This Agreement consists of our General Terms and Conditions which sets out the general legal relationship between the parties, establishes a standing offer in relation to the acquisition of Services, and contains a Dictionary of words and expressions which have a defined meaning in this Agreement.
Agreement means 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 requesting the Services
Abuse of Service means misuse of the Internet Access in to menace or harass others including but not limited to breaching the Terms and Conditions set out in this Agreement
Account means the profile of your details given to NetSpeed Internet Communications for the purpose of billing a Service or number of Services
Account Cancellation means to terminate or cease Internet Access in accordance with the Terms and Conditions of this Agreement
Account Holder means the person or party listed on the Application as being the subscriber of the Service, and includes those users of equipment which utilises the Service
Business means an enterprise with an Australian Business Number which is undertaking a commercial activity on a going concern basis, or which is engaged in commercial activity for the purpose of profit on a continuous and repetitive basis
Business Hours means the hours between 9.00am and 5.30pm (local Canberra time) on any Business Day
Charges means the charges payable by You to Us for the Supply of Service
Customer means a person who is seeking the supply, or is being supplied with a Service
Customer Premises Equipment (CPE) means customer premises equipment
Customer Toolbox means the NetSpeed Customer Toolbox located at http://www.netspeed.com.au/toolbox. Customers can log into the Customer Toolbox using their NetSpeed username and password
Default Account means those that are unpaid after the due date, or those whose charges are refused by the User's credit card company, or direct account debits that are refused by the User's bank.
ESA means a Telstra Exchange Service Area
Excess Usage Charges means the Fees for the Usage over and above the allocated Monthly Usage
Fee means total sum charged by Us to You
Goods means any goods we supply to You, including goods supplied in connection with any Services
Gigabyte (GB) means a gigabyte, which equals 2^10 megabytes. For billing purposes it will be considered to be 1000 megabytes
Internet Access means using software protocols supported by NetSpeed to connect Your computer equipment to NetSpeed’s network
kbps means kilobits per second
Kilobyte means 1000 bytes for billing and download / upload measurement purposes.
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
Megabyte (MB) means megabyte, which equals 1024 kilobytes. For billing purposes it will be considered to be 1000 kilobytes
Monthly Service means monthly subscription billed by credit card
Minimum Service Period means the period of time from the date of application
NetSpeed or We or Us means ByteCard Pty Ltd trading as NetSpeed Internet Communications (ABN 49 052 315 812) or one of its subsiduary businesses
Onsite means the site(s) or premises to which a Service is to be supplied as requested by You
Personal Web Pages refers to the space allocated by NetSpeed as a facility to store WebPages on your plan
Prepaid Accounts means subscriptions paid for in advance
Provisioning means the time necessary to complete any work that is required for You to be able to access Your Service
Regular Payment means the ongoing periodic Fee due to NetSpeed from You for Your Service, excluding Setup Fees, Excess Usage Charges and other charges
Service means any Service that you request via phone, electronically, fax or application that is provided by NetSpeed
Service Standards means we will use reasonable endeavour to supply services to a fair and reasonable standard, but we do not guarantee fault free, continuous or optimal service
Service Specification means the reliability and performance standard that applies to the delivery of a Service, as specified in Your Application Form
Setup Fee means a once off charge for the provisioning of an account
Suspension means the act of temporarily disabling Your Internet Access
Traffic Shaping or Shaping means the reduction of Service speed to and from the Internet
Usage means the measurement of time or data by computers or devices logging in to your Internet Access Account
User means the Account Holder
Wireless Internet means Internet Access which uses radio frequency infrastructure to provide data communication
You and Your means and refers to the customer of NetSpeed as specified on the Application Form
Terms & Conditions
Section 1 - The Service
1.1 NetSpeed agrees to provide You with Services set forth on the Application; subject to User's compliance with the terms and conditions of this document.
1.2 This Agreement defines Your use of the Services, any goods or any quotations or offers to supply Goods, any other services including connection with Goods and Services (including installation and maintenance Services) ("Other Services"), provided to you by NetSpeed. The provision of Supplies by Us is subject to and will incorporate the terms and conditions of this Agreement as well as any additional terms and conditions contained in each applicable Service Schedule, which terms and conditions will override this Agreement to the extent of any inconsistency.
