Current Version Effective 1st July 2008
Allweb Pty Ltd t/a Websecure ABN:97129911673 contracts to supply communications services and/or equipment to you by way of a standard form of agreement, the terms and conditions of which will apply to all Business Customers who are end users of the services and wholesalers who re-sell the services to its end user customers. Websecure General Terms & Conditions posted on the Websecure website forms part of this Agreement
Call Charges, Rates and Fees
i) All rates and fees are in Australian dollars
ii) Call charges shall apply for any answered call whether the called party is an answering machine, disconnected service, wrong number, service switch-off announcement or actual conversation. The call charge begins when the call is answered and ends when the call is terminated
iii) All equipment quoted are ex works Sydney. Customer is responsible for paying freights from Sydney to site.
iv) Websecure will conduct a rate every twelve months and will advise the Customer any variation of the call rate within two (2) working days notice before the rate change takes effect. The continuation of the use of the Service constitutes an acceptance of the revised call rates.
Service Provision
i) We agree to supply you and you agree to acquire the services and/or equipment based on the General Terms and Conditions posted on the Websecure website and on the specific terms and conditions set out in this Agreement;
ii) This Agreement for supply of Business Services will become effective on the day the Service Application Form is signed and will continue for the minimum term and then on a monthly basis;
iii) Upon signing this Agreement, the Customer gives Websecure the authority to order the equipment, if any, and services and agrees to pay any costs associated with the equipment and services;
iv) The Customer shall nominate a contact person at each installation location, inform them of the impending installation and have them instruct the installer of the exact location for installation of the services at that sites;
v) You acknowledge that we may provide the Service using a combination of Websecure facilities and access tails or facility supplied by an other supplier(s) used to complete supply of the service to you;
vi) The installation target for the provision of new Websecure voice and broadband Internet data services is up to 6-8 working weeks. We will use reasonable endeavours to meet your delivery date for supply of the service to you but we do not represent or warrant that we will deliver the service by that date.
vii) You acknowledge and agree that before commencing supply of the service we may, as reasonably determined by us, need to modify or install equipment and make arrangements with other suppliers for the provision of the service;
viii) Websecure reserves the right to vary the method of provisioning the services and the equipment used to provide the service. However any such variation will not impair the provision of the services to the Customer
ix) You must comply with any reasonable instructions given by us and provide all information and assistance reasonably required by us, in order to enable us to comply with any request or direction of a government agency, emergency services organisation or other competent authority for reasons of health, safety or the quality of the service;
x) If you re-supply the service to an end user you agree that you will be responsible for receiving from and responding to, the end user directly in relation to fault reports and other complaints or enquiries about the service. You are solely responsible for billing, invoicing and collecting payments from that end user in respect of the service and you will be liable for the service regardless of the extent to which you are able to recover charges from the end user.
xi) Websecure reserves the right to provide its services to any customer at its absolute discretion. If we decide not to supply Websecure’s products and services to a customer, we shall refund any monies paid for the services that have not been used. The customer shall not be entitled to any form of compensation whatsoever in respect of such cessation, whether for loss of revenue or otherwise.
Service Activation
i) Websecure’s services will only be activated upon the signing of this Agreement and a Service Form. The credit application process will need to be completed for post paid customers.
ii) Upon signing the Service Form, customers are required to pay 75% of the equipment costs and any initial one-off charges.
iii) The remaining 25% is payable upon delivery of the equipment on-site before the service is activated.
iv) Customers shall pay for the installation and recurring fees for the broadband link service once the installation is completed regardless of whether the broadband links are carrying live traffic
Use of Service
- You or your customer must not use or permit any use of the service:
i) to transmit any defamatory, abusive, menacing, threatening, harassing or illegal material or any unsolicited material of an offensive, obscene or indecent nature or otherwise contrary to law or any applicable code of conduct;
ii) in any manner which constitutes a violation or infringement of any duty or obligation on contract or tort or otherwise, to any third party; or
iii) in, or in relation to, the commission of an offence against any applicable law.
- The Customer is responsible for all usage charges in respect of the use of the services whether or not such usage was authorized. It is the Customer’s responsibility to maintain the security of the means of access to the Services and ensure unauthorized use does not occur.
