or linked to the Linknet web site and assumes no liability or responsibility for any errors or omissions in content.
9.2 You warrant that You are an individual, are over 18 years of age and are authorised to enter into this Agreement.
9.3 You agree that Your use of the Internet Access constitutes unconditional acceptance of this Agreement by You.
9.4 You understand that Linknet may not vary this Agreement without the prior approval of DCITA. It is Your responsibility to make sure that You are aware of these variations, as notified to You or as published on the Linknet web page. Continued use of the Internet Access constitutes acceptance by You of any variations.
9.5 Failure by Linknet to act immediately on any right under this Agreement does not waive any such right.
9.6 You warrant that all information You provide to Linknet is true and correct. You must notify Linknet immediately should any relevant details change.
9.7 Unless agreed otherwise by Linknet, You are the only person authorised to request account information, make account changes, or receive customer service or support.
9.8 For the duration of this Agreement, You shall provide Linknet, free of charge, with all assistance, information, access, facilities and services reasonably required by Linknet to enable it to effectively exercise its rights or perform its obligations under this Agreement.
9.9 You may not assign Your rights or obligations under this Agreement without the prior written consent of Linknet. Linknet may only assign its rights and obligations under this Agreement without Your consent with prior approval from DCITA.
9.10 Any additional support, maintenance and/or consulting by Linknet to You shall be regarded as separate to this agreement.
9.11 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.
9.12 All equipment remains the property of Linknet. This includes but is not limited to antenna/s, antenna mounting equipment, and Ethernet Wireless Bridge. The rooftop antenna and mounting equipment is provided to You for the duration of the contract or provision of services.
9.13 Linknet will not be responsible for relocating the Wireless Broadband Service during the contract period to either a different delivery point within the same premises as originally installed or to new premises at a different location.
9.13.1 If You require the delivery point of your service to be relocated either within your premises or to another premises a site survey at a cost of $77 (incl. GST) will be required for Linknet to determine if the specified quality of service of your account plan can be retained after the relocation. If the relocation will not affect the quality of service You will be required to pay the costs of the relocation of the equipment and or moving the delivery point of the service, to a Linknet approved contractor at an hourly rate as agreed with the contractor at the time.
9.13.2 You will be liable for costs if any, for Linknet to re-commission the service after the relocation.
9.14 Linknet will use its best endeavours to make the Wireless Broadband Services available to the You in accordance with Broadband Connect requirements in clause 1.10 of this Agreement. You acknowledge that Linknet cannot guarantee uninterrupted service, peak speed, performance or quality of the Wireless Broadband Service. You further acknowledge that the Wireless Broadband Service is not fault free and there may be interruptions or access problems from time to time as Linknet depends on the performance of third parties over which Linknet has no control and therefore cannot accept liability for problems that may arise from their service.
9.15 You agree to direct all queries regarding faults and outages of the Wireless Broadband Service to the Linknet Technical Help Desk. You are liable for any cost arising from inquires to third party service providers, contractors or consultants.
9.16 Your computer equipment must conform to the minimum requirements for the provisioning of the Linknet Wireless Broadband Services. Information about these minimum requirements is available at: http://www.linknet.com.au/wireless.php
9.17 You agree that information concerning You will be held by Linknet and may be used to enable both parties to perform obligations defined in this Agreement and any other agreements between You and Linknet as required by Commonwealth or NSW State Legislation.
9.18 This agreement shall operate and be binding upon the parties form the date of its execution.
10: LIABILITY
10.1 The liability of Linknet 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 Linknet's option:
10.1.1 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
10.1.2 in the case of services:
the supply of the services again;
or the payment of the cost of having the services supplied again.
10.2 Subject to any law to the contrary and clause 9.1:
10.2.1 You agree that the Liability of Linknet in relation to any claim, loss or damage and any associated costs whether arising under or in relation to this Agreement, any tortuous act or omission (including without limitation negligence) or under common law or statute, is excluded;
10.2.2 the parties exclude any term, condition, warranty or representation which is not expressed in this Agreement (other than an Implied Term); and
10.2.3 Linknet 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.
10.2.4 Linknet will not be liable for claims arising from damage caused by lightning storm or tempest to any of the equipment including Your computer equipment and is at Your expense.
You and the Landowner if not one in the same hold Linknet Indemnified against claims arising as result of damage either personal injury, physical, or electrical, caused to any person or property by the rooftop antenna equipment including such damage or claims resulting from the antenna equipment becoming dislodged from the building roof.
10.2.5 You are responsible for arranging additional and adequate Public Liability & household or business insurance to cover the replacement costs of any equipment damaged, whether directly or indirectly as a result of fusion i.e. lightning damage, power surges or brownouts and or fire damage. You indemnify Linknet against any claims resulting from the above.
10.3 Subject to this Agreement and any law to the contrary, You;
10.3.1 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.
10.3.2 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.
10.3.3 release Linknet 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.
10.4 You indemnify Linknet 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:
10.4.1 any breach of, or failure to comply with, the terms of this Agreement by You;
10.4.2 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");
10.4.3 the use of the Internet Access by You or a Permitted User;
10.4.4 the reproduction, broadcast, use, transmission, communication or making available of any Material by You or a Permitted User, using the Internet Access;
10.4.5 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
10.4.6 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 Linknet.