1.3 NetSpeed does not provide warranties of any kind either express or implied, as to the material accessible on the Service. This includes, but is not limited to, protection from Viruses, Worms, Trojan Horses or other harmful programs. NetSpeed does not exercise any control over the content passing through NetSpeed's system. Use of any information obtained via NetSpeed is at User's risk. Neither NetSpeed nor any of its affiliates, its licensers, its contractors or their respective employees warrant that the Service will be uninterrupted or error free; nor does NetSpeed make any warranty as to the results from use of the Service.
1.4 NetSpeed provides unfiltered access to the Internet. Some of the discussions contain language, pictures or other material about subjects intended for Adult audiences.
1.5 Account holders must be 18 years or older.
1.6 NetSpeed personal web spaces are intended for personal use only and shall not be used for commercial purposes. Commercial website hosting is a seperate product.
There are limitations to this Service as outlined in the terms and conditions sections 2, 3 and 7 of this Agreement. If a web site published under a personal account utilises an excessive amount of bandwidth or storage (excessive bandwidth shall be defined as more than 500MB of throughput per month, excessive storage shall be defined as more than 50Mb of server hard drive space at any time) NetSpeed has the right to charge for the excess bandwidth and/or storage. Excessive bandwidth is charged at 2 cents per megabyte served in excess of 500MB per month. Excessive storage is charged at $2.00 per MB per month based apon the maximum storage space recorded at any time during the month. NetSpeed also reserves the right to request that the account be converted to a commercial site or to remove the site from the system all together.
1.7 NetSpeed reserves the right to change prices or services at any time. Such changes will be notified to existing customers and the public via email and/or the NetSpeed web site. Price changes will not apply to existing in-contract customers where the minimum contract term extends beyond 31 days from the effective date of the price change.
1.8 The NetSpeed Help Desk will be staffed during advertised Business Hours. Outside of these hours NetSpeed will provide a free 24-hour fault reporting service by answering machine. NetSpeed will endeavour to repair faults within 24 hours, but complex faults may take longer to repair.
1.9 NetSpeed enforces a 4 hour session limit for dial-up connections. Once a dial-up service is used in excess of 4 hours continuously you may be disconnected by the server and then can re-connect immediately if required.
1.10 NetSpeed makes no guarantee that the Service will be uninterrupted or error free; nor does NetSpeed make any warranty as to the results from use of the Service. The Customer is entitled to have minor faults repaired within 5 business days, faults requiring action by third-party suppliers or contractors (such as ADSL services obtained from a wholesale supplier) may take longer to resolve. A pro-rated refund of services may be applied for if services are not available for more than 5 continuous days in any Calendar month.
1.11 NetSpeed may modify this Agreement from time to time by placing a notice on the website http://www.netspeed.com.au. It is the User's responsibility to check this online regularly. Continued use of the Service by the User following notice of modification shall be deemed to be User's acceptance of any such modification of this Agreement. If the User does not agree to any modification of this Agreement, the User must immediately stop using the Service.
1.12 If you are connected to a myShape Plan, your connection speed will be automatically slowed down to 256Kbps once you've reached your monthly peak or off-peak download quota. Your shaped speed will be set for both peak and off-peak time periods. You also have the option to choose a different shaping speed or you can purchase additional blocks of data to keep downloading at full speed through the Customer Toolbox. Your connection will return to full speed at the beginning of each new month. If you purchase additional blocks of data, your connection speed will be returned to full speed whilst you remain below your new download quota. You can purchase as many additional data blocks as you like for use in that month. Blocks are only valid for the month in which they are purchased and do not carry forward. If you exceed your plan quota (plus any purchased datablocks) by more than 25% we reserve the right to suspend your account for the remainder of the month, or until you purchase datablocks to cover the additional usage.
Section 2 - Use of Material
2.1 Public Domain materials (e.g., images, text, and programs) may be downloaded or uploaded using NetSpeed services. Users may also re-distribute materials in the public domain. The User assumes all risks and liability regarding the determination of whether the material is in the public domain.
