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1. General
| 1.1 |
Throughout any Agreement, “Cybercentral” shall mean
Cybercentral Pty
Ltd (ABN 86 100 428 331) |
| 1.2 |
Once an application has been processed and accepted by
Cybercentral, Cybercentral will supply and the Customer agrees to acquire
the Service(s) (“Service(s)”) specified in the Schedule(s), on
these terms and conditions. To the extent of any inconsistency
between these terms and conditions, and any Service(s)
Schedule(s), these terms and conditions will prevail. By
accepting the supply of Service(s), the Customer accepts these
terms and conditions. |
| 1.3 |
The Customer acknowledges that the terms and conditions of
this Agreement, including any fees, rates and charges, may be
varied from time to time by notification, and without
notification if the variation arises because of a change in
law or the regulatory environment. Cybercentral notify changes via
the web site located at
http://www.cybercentral.com.au/terms_and_conditions.html
and do not send individual customers notification via email or
via post. |
| 1.4 |
The Customer agrees to provide relevant details and sign
any necessary forms or other documents relevant to a(the)
Service(s) it has selected, including any documents necessary
to effect a transfer of Service(s) to Cybercentral, and the Customer
authorises Cybercentral to complete any necessary forms on its
behalf. |
| 1.5 |
Cybercentral shall use reasonable endeavours to provide the
Service(s), but it shall not be liable if it is prevented,
hindered or delayed from providing the Service(s) for any
reason whatsoever. |
| 1.6 |
While Cybercentral will endeavour to provide Service(s) of a
reasonable quality, Cybercentral does not warrant the quality,
speed, reliability or any other aspect of the Service(s) nor
does Cybercentral make any claim as to the quality, speed,
reliability or any other aspect of Service(s) provided by any
third party. Cybercentral does not provide a maintenance Service(s)
for the Broadband network delivery system directly and makes
no commitments on the time it may take to correct faults that
may develop in the line used to connect to Cybercentral's ADSL
service. Cybercentral will charge the customer $200.00 if the
customer requests a site visit by a Telstra/Optus engineer
where no fault is found with the ADSL line or service provided
by Telstra or Optus. |
| 1.7 |
Provision of the ADSL Service(s) is conditional on the
Customer nominating, and keeping operational, for the duration
of the service, a Telstra PSTN line and number, which is
capable of being conditioned by Telstra for the purposes of
carrying ADSL traffic across the Telstra DSLAM network. If,
for whatever reason, the selected line or number is
cancelled/terminated then the ADSL service is deemed to have
also been cancelled/terminated/moved or in any way
disconnected for any period of time then the ADSL service is
deemed to have also been cancelled/terminated and an early
termination fee of $170.00 will be charged. |
| 1.8 |
The Customer agrees that it will not resell or re-supply
any of the Service(s) unless it has prior written approval
from an authorised Cybercentral representative. |
| 1.9 |
Use of the service by the customer will comply with the
conditions outlined in the Cybercentral Acceptable Use Policy as
modified from time to time. the Cybercentral Acceptable use
policy comprises an integral part of this agreement and may be
found here: http://www.cybercentral.com.au/policy/aup.html |
| 1.10 |
No user may use any aspect of the Cybercentral services to
display or communicate content that contravenes any State,
Territory or Commonwealth law. |
| 1.11 |
Where the Cybercentral services are used to display content that
is considered unsuitable for children, according to the
classification act, customers must use appropriate warning or
labeling. |
| 1.12 |
Client will have the ability to reinstate files which are
automatically archived by CyberCentral; however, CyberCentral
does not guarantee the existence, accuracy, or regularity of its
backup services on Virtual Servers and, therefore, Client is
responsible for making back-up files in connection with its use
of the Services. On Dedicated Servers, we will install the
backup script for our clients, but the running of cron jobs and
services is the responsibility of the server owner. |
| 1.13 |
Client shall not use the Services for chain letters, junk
mail, spamming, or any use of distribution lists to any person
who has not given specific permission to be included in such a
process. Client also shall not engage in any unsolicited email
practices at CyberCentral, or otherwise, that mentions or
reference any domain hosted on CyberCentral servers or parked on
CyberCentral DNS servers. NOTE: THIS POLICY APPLIES TO ALL
DOMAINS, NAMES SERVERS AND PARKED DOMAINS HOSTED ON THE SERVER.
