To the fullest extent legally possible, all dealings between D2P Pty Ltd ACN 097 477 668 & each of its subsidiaries, divisions, affiliates, associated & related entities & its successors & assigns (“D2P”) & any Customer ("Customer") relating to any goods ("goods") or services (including but not limited to ADSL) ("services") are subject to the following Terms & Conditions of Trade (“these Terms otherwise agreed in writing.”)
1. D2P SUPPLIED EQUIPMENT & SERVICES
1.1. Provision of Services: D2P agrees to supply and the Customer agrees to acquire the Services under this Agreement. D2P may provide the Services using a combination of D2P's own facilities and those of Other Suppliers. D2P will not be liable where D2P's failure to perform or complete the Services is caused directly or indirectly by any act or omission of the Customer or any third party.
1.2. Suspension of Service: D2P reserves the right to suspend the provision of the Services, without liability to the Customer, if:
a) The Customer is in default of a payment obligation or any other obligation under this Agreement;
b)D2P is required to perform maintenance or other service work in connection with the Services; or c)D2P is required to comply with a request from a government agency or emergency service organisation.
1.3. Connection of Services: The Customer must nominate an existing telephone service for delivery of the services & the Customer will be responsible for all costs of the nominated service to their existing telephone carrier or to the telephone carrier of the Customer's choice.
a)If the ADSL connection is terminated due to, but not limited to, suspension of the Customer’s telephone service or a change of lessee/retail details, a charge will be payable to reconnect the service.
b)D2P does not guarantee provision of the services to every applicant. If the service is unavailable, D2P will notify the applicant, & will not be liable for any loss caused by rejection of the Customers application.
c) Changes to services at the Customer's request will incur a fee.
1.4. Interruption to Service: ADSL is not fault free & D2P does not guarantee uninterrupted services, ADSL, or its speed, performance or quality.
a)The Customer acknowledges that there may be a minor disruption to the nominated standard telephone service during installation or upgrade of the goods and/or services.
1.5. Third party carrier services: If D2P uses the services of a third party Carrier in providing the Services, the Customer agrees to fully comply with the relevant Carrier's terms and conditions of supply applicable to that Service to the extent necessary to avoid causing any breach of those terms and conditions by D2P.
1.6. If D2P provides Equipment to the Customer other than by sale, then:
a)The Equipment always remains the property of D2P; b) The Customer will ensure that it has all necessary consents and approvals (including landlord approval where applicable) necessary or desirable for D2P to deliver, install and maintain the Equipment at the Customer Premises;
c) The Customer will not part with possession of the Equipment except to D2P and will comply with all reasonable directions of D2P relating to D2P's rights of ownership of the Equipment;
d) The Customer will bear all risk in relation to the Equipment located at the Customer Premises; and e)Upon the termination of this Agreement, the Customer will, at its cost, return the Equipment to D2P in good working order and condition, failing which, the Customer will pay the retail repair cost or replacement cost of the Equipment in D2P's sole discretion. The Customer authorises D2P to obtain payment of any monies owing to it under this clause by way of direct debit from the Customer's relevant bank account.
1.7. Change of Equipment: D2P may at any time and from time to time change, modify or service the Equipment.
1.8. Access: The Customer grants to D2P a licence to enter the premises where the Equipment is located during normal business hours and at such other times as Customer and D2P mutually agree. The licence will not end until the Equipment is returned to the possession of D2P, even if this Agreement has terminated.
1.9. Interference: The Customer must ensure that the Equipment used in providing Services will not be altered, repaired, serviced or moved except by service personnel approved by D2P. Costs associated with the repair of equipment or subsequent down-time as a result of interference with D2P equipment is solely the responsibility of the client if action is taken without notifying D2P First, Including damages as a result of powering off or restarting a server.
1.10. Power Supply: The Customer will provide a suitable physical environment at the Customer Premises for the storage and operation of the Equipment. This will include ensuring that an adequate power supply for the operation of the Equipment used will be available.
1.11. If the equipment is damaged due to an inadequate power supply or environment the customer shall bear the cost of repair or replacement.
1.12. If D2P provides Equipment to the Customer by sale, then:
a) Property in goods shall not pass until payment in full of all monies owed to D2P on any basis ("Full Payment"). D2P's retention of title does not affect it's rights as an unpaid seller.
b)D2P may take possession & dispose of goods as it sees fit at any time until Full Payment & the Customer grants D2P an irrevocable licence to enter any property where any goods are, in order to do so & with such force as necessary.
c)D2P may use the Customer's name & to act on the Customer's behalf in exercising it's rights pursuant to these Terms & D2P will not be liable to any party for any costs, losses or damages suffered by the Customer or any third party in respect of D2P taking possession & disposing of any goods.
d) Immediately upon delivery the Customer accepts liability for goods.
e) A certificate signed by an officer of D2P identifying goods & certifying that monies are owing to D2P shall be conclusive evidence of D2P’s title thereto.