2.2 As provided by Australian law and by International treaties, copyrighted materials (e.g., images, text, and programs) may not be transferred or downloaded using NetSpeed services without the permission of the copyright holder. Except as expressly permitted, materials under copyright may not be distributed to others. Copyrighted material may not be changed nor can the author attribution notices nor the copyright notices be modified.
2.3 Note that some materials available on the Internet are called "SHAREWARE." These materials may be downloaded and used, but they are copyrighted materials. The copyright holder usually gives permission to use the material for examination. If you choose to continue using the materials, the copyright holder requests that you register your usage and may ask that you pay a license fee.
Section 3 - Use of Services
3.1 NetSpeed User accounts are for individual Users and the User therefore agrees not to share the password of the account. The User acknowledges that NetSpeed will terminate the account immediately and without refund if the User does not comply.
3.3 The User agrees to maintain a secure password to the Account. The User is responsible for all usage and related charges incurred by access to the Account using the nominated username and password. The User agrees to ensure that the password is not given to or used by anyone other than the Account Holder.
3.4 The User acknowledges that there may be a time delay from NetSpeed accepting the Application and providing a Service. Either party may Terminate an Application if the time to commence the Supply of the Service exceeds 14 business days.
3.5 The User acknowledges this Agreement commences on the receipt of the Application for Services and any contract period commences on the Service commencement date for each Service you acquire from NetSpeed and will continue until the termination of all services as per the Terms and Conditions of this Agreement.
3.6 The User agrees not to use any process, program, or tool via NetSpeed services for guessing or otherwise obtaining the passwords of any other party. The User agrees not to use NetSpeed services to make unauthorized attempts to access the systems and networks of others.
3.7 The User agrees to use the Services provided by NetSpeed as permitted by applicable local, state, and federal laws. The User agrees, therefore, not to use these services to conduct any business or activity or solicit the performance of any activity that is prohibited by law.
3.8 The User acknowledges that NetSpeed is a commercial entity. NetSpeed may be used by Users to conduct legal businesses. These businesses should, however, not impinge upon the use of NetSpeed Services by other Users. NetSpeed Services should not be used to send unsolicited advertising or promotional materials (also known as spam) to other network users. Electronic mail and appropriate USENET newsgroups may be used in the conduct of legitimate businesses.
3.9 The User acknowledges that NetSpeed may, at its sole discretion, disable or remove any material published on a Users web site that NetSpeed deems inappropriate. NetSpeed may also disable a site that is experiencing excessive usage as defined in section 1.6 of this agreement.
3.10 If we supply goods to you, you will receive the manufacturer's warranties that applies for the particular goods under theTrade Practices Act 1974 (Cth)and / or under state law.
3.11 If you have a complaint we encourage you to contact us immediately via phone, email or postage. All complaints should be reported to our dispute team, all faults should be directed to our help desk team. You must provide a detailed document to substantiate the complaint in order for us to investigate the matter. We will report the progress of the matter to you by your nominated email address.
Section 4 - Indemnification
4.1 This Clause has been incorporated into Clause 4.2
4.2 The User agrees to indemnify Netspeed for any expenses including, but not limited to:
a.attorney’s fees and cost of litigation,
c.its contractors or their respective employees,
as the result of any and all use of User’s account whether authorised or not authorised or as a result of the negligence, wilful misconduct, or breach of any of the terms of this Agreement by User, (including but not limited to claims, liabilities, losses, damages, judgement and costs), disruption to User’s telephone or other services during the installation of a NetSpeed Service
4.3 The Customer agrees to indemnify and hold harmless NetSpeed from any and all claims resulting from the Customer's use of NetSpeed's services which cause damage to the Customer or a third party.
4.4 The User agrees to promptly notify NetSpeed in writing of any claim of which it is obligated under this indemnity.
4.5 The User acknowledges and understands that the information available on the Internet contains unedited materials; some of which may be sexually explicit or offensive. The User understands that certain materials available through the Service provided under the terms of this Agreement may not be suitable for individuals under the age of eighteen. NetSpeed has no ability or authority to monitor or filter the material. NetSpeed can make no warranty of any kind, either expressed or implied, regarding the quality, accuracy, or validity of the data and/or information residing on or passing through these networks. Use of information obtained from or through NetSpeed services is at the risk of the User.