10.5 All information, advice or software is provided to You on an "as is" basis. Linknet is not responsible for any losses resulting in its provision or use.
10.6 You must ensure that Your software, computer and communications equipment is compatible with the Linknet system.
10.7 Linknet 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.
10.8 Linknet will endeavour to make the Internet Access available 24 hours a day 7 days a week in accordance with Broadband Connect requirements in clause 1.10 of this Agreement. However, Linknet does not warrant that the service will be uninterrupted or error free.
10.9 You use the Internet Access at Your own risk. You agree that Linknet 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.
10.10 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.
10.11 You agree and understand that in some cases it may not be possible to provide or continue to provide the Broadband Connect Wireless Broadband Service to You. In such an event both parties will be released from their obligations under this Agreement and Linknet will have no liability to You.
10.12 You accept that some services offered by a Third Party Carrier’s Network infrastructure may be incompatible with the Wireless Broadband Service and may not be available to You.
10.13 You acknowledge that Linknet cannot be held responsible for any loss incurred by You because of faults and/or failures within the Linknet network and or within any Third Party Carrier’s Network infrastructure.
10.14 Your use of the Wireless Broadband Service is at Your own risk and Linknet takes no responsibility for any data downloaded and/or the content stored on Your computer.
10.15 You agree not to make any claim against Linknet, its suppliers, employees, contractors, dealers or assignees for any loss, damages of expenses relating to, or arising from, this Agreement or the use of the Wireless Broadband Service.
10.16 You hereby indemnify Linknet against all liability, costs, loss or damage, suffered or incurred by Linknet, its suppliers, employees, contractors and assignees arising from this Agreement or the use of the Wireless Broadband Service.
11: INSTALLATION OF EQUIPMENT AT YOUR PREMISES
11.1 Linknet shall install the Equipment at the Broadband Connect eligible site nominated by You and agreed by Linknet. Linknet 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.
11.2 Installation of the equipment will be in consultation with You, however, ultimately the installation technician may need to decide on the size positioning of the antenna and masting equipment to enable direct line of sight to the nearest Linknet Access Point.
11.3 You must provide a safe environment for the installation, maintenance and removal of any Equipment.
11.4 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 Linknet with written evidence from the owner or landlord of the premises, including any interested parties that may object, granting permission to Linknet to install the antenna and mast equipment required to provide the wireless broadband service. It is Your responsibility to advise the landlord of the proposed positioning, mast height, antenna type and dimensions. This information will be made available to you at the time of initial site survey.
11.5 Linknet retains full rights, title and interest to and in the equipment. You must not interfere with the equipment without the prior written consent of Linknet.
11.6 You shall assume all risks and liabilities for and in respect of the Equipment.
11.7 Where the equipment is affixed, attached or secured to land or premises, the equipment shall be deemed not to be a fixture or a part of the land title and may be removed by Linknet at any time in accordance with this Agreement.
11.8 If at the time of site survey the position height type of mast and antenna is agreed with the owner or the owner’s agents and then on the day of installation or during the installation there are objections from other interested parties that have rights to the property (ie strata title) that should have previously been consulted, the contractor will cease work until the dispute is resolved and further instructions are received by Linknet. Out of pocket expenses, ie cost of the contractor to re-attend, will be at the customer’s expense.
12: INCORPORATION OF REASONABLE USE POLICY IN THESE TERMS AND CONDITIONS
The Linknet Reasonable Use Policy is incorporated herein by reference and is a part of these Broadband Connect Internet Access Terms and Conditions as if they were fully set out in these Internet Access Terms and Conditions. For the purposes of incorporation by reference as set out in this paragraph, any reference to “Agreement”, “You” “Your” “Customer”, “Company” or “Service” in the Reasonable Use Policy is a reference to these Internet Access Terms and Conditions, You the Customer, Linknet Company or Internet Access Services respectively as defined in these Internet Access Terms and Conditions. In determining which provisions of the Reasonable Use Policy Terms and Conditions are or are not required by the context of the Internet Access Terms and Conditions or any particular clause or provision of the Internet Access Terms and Conditions, the interpretation which best preserves the rights of Linknet will be adopted.
13: GOVERNING LAW AND JURISDICTION
13.1 The laws of New South Wales govern this Agreement. Each party submits to the jurisdiction of the New South Wales Courts and Tribunals.
13.2 This Agreement contains the entire understanding between You and Linknet. No other written or verbal correspondence affects the meaning or interpretation of this document.
13.3 This Agreement overrides and cancels any previous agreements, whether verbal or otherwise, arrangements or commitments between You and Linknet relating to Broadband Connect Wireless Broadband Internet Connection Services.
13.4 Where software is supplied to You by Linknet, 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.
13.5 In using the Linknet Broadband Connect Wireless Broadband Service You agree to be bound by the Linknet Broadband Connect Wireless Broadband Terms and Conditions as displayed at the Linknet Internet web site http://www.linknet.com.au
I hereby acknowledge that I have read, understood and agree
to this the Linknet Broadband Connect Wireless Broadband Internet Access Terms and
Conditions.
Signed by the customer: ________________________ Date: ___
/ ___ / ____
Printed Name: ___________________________________
V270606
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