(Violators will be fined! Refer to our
UCE (SPAM) Policy). |
| 1.14 |
Client agrees to use only properly licensed third party
software in connection with Client's use of the Services |
2. Charges and Billing
| 2.1 |
CyberCentral shall either (i) debit Client's
credit card (where such information is provided by Client) or
(ii) deliver by e-mail an invoice to Client in accordance with
the applicable Services fees for ADSL , Dialup or hosting
services rendered for the current month. Domain name
registration fees must be paid up front via credit card only.
Where an invoice is delivered to Client, Client shall remit
payment to CyberCentral by no later than 10 days after the
specified payment due date. CyberCentral shall be entitled to
immediately terminate this Agreement for Client's failure
to make timely payments to CyberCentral. Certain services carry
a set-up fee charged by CyberCentral to Client that must be paid
by Client in order to have use of the Services. If Client
terminates this Agreement in accordance with Section 5
hereunder, Client shall be responsible for any outstanding fees
owed to CyberCentral and agrees to pay any and all fees incurred
by Client. Because the Services are provided on a monthly basis,
unless a contract is in place, Client will be responsible for
Service fees incurred each month regardless of when Client
provides notice of termination. Thus, for example, if Client
provides notice to terminate on the 15th of a particular month,
Client will still owe fees for the entire month and such fees
will not be pro-rated or refunded. If Client has retained the
Services for one (1) year and has pre-paid CyberCentral for such
Services, refunds will be issued for any unused full month month
portions less one month of the Services upon Clients request.
Therefore, if Client's account is cancelled at any point during
the one (1) year term, Client will be entitled to a refund for
all but one of the full months remaining after notice given by
the 20th of the preceding month. |
| 2.2 |
The Customer must pay to Cybercentral the charges for
the Service(s) plus any applicable GST. The charges for the
Service(s) are: |
| |
(a) |
the fees, rates and charges that are set out in the
relevant Service(s) Schedule(s) (Broadband Application and
other applicable documents) and as otherwise notified to the
Customer from time to time; or |
| |
(b) |
if no charges are set out in the relevant Service(s)
Schedule, Cybercentral's standard corporate fees, rates and charges
applicable at the time of supply of the relevant
Service(s). |
| |
(c) |
if the customer cancels the service within the initial
service period an early cancellation penalty of $170.00 will
be charged. |
| |
(d) |
if the customer moves addresses or changes telephone
number, either within or after the initial service period, the
customer must enter in to a new contract and must pay a
connection fee, a monthly service charge and an initial
contract period. |
| |
(e) |
if the customers line gets disconnected for any reason
temporarily, either within or after the initial service period, the
customer must pay a
new connection fee. |
| |
(f) |
Cybercentral has no ability to re-locate an ADSL service number
or location under the terms and conditions of this
contract. |
| |
(g) |
If the customer requires the carrier to have a connection
fault resolved and is found that the fault is within the
customers premises then a false callout fee of $220 will be
charge. |
| 2.3 |
The Customer agrees that, where security is
required, it will provide security to Cybercentral within the
requested time and if it fails to do so the Service(s) may be
immediately suspended and/or disconnected. If a Service(s) is
disconnected, a reconnection fee may apply. |
| 2.4 |
Electronic copy invoices for Access and
Installation Service(s) will generally be issued monthly on
the first working day of each month. However Cybercentral will debit
the customer’s account/credit card on the following
bases: |
| |
(a) |
Installation charge debited on advice from Provider of a
planned activation date. |
| |
(b) |
Balance of first month’s access debited on advice from
Provider that the service has been activated. The pro rata
charge for the first month will be from Provider's confirmed
activation date. |
| |
(c) |
Subsequent month’s access are currently debited one month
in advance on, or around, the 1st working day of each month
for that month. This date may change if Cybercentral's suppliers
change the dates they
bill Cybercentral for DSL services. |
| |
(d) |
Any excess usage charges are debited on, or around, the
1st of month following the month in which the excess was