Section 5 - Account Terms
5.1 The Account Holder is the person responsible for all charges accrued on the account.
5.2 Monthly Accounts must provide credit card information for billing. The NetSpeed billing cycle is in calendar-month periods, starting with the first day of each calendar month and ending on the last day of each calendar month. Users will be billed in advance for the month (i.e. User would be billed during the first week of January for January's access). User's initial billing will be prorated to put the User on the calendar month cycle (i.e. a User who signs up on the 10th of the month would be prorated and billed for the remaining 20 days of that month). After the initial billing the User would be billed on the monthly cycle.
5.3 The User acknowledges NetSpeed subscriptions are paid for in advance. User may change the connection plan once every three months without incurring an administration charge, more frequent changes may incur an administration charge of $5.50 per request. Changes to ADSL line transmission rates may incur a fee; all Wireless plan changes must be received in writing at least 30 days prior to the date of change and may incur a fee.
5.4 The User shall pay all applicable charges to Us by the nominated due date or within seven days of production of the invoice by Us except the initial registration fee which is payable along with the submission of a completed NetSpeed Internet Access Application Form.
5.5 Prepaid Accounts must be paid in advance. Service will not be active until full payment has been received. NetSpeed will endeavour to notify the User via their nominated billing e-mail address prior to the expiration of the User's subscription. User must pay the invoice prior to the expiration of the account to avoid Service disruption.
5.6 The User agrees to allow NetSpeed to bill the nominated credit card on each successive billing date for the monthly subscription fees and any incurred Excess Usage Charges without obtaining the Users permission for each specific charge. The User shall notify NetSpeed of any changes in credit card details including a new card number or expiration date. If the payment is not honoured for any reason, NetSpeed will try to contact the Account holder via its nominated billing email address. If an alternative billing arrangement has not been established, the account will fall into default. NetSpeed reserves the right to suspend any Account in default and subsequent restoration of the account will be subject to a setup or late payment fee.
5.8 The User acknowledges full liability for any usage beyond their pre-paid subscription and agrees to pay NetSpeed for any services used at the full casual rate for any usage in excess of their pre-paid or contracted entitlement.
5.9 Broadband customers using our dial-in services may be charged a surcharge in addition to their Broadband connection plan.
5.10 NetSpeed maintains the right to terminate or suspend the Service for any unpaid or overdue invoice. Accounts in default are subject to an interest and/or administration charge of: 2% per month on the outstanding balance, or $11.50 per month, whichever is the greater amount.
Termination or suspension of Service shall not relieve User from the obligation to satisfy outstanding invoices. In the event NetSpeed utilises any third party to collect any unpaid amounts, User shall be responsible for the payment of all fees and costs in the collection of these sums.
5.11 Accounts that have fallen into default will be put into suspension and may not be used. The User accounts will continue to accrue charges while they are suspended.
5.12 Accounts that are in default can be restored once payment of the outstanding debt has been made in full. Office hours for the Accounts Department are between 9am and 5pm Monday to Friday (Canberra Time).
5.13 The User acknowledges that all plan changes take effect from the beginning of the following month and agrees to pay the new monthly rate from that time.
5.14 Some charges require billing before the service can be provided. These include set up charges, hardware charges for goods such as modems and handsets, and fees payable to third parties.
5.16 Refunds are provided via credit card. If a refund is required by other means than a credit card a Handling fee of $10.00 will be applied.
5.17 Invoices are issued by electronic mail to the User's nominated billing email address. The User can request for invoices to be printed and posted for an additional charge of $3.30 per invoice.
5.18 NetSpeed reserves the right to backbill you at any time after these charges have been incurred.
5.20 All ADSL connections have a minimum contract period as specified in the details of the relevant connection plan, which commences on the date of the application. If the service must be re-provisioned for any reason, a new application fee will be applied and a new contract period will commence. If this occurs within the first six months of the previous contract period, an additional fee of $99 applies.