- Other than as specifically provided in this Agreement and quotation, Websecure shall not be obliged to maintain or upgrade hardware or software to the customer
- Websecure will pass all third party suppliers’ hardware, software and service warranties to the Customer
Service Level
i) Websecure will use reasonable endeavours to the service levels and will undertake to provide the service using all the reasonable skill and care of a competent carriage service provider;
ii) Performance targets - Websecure guarantees 99.9% network availability - Websecure guarantees 99.9% availability of customer equipment that is under a Websecure maintenance agreement. Availability means a measurement of the percentage of the voice service is operative.
iii) When network availability is compromised in excess of one hour during a calendar month is identified, the customer may receive a Service Rebate for the downtime
iv) Where you report faults with the service, we will promptly perform, or arrange to be performed, appropriate tests to determine the location and cause of any fault. You must provide all necessary assistance to enable location and repair of any fault which is our responsibility or the responsibility of an outside supplier whose the network Websecure is interconnected to;
v) Where we determine, acting reasonably, that there is a fault within the Websecure service, we are responsible for correcting the fault;
vi) We resell broadband links from Telstra or Optus The service level is in accordance with the Service Level Agreement provided by Telstra or Optus.
vii) The performance of the broadband links provided is subject to the quality and conditions of the physical lines and the distance from the local exchange
viii) We are responsible for the network performance up to the point of demarcation. The service level and quality beyond the demarcation point is the responsibility of the customer
ix) We provide free technical support remotely for the part of the network service that we provide, and do not provide support for any part that is not supplied by Websecure. There will be a fee charged for on-site technical support by Websecure staff. The fee must be agreed before Websecure staff go on-site.
x) We are not responsible for any fault which is within the network of any interconnected other supplier. We will notify that other supplier of the fault and request that the fault be corrected promptly but will bear no further liability or responsibility.
xi) The following exclusions are applicable:
- Unavailability due to customer environmental issues such as lack of air- conditioning and power brown-out or outage at the Customer site will not be accepted
- Unavailability due to excessive traffic as a result of activity such as spamming, virus attacks and denial of service will not be accepted
- Major cable cuts, acts of god, war, Government directions and strikes and lock-outs are excluded from the service level targets
xii) Where payments to Websecure for equipment and/or services are overdue the Customer will not be entitled to claim a rebate for network unavailability.
Termination
i) After expiration of the contracted term, either party may terminate the supply Agreement by giving 30 day written notice to the other, provided that such notice does not take effect on any day other than the last of a calendar month
ii) You may terminate the service at any time prior to expiry of the Contracted Term by:
- giving us 30 days written notice of your intention to terminate, provided that such notice does not take effect on any day other than the last day of a calendar month; and
- paying us an amount calculated by multiplying the minimum monthly fee, payable by you under this Agreement, by the remaining months of the Contracted Term plus any fixed costs and the cost of the equipment, if applicable. The remaining months are calculated from the date the service agreement is signed by the customer.
iii) We will not refund any equipment, any costs and payments if you terminate the service agreement.
iv) We may without liability terminate the supply of the service or part of the service to you with immediate effect if
- you default in the payment of any charges by the due date and fail to remedy such default within 7 days of written notice from us;
- you default in the performance or observance of any obligation under this Standard Agreement and, in the case of a breach capable of remedy, you fail to correct that breach within 14 days of written notice from us;
- we reasonably suspect fraud or misuse of the service on your part;
v) Either party may at any time without liability terminate this Agreement, with immediate effect from the date of service of a notice (or with effect from such later date as the Affected Party may nominate in such notice), if an Insolvency Event occurs with respect to the other party;
vi) On termination for any reason all charges and other amounts owing by you to us shall become immediately due and payable;
vii) Although we will endeavour to give you as much notice as reasonably practicable, we may, without liability, suspend the service immediately (including without notice):
- if we are required to comply with an order, instruction or request of a government agency, emergency services organisation or other Australian government authorities;
- if we are required to undertake emergency repair, maintenance or service of any part of the Websecure service facilities;
- if it is reasonably required to reduce or prevent fraud or interference within the Websecure service facilities; or
- as an alternative to the exercise of our rights of termination under this Agreement.
viii) On termination the Customer’s right to use the Services ceases immediately. The Customer agrees to not hinder Websecure in doing all things necessary to recover and remove Websecure equipment from Customer premises.
ix) Termination will not affect any rights or liabilities that have already accrued to either party nor will it affect any provision which is expressly or by implication interned to operate after termination.