incurred |
| 2.5 |
The Customer agrees that Cybercentral’s records are
prima face evidence of the Customer’s use of the Service(s)
and the charges payable. |
| 2.6 |
The Customer agrees to receive or view its bills
electronically and it acknowledges that the electronic
delivery of its bills constitutes notification of the charges
contained in those bills and the due date payable and that
Cybercentral will not issue a paper copy of those bills. |
| 2.7 |
The Customer may elect to have its bills paid by
direct debit from a valid credit card. Cybercentral may charge the Customer a sum
of up to $25.00 if the credit card or bank account nominated
by the Customer refuses the charge when applied for by
Cybercentral
on the agreed debit dates. Cybercentral will charge a minimum
of $1.10 for card reprocessing.. |
| 2.8 |
Any payment not received by the 20th of the month will be assessed a late fee of one and
one-half percent (1 1/2%) per month or the highest rate allowed
by applicable law, whichever is lower, with minimum of a $5.50
fee. Customer also shall pay to CyberCentral all expenses
incurred by CyberCentral in exercising any of its rights under
this Agreement or applicable law with respect to a Payment
Default or other breach by Customer, including, but not limited
to, reasonable attorneys' fees and the fees of any collection
agency retained by CyberCentral.
|
| 2.9 |
In the event the Customer's nominated credit
card or bank account defaults on any debit then Cybercentral may
suspend the service until such time as all outstanding charges
are paid by the Customer. In the event that the Customer's
ADSL service is suspended Cybercentral will charge a further $100.00
to reconnect the service. |
| 2.10 |
Where the customer pays monthly access charges
using a credit card Cybercentral will impose a surcharge.
Currently the credit card surcharge is 2% per monthly access and
4% for AMEX. |
| 2.11 |
Cybercentral bills ADSL ,Dialup and wireless services one
month in advance. In the event that a user transfers away or
cancels their Cybercentral service no rebate is given for the unused
days. |
3. Liability
| 3.1 |
The parties agree that in no event shall CyberCentral be
liable to any third party for Client's breach or alleged breach
of any of the terms and conditions set forth in this Agreement.
Client agrees to defend, indemnify and hold harmless
CyberCentral from any and all expenses, losses, liabilities,
damages or third party claims resulting from Client's breach or
alleged breach of any Client obligations set forth hereunder |
4. Use and disclosure of Information
| 4.1 |
The Customer authorises Cybercentral and its related
bodies corporate to use and exchange Customer information
before, during and after the provision of any credit to the
Customer with any of their agents and any credit reporting
agency credit providers, carriers, Customer’s business
references in accordance with the relevant State and Federal
acts for the following purposes: |
| |
(a) |
considering or applying Cybercentral’s credit policy to the
Customer’s application; |
| |
(b) |
ongoing credit management of Customer account(s) with
Cybercentral or any of its related bodies corporate, including
recovery of Customer overdue payments; |
| |
(c) |
ongoing maintenance of credit records about the
Customer; |
| |
(d) |
to enable Service(s) delivery to the Customer; and |
| |
(e) |
any other purposes permitted under the Telecommunications
Act 1984. |
| 4.2 |
The customer agrees that information referred to
in Clause 4.1 includes: |
| |
(a) |
details and status of any of the Customer accounts with
Cybercentral or its related bodies corporate; |
| |
(b) |
identification of Customer Service(s) numbers, whether
withheld or not, as required by any applicable law; |
| |
(c) |
Customer credit history, including whether the Customer
has made credit defaults, dishonoured debits or credit
infringements; |
| |
(d) |
Information about Customer creditworthiness or
capacity. |
| 4.3 |
“Customer” in this clause is defined to include
any director of the Customer submitting this form. Any
director submitting this Agreement acknowledges that
Cybercentral
may do a credit check on him or her in their personal
capacity. |
| 4.4 |
Where the Customer is in default of payment to
Cybercentral the Customer agrees that Cybercentral or its agents may
utilise any information collected and recorded by Cybercentral or
its related bodies corporate in relation to the Customer’s
account to assist Cybercentral in the process of debt recovery and
may use debt collection agencies for that purpose. |
| 4.5 |