1.13. Goods & Services: D2P disclaims any responsibility or liability whatsoever relating to any suitability for any characteristic, particular purpose or process, and;
a)The Customer agrees to check & test all goods prior to use, alteration or application thereof whether in relation to any characteristic or suitability for any particular purpose or process or otherwise.
b)The Customer agrees to check all goods for compliance with all relevant applicable standards & regulatory bodies before use, & to use on-sell or apply same in accordance with all applicable standards, regulations & guidelines, with all manufacturers &/or D2P recommendations & directions as well as with good commercial practice.
c)D2P may update modify make substitution or alter any of its goods or any component incorporated in or used in forming any part of any goods as part of its ongoing business. The Customer agrees to accept current goods in substitution for any goods ordered provided they are not materially different.
d)D2P disclaims any responsibility or liability relating to any goods:
i) made to designs drawings specifications or measurements etc or with materials which are provided, required or approved (whether in part or fully) by or on behalf of the Customer.
ii) utilised stored handled or used incorrectly or inappropriately.
1.14. Resale: The Customer must not resell in part or whole services &/or bandwidth without prior consent of D2P.
1.15. Returns: If D2P elects to take back product it must be in as new & saleable condition & upon terms agreed & a re-stocking fee of not less than 15% of invoice value will apply if;
a)Custom made or custom processed goods or goods acquired by D2P specifically for the Customer will not be returnable.
b)Any goods which are accepted in writing by D2P as defective may be returned & will be replaced free of charge or be the subject of a credit for the invoiced value. Free of charge does not include any labour or transport.
2. PERIOD OF AGREEMENT
2.1. Commencement of Agreement: The Agreement starts on the date that the Application for Service is accepted by D2P Acceptance must be in writing, or by D2P commencing performance of the Services (whichever occurs first). Acceptance by D2P gives rise to a contract for the supply of Services in accordance with this Agreement.
2.2 Minimum Term:
a) The Minimum Term (where applicable) is the minimum period for which the Customer must remain on & is liable for payment of their D2P services from the time it is activated. If the Customer cancels the services before the end of the Minimum Term, they must pay out the remainder of such period.
b) Once the Minimum Term is over, the Customer’s service will continue to renew automatically, & the Customer will continue to be charged for the Service, until written confirmation of cancellation is received by D2P.
3.1. Termination by D2P: D2P may immediately terminate this Agreement or any part of this Agreement without prior notice to the Customer if:
a)The Customer fails to pay any fees or charges payable under this Agreement within 14 days of receiving a written notice to rectify the breach;
b)The Customer breaches a term of this Agreement (other than an obligation to make payment) (including a breach of any obligation set out in the schedule) and fails to rectify that breach within 14 days of written notice from D2P to do so;
c)The Customer fails to comply with any licence, permit or authorisation relating to the connection of equipment to the Service Access Line, or the use of the Services;
d)Customer is declared bankrupt, a receiver or a liquidator or provisional liquidator or an administrator is appointed to Customer or Customer enters into an arrangement with its creditors; or
e)In the case of the Customer being a partnership, the partnership is dissolved or an application is made for its dissolution.
3.2. Termination with Notice: Either party may terminate this Agreement after the minimum term is complete by giving 30 days written notice to the other, effective upon the date when the written notice is delivered to that other party, or upon such later date as specified in that notice.
3.3. Liability until Termination: The Customer remains liable for all charges payable under the Agreement in respect of Services up to the time of termination.
3.4. Accrued Rights Unchanged: Termination of this Agreement is without prejudice to the rights of each party against the other accrued up until the date of termination.
3.5. Termination by the Customer: The Customer may immediately terminate this Agreement or any part of this Agreement if:
a) D2P fails to comply with any licence, permit or authorisation relating to the provision of the Service Access Line or the provision of any Services;
b)D2P commits a material breach of a term of this Agreement (including a breach of any obligation set out in the schedule) and fails to correct that breach within 14 days of a written notice from the Customer to do so.