Billing
i) We will endeavour to invoice you monthly but reserve the right to bill at different intervals. We will provide you with a breakdown of the fees and charges payable in each invoice. Our records will be conclusive evidence of usage of the service and the charges payable by you. Notwithstanding this, you may dispute an invoice of you reasonably believe that you are not liable to pay the charges because of an inaccuracy, omission or error in the invoice. For the avoidance of doubt, this does not affect your obligation to make payment in full by the due date. If the parties agree that the dispute is valid, your account will be credited the relevant amount;
ii) We will invoice for, and you will be liable for all charges in respect of the service commencing on and from the service start date;
iii) Unless otherwise expressly stated in the Agreement, we will bill you a. in advance for installation and recurring charges; and b. in arrears for usage based charges
iv) Processing and verification procedures (including delays in receipt of billing information) may mean that not all charges during the period covered by a bill can be included in that bill. We may include those charges in subsequent bills;
v) We reserve the right to re-issue any bill if any error is subsequently discovered;
vi) You are liable for all charges whether or not you authorised the particular use of the service by another person and you will continue to be liable for the charges if you allow another person to occupy your premises or use the service.
Payment
i) Where a minimum monthly fee is specified and agreed in the application for service, that amount will apply even if you have incurred lower usage or no usage in that calendar month;
ii) You must pay all fees and charges by due date. Failure to make payment will constitute a material breach of the contract such that Websecure has the rights to, or may immediately, suspend and/or terminate any or all of the service provided that three (3) business days notice of such suspension or termination has been provided to you by Websecure and the relevant invoice still remains outstanding;
iii) We reserve the right to charge interest at 2.5% per month on any part of the charges or any applicable tax not paid to us by the due date. You will be liable to pay to us all expenses (including reasonable legal costs and expenses and the fees of our debt recovery agents) incurred by us in relation to recovering payments due under this Standard Agreement;
iv) We reserve the right to withdraw any discounts that you receive from us in connection with the supply of the service where payment is not received;
v) The charges for the service do not include any amount on account of tax. If any tax is payable by us in relation to, or on any supply under or in connection with, this Standard Agreement, we will increase the charges or charge you an additional amount on account of the tax. These will be your responsibility and will be itemised on your bill or an adjustment note;
vi) Where we become liable to any penalties or interest as a result of the late payment of any tax (whether the tax is included in a an amount of consideration expressed in this Standard Agreement or not), due to your failure to comply with the terms of this Standard Agreement or your obligations under any applicable law, then an additional amount equal to those penalties and interest will be payable to us;
vii) You acknowledge and agree that we may at our discretion pay commissions to any of our agents, representatives or retailers who introduce you to us.
Payment by Credit Card
i) You may authorize us to use your credit card to make
- a one off payment for goods and services,
- regular, automatic payments of invoices on due date, and
- automatic top-up payments from time to time to keep the outstanding amount below the credit limit
ii) You must sign a “Credit Card Authorisation Form” to authorise us for making payments by credit card.
iii) You must inform us immediately if you change credit card or if the card is stolen or if you know the card is being used fraudulently
iv) We have the rights to suspend or terminate all or part of the service if, for whatever reasons, the payment request is rejected by the bank or there is a charge-back, resulting in us not receiving the amount invoiced.
Credit Check
We will conduct credit check on you and your company based the financial statements and trade references provided by you. We rely on you to provide accurate and up-to-date information for us and our credit agency to make proper assessment.
Security Deposit
We may request you to provide a security deposit at least equal to your estimated monthly liability with us. We may review the sufficiency of the security deposit from time to time and may increase the amount required by notice in writing to you. The security deposit may be in one of the following forms:
i) cash to be held by us; or
ii) a bank guarantee in a form acceptable to us.
Credit Limit
Websecure will advise you the credit limit that applies to the operation of the service. Notwithstanding any other term in the contract, if any time the unpaid charges for the service, whether invoiced or not, exceed the credit limit, Websecure will immediately notify you to reduce the unpaid charges to an amount less than the credit limit. In the event that you fail to reduce the unpaid charges to an amount less than the credit limit within three (3) business days, this will constitute a material breach of the contract such that Websecure may immediately suspend any or all of the services without the need for any further notice to you.
Personal and Credit Information
i) You authorise us to collect, use and disclose personal information about you and your company for the primary purpose of the supply of the service to you. If you do not provide all the personal information we request from you, we may be unable to supply the service to you or we may be restricted in the way we supply that service to you;
ii) You authorise us to collect, use and disclose personal information about you for purposes including the following:
(a) assessing creditworthiness
(b) all purposes associated with provision of the service to you including billing and account management;
(c) to provide you with information about products and services which we, or any of our partners or affiliates, may provide to you;
(d) implementing this Standard Agreement;
(e) business planning and product development; and
(f) complying with legal requirements.