5.21 NetSpeed reserves the right to assign its contract with You to another party and you agree to allow such an assignment where the Service remains substantially the same. Where such an assignment takes place, you authorise NetSpeed to provide the receiving party with such personal information required for them to supply and bill the Service to You.
Section 6 - Account Cancellation
6.1 NetSpeed reserves the right to cancel the Service for any reason without prior notice if:
a.you Breach the terms of this Agreement or
b.your nominated payment method is refused or dishonoured or
c.you have provided us with false or misleading information.
6.2 Cancellation requests for NetSpeed accounts must be received by email to firstname.lastname@example.org or in writing via postal service at NetSpeed's nominated postal address: PO Box 6081, Mawson ACT 2607. Such requests must be received before the 25th of each month in order to be processed so that the User is not billed for the next usage period. The cancellation request must include the username and password of the account to be closed.
6.3 Applications for a refund must be in writing and will only be considered if services could not be provided as advertised.
6.4 All NetSpeed accounts must be paid in full before Account cancellation will be considered complete.
6.5 NetSpeed reserves the right to terminate any account at the completion of its prepaid or minimum term contract, in a Force Majeure event or the financial collapse of, or withdrawal of service by, an upstream supplier / wholesale provider.
6.6 If a Longreach Wireless service is terminated before the contract period expires a cancellation fee of $500.00 will be incurred, or you will be required to pay for the remainder of your Longreach contract, whichever is the lesser amount. Cancellations must be received in writing at least 30 days prior to cancellation of the Longreach Wireless service.
6.7 Return of Equipment. All equipment provided or installed by NetSpeed must be returned to NetSpeed, at the Customers expense, before an account is deemed to be closed. This includes Longreach Wireless equipment, mounting poles and power injectors. The account will remain open and continue to accrue subscription and other costs until all equipment is returned.
6.8 All ADSL connections have a minimum contract period, which commences on the date of activation of the service. If the Service is terminated before the minimum contract has ended you must pay out the remaining contract period.
Section 7 - Abuse of Services (Acceptable Use Policy)
7.1 Any use of NetSpeed system resources that disrupts the normal use of the system for other NetSpeed users is considered to be abuse of system resources and is grounds for administrative intervention. Any customers on shaped plans who exceed their monthly quota (including purchased data blocks) by more than 25% may have their service suspended unless they purchase additional datablocks to cover the additional usage. Services may remain suspended until the beginning of the new subscription month.
7.2 Modification, alteration, reverse engineering, decompilation, disassembly or creation of derived works based on NetSpeed proprietary installation software or associated setup utilities is an abuse of NetSpeed services.
7.3 Personal dial-up unlimited accounts are for the unlimited usage of ONE person sitting at a computer using the service, and does NOT include leaving systems idle for excessive periods of time, leaving systems online for others' use as file servers, etc.
7.4 NetSpeed Personal Web pages are for personal use only. They may not be used for the advertising or promotion of a product, good, service, company, or person(s).
7.5 The User must not send unwanted or large amounts of e-mail messages, post commercial advertisements in USENET newsgroups, or make large numbers of article posts to inappropriate newsgroups (behaviour commonly referred to as "spamming") through NetSpeed electronic mail or USENET news servers.
7.6 The User will not attempt to vandalize any portion of NetSpeed's or other systems connected to the Internet. "Vandalism" means any attempt to harm, destroy or disrupt the service in any manner. This includes, but is not limited to, hacking attempts, transmitting computer viruses, unauthorized use of User accounts, the execution of programs that result in unwarranted network traffic or server utilization which may or may not disrupt the network load, the transmission or execution of worms, Trojan horses or any other computer program code or data which may possibly damage or disrupt the system(s). If user has any question as to whether or not a computer program is hazardous or considered inappropriate, please contact NetSpeed Customer Service at (02) 6282 8282 prior to running or installing the program.