4. INVOICING & BILLING
4.1. Invoicing: D2P will invoice the Customer monthly but reserves the right to bill at different intervals.
4.2. Billing: D2P will bill the Customer:
a)In advance for design, installation, hardware, subscription, reporting, services and included traffic charges and in arrears for excess usage fees and;
b)For the Services and any other charges including fees payable to any Other Supplier either in the billing period following the billing period in which the charges and/or fees are incurred, or when those fees and charges become known to D2P, in the sole discretion of D2P.
4.3. Credit Limit: D2P can vary or withdraw any credit facility or limit at any time at its discretion & without any liability to the Customer or any other party.
4.4. Commission: The Customer acknowledges and agrees that D2P may, in its sole discretion, pay commission to any D2P agent, representative or other party who introduces the Customer to D2P.
4.5. Payment Terms: The Customer must pay all fees and charges charged under or in connection with the Agreement upon receipt of invoice (or such other terms noted in D2P's invoice &/or quotation) & without set off or deduction, unless otherwise agreed. D2P may elect to apply any payment first to any amounts owed for interest, administration & other costs before applying to any invoiced amount.
5.1. Price: The price for the Services is:
a)The price or relevant tariff plan specified in the Application for Service; or
b)Any other price or plan agreed in writing by D2P and the Customer.
5.2. Legal Fees: The Customer must pay all expenses (including legal costs and expenses and the fees of D2P's debt recovery agents) incurred by D2P in relation to seeking and obtaining payments due under this Agreement or otherwise enforcing this Agreement against the Customer.
5.3. Taxes: Any new, or increase in any tax (including Goods and Services Tax (GST), duty or impost of any kind chargeable in respect of the Services and this Agreement which come into effect after the date of the Application of Service must be paid by the Customer.
5.4. GST: The Customer must pay to D2P the GST and/or any other amount which is payable by D2P on account of goods and services tax, value added tax or any other like tax as a consequence of any supply made or deemed to be made under or in connection with this Agreement at the same time and in the same manner as making payment of any consideration on which the GST is calculated.
5.5. Alterations: If the Customer requests any alteration to the Services or to any product produced as a result of performing the Services, then D2P will, within ten (10) Business Days of such request, prepare a written proposal indicating any additional charge for such alteration and the time within which the alteration will be effected.
5.6. Interest is due on overdue accounts calculated from the date of the invoice, at the rate under the Penalty Interest Rates Act 1983 (Vic) plus 3% & a monthly admin. fee of $25.00.
5.7. Usage: The Customer must ensure security all connections, including wireless connection as well as keep confidential any codes, passwords or other security information provided to them & notify D2P of any disclosure.
a)The Customer must pay for all usage charges generated through their Username & Password or their D2P Account.
b)Excess usage charges must be paid for by the Customer.
c)D2P's internal records or that of its suppliers shall be deemed to be conclusive evidence of the Customer's excess usage.
6. TRANSFERRING CUSTOMER ACCOUNTS
6.1. Transferring from a current supplier to D2P: If D2P informs the Customer that a change in the Customer's then current arrangements with any Other Supplier is necessary for performance of the Services, then the Customer consents to the following procedures:
a) D2P may advise the Customer's Other Supplier of the change required (including that the Services are to be provided by D2P instead of the Other Supplier) and to sign on the Customer's behalf and in the Customer's name the forms of authority to the Customer's Other Supplier to affect the change;
b)If D2P requests, the Customer will give written instructions to the Other Supplier to effect the change; and
c)Where services are to be provided by D2P in place of the Other Supplier, D2P will manage the re-delegation of the Customer's email hosting records and domain names and will sign on the Customer's behalf and in the Customer's name the necessary forms of authority to effect the change.
6.2. Transferring from D2P to any Other Supplier: If the Customer requests D2P to transfer any services provided to the Customer to any Other Supplier, the Customer remains liable to D2P for the amount payable for the service up to the date when D2P transfers those accounts to any Other Supplier. Subject to the notice required in this agreement.
7. UNAUTHORISED ACTIVITIES
7.1. The Customer must not use the goods or services in a way or post to or transmit to or via the goods or services any material which interferes with other users or defames, harasses, threatens, menaces, offends or restricts any person or which inhibits any other customer from using or enjoying the goods or services.
7.2. The Customer must not use the services to send unsolicited electronic mail messages.
7.3. D2P may suspend without notice any Customer’s account involved in offensive &/or illegal activities.
7.4. The Customer must not assign or other deal with the Customers rights under these Terms & Conditions.
7.5. The Customer must not use the services in the use of peer-to-peer download services. Services may be suspended without notice for sharing copyrighted material.