iii) You acknowledge and agree that in certain circumstances, we may be permitted or required by applicable laws to use or disclose personal information about you. Such use and disclosure may include:
(a) disclosures to law enforcement agencies or purposes relating to the enforcement of criminal and otherlaws;
(b) uses or disclosures in accordance with court orders or if required or authorised by law;
(c) uses or disclosures to lessen or prevent serious threats to an individual’s life, health or safety or to public health or safety; or
(d) uses to assist in internal investigations conducted by us into suspected fraud, misuse of the service or other unlawful activities.
iv) We will provide you with access to any of your personal information held by us, at your request. We reserve the right to charge a reasonable fee for the provision of this information. We agree to correct or amend any of your personal information held by us which inaccurate or out of date, at your written request;
v) We will handle your personal information in accordance with the requirements of relevant laws and industry standards;
vi) We may at any time in our absolute discretion:
(a) intercept the service or the data being transmitted over the service for the purpose of complying with our obligations at law; and
(b) monitor the use of the service.
vii) Subject to the obligations under the Privacy Act, we may give the information to credit agency to obtain a consumer credit or commercial credit report about you or to allow the credit reporting agency to create or maintain a credit information file about you. You agree that we may disclose a credit report about you to any credit provider, debt collecting agency or any other supplier for the purposes of assessing your creditworthiness or to collect overdue payments.
viii) You authorise us to see from or give to:
(a) other credit providers;
(b) other carriage service providers;
(c) credit reporting agencies;
(d) other suppliers or
(e) any other person or body carrying on the business or undertaking involving the provision of information about commercial credit worthiness.
Information about your commercial activities, your creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act or for purposes permitted under the Act.
ix) You authorise us to obtain and use your personal information for the purposes of:
(a) assessing and processing your application for service
(b) assessing any application by you for credit or commercial credit to be provided by us; and
(c) establishing your account and the ongoing credit management of your account, including collecting payments that are overdue in respect of any credit or commercial credit provided by us.
x) You must also provide to us, or any independent person nominated by us, within 10 business days of our request, any information(including your financial accounts) or any consent you are capable of giving, which is necessary for a person to comply with any request from us to conform your creditworthiness.
xi) We may:
(a) refuse any application for;
(b) monitor the usage of;
(c) restrict your access to;
(d) suspend; or
(e) cancel,
the service on the basis of our credit assessment of you after consultation with you to confirm the accuracy of the assessment.
Liability Limitations
i) You as a customer agree to defend, indemnify and hold harmless Websecure, its officers, directors, employees and agents who furnish equipment and services to customer in connection with the supply of service and quotation, from any and all claims, losses, damages, fines, penalties, costs and expenses, (including, without limitation reasonable attorney fees) by, or on behalf of customer or any third party, or user of customer’s service, relating to the service agreement, equipment and services. This paragraph shall survive the termination of the service agreement.
ii) In no circumstances shall Websecure be held liable for any consequential loss in respect to any late delivery and failure of any of the components of this Agreement including the hardware, software and services.
Non Disclosure & Confidentiality
Websecure and the Customer shall only use and hold confidential information using the same degree of care as it normally exercises to protect its own proprietary information, but not less than reasonable care, taking into account the nature of the information, and shall disclose the information only to its employees who have a need to know, shall cause its employees to comply with the provisions of this agreement, and shall prevent disclosure of information to third parties except as compelled by law. Confidential information includes but is not limited to information relating to Websecure service and the Customer’s company information which is not disclosed in brochures or other promotional materials available in the public domain.
Disputes
i) The parties will use their reasonable endeavours acting in good faith to resolve any dispute arsing under this Agreement as soon as reasonably possible. Any dispute except for a dispute over non-payment of properly invoiced charges that cannot be resolved by the parties within a reasonable time will be referred to the Heads of each party who will resolve the issue through good faith negotiation. If the parties are still unable to resolve the dispute after a period of 7 business days, if the parties agree at an earlier stage, the dispute shall be referred to a mediator.
ii) The mediators will have appropriate qualifications and practical industry experience to resolve the particular dispute and such appointment shall be agreed by the parties within 3 business days of the decision to refer the matter to a mediator. In the event of a failure to agree on a mediator, a mediator will be appointed by the President of the Law Society of NSW on the application of either party.
iii) The parties will provide the mediator within seven business days with all the information relating to the particular dispute under such confidentiality obligations as reasonable under all the circumstances.
iv) The mediator shall be instructed by the parties to use all reasonable endeavours to resolve the dispute within 10 business days following receipt of the information or if this is not possible, so soon thereafter as may be reasonably practical and the parties shall co-operate fully with the mediator to achieve this objective.
v) The fees and expenses of the mediator will be borne equally by the parties.
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Form of Agreement