7.7 Use of profanity, sexually explicit language, or sexually explicit material on World Wide Web homepages stored in a NetSpeed user account, or in electronic mail stored or transmitted through NetSpeed computer systems is strictly prohibited. Any material that is adult in nature must be in compliance with appropriate federal, state or local legislation. NetSpeed require the use of appropriate warnings and/or labelling systems in respect of Content which is likely to be considered unsuitable for minors according to the Classification Act and relevant Classification Guidelines, even though such content may not be prohibited or potential prohibited content.
7.8 Use of copyrighted materials without permission of the copyright holder on World Wide Web homepages stored via a NetSpeed user account.
7.9 Violations of any of the NetSpeed conditions of use are unethical and may be criminal offences. You are expected to report to NetSpeed any information you may have concerning instances in which the conditions of use have been or are being violated. When NetSpeed becomes aware of possible violations, we will initiate an investigation. At the same time, in order to prevent further unauthorized activity, NetSpeed may suspend access to services to the individual account in question. Confirmation of violations may result in cancellation of the individual account and/or criminal prosecution. The account suspension may be rescinded at NetSpeed's discretion.
7.10 The use of abusive, threatening or menacing language towards any NetSpeed employee, being verbally, in writing or by any other means is considered a breach of this contract and may also be cause for legal or police intervention.
7.11 Depending on the nature and the severity of the abuse, the user may receive an E-mail warning or have their account suspended by NetSpeed without prior notice. If the misuse is unintentional, the suspension may be rescinded following discussion with NetSpeed. If the misuse is intentional, the suspension may be rescinded at the discretion of the Customer Service Manager.
Occasionally, unintentional misuse is misclassified as intentional misuse. Customers who believe their activity has been misclassified may appeal to the Customer Service Manager.
Section 8 - Disclaimer
8.1 Other than your Statutory rights under Law and Relevant National Guidelines, NetSpeed makes no warranties of any kind, whether express or implied, for the services it provides. NetSpeed also disclaims any warranty of merchantability or fitness for a particular purpose. NetSpeed will not be responsible for any direct, indirect or consequential damages which may result from the use of its services. While we take great care with information that you deposit with us we cannot and do not guarantee that all such information will reach its intended destination (including electronic mail) inside or outside our network.
Section 9 - Monitoring the Services
9.1 NetSpeed has no obligation to monitor the Services, but may do so and disclose information regarding use of the Services for any reason if NetSpeed in its sole discretion believes that it is reasonable to do so. Reasons to do so may include: to satisfy laws, regulations, or governmental or legal requests; to operate the Service in its intended manner; or to protect NetSpeed and its subscribers.
9.2 It is the User's responsibility to monitor their usage in the Customer Toolbox.
Section 10 - General
10.1 These Terms and Conditions supersede all previous representations, understandings or agreements and shall prevail notwithstanding any variance with terms and conditions of any order submitted. The Customer's use of NetSpeed facilities and / or services constitutes agreement to and acceptance of these Terms and Conditions.
10.2 This agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of the Australian Capital Territory (ACT).
10.3 Each party irrevocably consents to the jurisdiction of the courts of the ACT and all other Australian courts, in connection with any action to enforce the provisions of this agreement, to recover damages or other relief for breach or default under this agreement, or otherwise arising under or by reason of this agreement.
10.4 In the event that any portion of this agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.
10.5 NetSpeed's failure to insist upon or enforce strict performance of any provision of this agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this agreement.
10.6 Hardware purchased from NetSpeed that is no longer required cannot be returned for a refund. This does not apply to hardware which is faulty and it within its waranty period.
Section 11 - Broadband Guarantee (Removed)
Section 12 - Off-Peak Services (Where Applicable)
12.1 Off-Peak downloads are available to all NetSpeed customers on a connection plan that has an included off-peak download allowance. Our off-peak period is between 12:00 midnight and 7am. The download limit specified on all plans that do not have an included off-peak download allowance is a total of the peak and off-peak usage amounts.
12.2 The time clock on our authentication server will be the sole clock source used to determine access times.
12.3 The time zone used will be Australian Eastern Standard Time (AEST) then Australian Eastern Daylight Saving Time (AEDST) during the period of daylight savings time in the ACT. All other terms and conditions still apply.
Schedule A A1 The current casual rate for services is 4.4 cents per minute and 33 cents per Megabyte.