Calls made to or from Cybercentral’s Customer Service
Centre(s) may be recorded for customer service training,
improvement programs and verification purposes. |
| 4.6 |
Cybercentral may obtain an alternative provider to
provide Service(s) to the Customer. The Customer agrees to the
assignment of Cybercentral’s rights under this Agreement to that
alternative provider; and irrevocably authorises Cybercentral to
execute on the Customer’s behalf any documents necessary to
give effect to that transfer. |
| 4.7 |
The Customer should keep confidential all
passwords it nominates in connection with the Service(s). The
Customer acknowledges that Cybercentral will disclose any
information in connection with the Customer’s accounts to any
person who correctly quotes the passwords. |
| 4.8 |
Cybercentral excludes all warranties concerning
privacy of customer information in the case of an error made
by an Cybercentral Pty Ltd employee in carrying out their
operational duties or in the case of deliberate fraud on the
part of an employee of Cybercentral Pty
Ltd |
5. Termination
| 5.1 |
After the initial contract period ends
Cybercentral
may terminate, or vary, this Agreement at any time by giving
the Customer twenty one days written notice of its intention
to do so. Written notice will be via an email to the email
address nominated by the customer on their application or as
subsequently varied by the customer using the function
provided for this purpose in the Cybercentral User Facilities. |
| 5.2 |
Cybercentral may terminate this Agreement immediately
on notice to the Customer, if the Customer; |
| |
(a) |
breaches any clause of this Agreement and the breach is
not remedied within 7 days of the receipt of email notice from
Cybercentral; or |
| |
(b) |
has a liquidator appointed, has an order made for its
winding up, or has an administrator or a receiver appointed
over all or a portion of its assets. |
| 5.3 |
The Customer may terminate this Agreement at any
end of month date following the date that the initial contract
period ends by using the on line function in the Cybercentral User
Facilities or in writing by mail or email using the
Cybercentral account email address only and authorised by the nominated account holder of the
service. If the customer fails to process the cancellation of
their service in this way they will continue to be billed via
the direct debiting of their nominated bank account or credit
card. |
| 5.4 |
If the customer terminates the ADSL service within
the initial contract period then an early termination fee of
$170.00 is charged. |
| 5.5 |
The Customer will remain liable for all charges
incurred by the Customer prior to termination of this
Agreement for whatever reason. |
| 5.6 |
Before losing access to the Cybercentral User Facilities the Customer is required to print all previous invoices they may need for tax or other purposes before closing their account. Once the account is closed invoices will no longer be available to the Customer and should the Customer subsequently require a copy of any invoice a considerable delay and charges for providing them will occur. |
6. Governing Law and Entire Agreement
| 6.1 |
Unless the parties otherwise agree, this Agreement will
also apply to any other Service(s) acquired by the Customer
from Cybercentral in the future. If the Customer wishes to acquire
additional Service(s), the parties will negotiate and attach
an additional Service(s) Schedule to this Agreement. |
| 6.2 |
These terms plus the terms of the chosen Service(s)
constitute the entire Agreement between the Customer and
Cybercentral in relation to Service(s). Any condition, warranty,
representation or other term which might otherwise be implied
into or incorporated into these terms and conditions, or any
collateral contract, whether by statute, common law or
otherwise, is hereby excluded. Neither party shall have any
remedy in respect of any untrue statement made to it upon
which it relied in entering into this Agreement (unless such
untrue statement was made fraudulently) and each party’s only
remedy shall be for breach of contract as provided in this
Agreement. |
| 6.3 |
The Customer must not assign any of its rights or
obligations under this Agreement without Cybercentral’s
consent. |
| 6.4 |
Any notice under this Agreement whether required to be
written or otherwise may be given by Cybercentral to the Customer by
posting on this web site or via an email to the email address
nominated by the customer in the Cybercentral ADSL User Facilities.. |
| 6.5 |
These terms are governed by the laws of New South Wales. |
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