8. OWNERSHIP OF INTELLECTUAL PROPERTY
8.1. Ownership by D2P: The Customer acknowledges, confirms and agrees that copyright and all other applicable intellectual property rights in respect of all programs, software, hardware, drawings, know how, techniques, source and object code, formulae, concepts not reduced to material form, designs, plans, proposals models and intellectual property developed and contributed by D2P in connection with the Services will remain at all times the sole property of D2P and may be sold, licensed and exploited by D2P in its sole discretion and for its sole benefit provided that in so doing, D2P does not breach the terms and conditions of this Agreement.
8.2. If D2P utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer the Customer indemnifies D2P against any claim proceeding damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.
8.3. Any sale to the Customer does not confer any license or right under copyright, patent, design or trade mark or any other intellectual property right ("intellectual property").
8.4. The Customer may not advertise, use or represent any intellectual property of D2P or any image of or associated with goods or services themselves in any way without the prior written consent of D2P.
9. LIMITATION OF LIABILITY:
9.1. The Customer will limit any claim upon D2P relating to goods, to the cost of replacement of goods or the supply of equivalent goods & relating to services, to the cost of having services supplied again.
9.2. D2P shall not be liable for any claim arising after 7 days from delivery of goods or performance of services (or at all once goods have been unpacked, modified, on-sold or otherwise used or applied) after which there shall be deemed to be unqualified acceptance.
9.3. D2P will not be liable in any way for any loss of business, contingent consequential direct indirect special or punitive damage arising whether due to D2P's negligence or otherwise & the Customer acknowledges this limit of liability & agrees to limit any claim accordingly.
9.4. No other term condition agreement warranty representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon D2P is made or given.
9.5. D2P is not liable for any costs associated with the Customers nominated telephone line including, but not limited to, installation costs & line rental/maintenance costs.
9.6. D2P is not responsible for any loss incurred by the Customer because of faults &/or failures within a third party carrier's network infrastructure.
9.7. Customers use ADSL service at their own risk & D2P is not responsible for data downloaded &/or content stored on the Customer's computers.
9.8. The Customer indemnifies D2P against all liability, costs, loss or damage, suffered or incurred by D2P, its suppliers, employees, contractors & assignees arising from their use of the goods and services.
9.9. The Customer indemnifies D2P against any claim or loss arising from or related in any way to any dealing between D2P & the Customer or anything arising there from or arising as a result of or subsequent to any breach of these Terms.
10.1. Title to the Confidential Information: D2P retains all property rights in the Confidential Information.
10.2. Non-Disclosure: The Customer will keep all Confidential Information confidential and will not allow it to be recorded or copied in any way without D2P's prior written consent.
10.3. Use of Confidential Information: The Customer will not use the Confidential Information for any purpose which may cause D2P loss, whether by way of damage to D2P's reputation, financial loss, or otherwise.
11.1. This Agreement shall be governed by and construed in accordance with the law of Victoria and the parties submit to the jurisdiction of the Courts of Victoria and any court hearing appeals from those Courts.
11.2. This Agreement contains the whole understanding of the parities to the exclusion of any prior Agreement, representation or understanding relating to the Services.
11.3. If any part of this Agreement is found to be void or unenforceable by a court of competent jurisdiction, that part shall be severed and the rest of the Agreement remain in force.
11.4. Force Majeure: D2P is not liable for any failure to perform, or for any delay in performing any of its obligations under this Agreement where such failure or delay is occasioned by strike or other industrial action; shortage of labour; failure or delays by Other Suppliers or contractors; legislative, governmental or other prohibitions or restrictions; fire, flood, war or other causes whatsoever beyond D2P's reasonable control.
11.5. Other Terms & Conditions & Notice: No terms &/or conditions sought to be imposed by the Customer upon D2P shall apply unless agreed in writing and the Customer will be deemed to have notice of any change to these Terms, immediately once D2P adopts them.
11.6. Waiver: If D2P elects not to exercise any rights arising as a result of breach of these Terms it shall not constitute a waiver of any rights relating to any subsequent or other breach.
11.7. Customer Restructure: The Customer will notify D2P of any change in its structure or management including any change in director shareholder management partnership or trusteeship or sale of any material part of its business within 7 days of any such change.
11.8. No assignment: The Customer may not assign or otherwise deal with the Customer's rights under this Agreement without D2P's prior written consent. D2P shall not unreasonably withhold it's consent.
11.9. D2P may assign is rights under this Agreement at any time in D2P's sole and absolute discretion.