Terms of Use - Network Services

COMM SPEC Pty Ltd trading as Kinnekt

COMM SPEC Pty Ltd has partnered with Infinite Networks to provide Business Grade Voice and Data solutions.

These terms and conditions apply to the use of Broadband Services (“Services”) provided by

Infinite Networks ABN 80 097 243 055.

These terms and conditions should be read in conjunction with our Acceptable Use Policy, Bandwidth Usage Policy and Privacy Policy.

1. About this Agreement

Please read this Agreement carefully.

Use of Services provided by Infinite Networks (in this agreement, “our”, “us”, “we”) is subject to the terms and conditions contained in this Agreement, as well as any additional terms and conditions contained in individual service agreements made by the parties. The terms and conditions set out in individual service agreements override this Agreement to the extent of any inconsistency.

By commencing use of Services provided by Infinite Networks, you accept all terms and conditions contained in this Agreement and in the Acceptable Use Policy, Bandwidth Usage Policy and Privacy Policy.

2. Definitions

In this Agreement:

“Agreement” means this agreement for the provision of the Services by Infinite Networks to you;

“Billing period” means, initially, a one-month period commencing at the Date of Commencement, and subsequently, each one-month period thereafter. The “Forthcoming Billing Period” means the billing period immediately following the current billing period.

“Charges” means the charges payable by you to us pursuant to this Agreement including, but not necessarily limited to, access, usage, consulting and technical support fees;

“Date of Commencement” means the date on which Services are installed, commence operation and are billed from;

“GST” has the same meaning as it does in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Instalment Period” means a period no more than one month immediately following the Date of Commencement.

“Services” means the Broadband ADSL connection to the Internet and corollary services, such as online account management, personal email addresses and the provision of web space.

“Third Party Supplier” means any legal person who provides us with goods or services related to the provision of Broadband ADSL Services.

“Usage” means the measurement of time or data generated by Your Internet Access

3. Applicable Law

This Agreement is governed by the law in force in the Australian Capital Territory at the time that Services commence. The parties irrevocably submit to the jurisdiction of the Courts of the Australian Capital Territory for determining any dispute concerning this Agreement.

4. Term of Agreement

4.1 This Agreement applies to the provision of Services from the date that Services are connected and continues until either the contract expires or we terminate the Agreement in accordance with Clause 10.

4.2 Unless otherwise specified in an individual service agreement, you undertake to pay for the agreed Services for a minimum period of six months (six billing periods) from the date of commencement. This period is referred to as the “initial contract period”.

5. Our Obligations

5.1 In accordance with the terms and conditions of this Agreement, we will take all reasonable steps to provide you with the agreed Services and to ensure continuity of the Services. However, there is no guarantee that the Services will be either uninterrupted or error-free.

5.2 We undertake to provide a reasonable level of technical support in instances where Services are interrupted or delayed (See Clause 8). However, we do not undertake to provide training in the use of the Services.

5.3 While we take great care with information that you deposit with us, we do not guarantee that all such information will reach its intended destination (including electronic mail) inside or outside our network.

6. Your Obligations

6.1 You are responsible for all carrier charges (e.g. Telephone) associated with connecting to our Services.

6.2 You are responsible for obtaining, providing and maintaining all telephone access lines, telephone and computer equipment (including a modem) or other access device(s) necessary to access the Services.

6.3 You are responsible for any collection fees (including legal fees and any other costs) incurred by us as a result of the collection of outstanding monies owed by you to us under this Agreement.

6.4 You agree that you will:

6.4.1 Not interfere with the normal operation of the Services or any equipment used in the provision of the Services, or make either unsafe;

6.4.2 Allow us or any third party supplier safe, sufficient and timely access to any premises as required in connection with the provision, maintenance, repair, de-commissioning and removal of the Services or any equipment used in the provision of the Services; and

6.4.3 Permit us or any third party supplier to modify any equipment used in the provision of the Services where we consider such modifications to be necessary.

7. Goods & Services Provided By Third Party Suppliers

The following provisions apply where the Services include the provision of goods or services acquired from a third party supplier:

7.1 Any transmission (or connection) speeds quoted by us refer to the maximum theoretical speed achievable with the Services under ideal conditions. You acknowledge that the actual achieved speeds may be less than the maximum theoretical speeds.

7.2 Any general statements, maps or other indicators of Service availability are only a guide and you must not rely upon such statements, maps or other indicators as a commitment to provide the Services to a particular physical location.

7.3 Services are provided on an ‘as-is’ basis and we cannot guarantee the provision of the Services to you to the extent that the Services are reliant upon the provision of goods or services by a third party supplier.

7.4 You agree that we may terminate (or suspend in accordance with Clause 9.3) the provision of Services to you if a third party supplier ceases to provide the relevant goods or services to us for any reason. Alternatively, we may in our discretion elect to obtain the relevant goods or services from another third party supplier and continue to provide the Services to you. We may also increase the Charges to include any additional amounts that we are required to pay to the new third party supplier. We will notify you of additional charges in advance, and in writing.

8. Technical Support

8.1 We undertake to provide free technical support via telephone or electronic mail – during the period where your Services are initially connected (the “Instalment Period”) or when additional Services are purchased from us. The maximum Installment Period will be no longer than one month.

8.2 Technical support is available outside the Installment Period. We will only provide free technical support for faults originating within our system. Technical supports faults outside our system, specifically faults relating to your software or hardware, will be charged at rates published on our website.

9. Suspension of Services

9.1 We reserve the right to immediately and without notice and without prejudice to our rights of termination under Clause 11, suspend your access to Services if we:

9.1.1 Reasonably consider that you have failed to comply with any provision of this Agreement; or

9.1.2 Suspect that you have breached our Acceptable Use Policy.

9.2 If we suspend your access to Services under Clause 10.1, we may reactivate your access to Services if we are subsequently satisfied that you are not in breach of any provision of this Agreement.

9.3 We may from time to time and without notice, suspend your access to Services due to a technical failure (including any failure caused by a third party supplier ceasing to provide us with goods or services), or where modification or maintenance is being carried out in relation to the Services. We will use all reasonable endeavours to end any such suspension of Services as soon as practicable.

9.4 Notwithstanding any suspension of your access to Services under Clause 9, you will remain liable for any costs incurred by us or a third party during the period of suspension.

9.5 We do not accept any liability for expenses or damages incurred during the period where Services are suspended under Clause 9.1 or Clause 9.3.

10. Termination

10.1 We may terminate this Agreement immediately by notice in writing where:

10.1.1 We have suspended your access to Services under Clause 9.1 and we have not reactivated your access to Services under Clause 9.2 within seven (7) days of suspension;

10.1.2 A third party supplier ceases to provide goods or services to us that are necessary for the continued provision of the Services;

10.1.3 You are in breach of any term of this Agreement and this breach is not remedied within seven (7) days of us notifying you;

10.1.4 We believe you are about to or may become or are in jeopardy of becoming subject to any form of insolvency administration;

10.1.5 If you, being a partnership, dissolve, threaten or resolve to dissolve or are in jeopardy of dissolving;

10.1.6 If you, being a natural person, die; or

10.1.7 You cease or threaten to cease conducting business in the normal manner.

10.2 In the event that this Agreement is terminated, we claim the right to:

10.2.1 Retain all monies paid for Services;

10.2.2 Charge a reasonable sum for work performed in respect of which no sum has been charged or monies paid;

10.2.3 Be discharged from any further obligations under this Agreement; and

10.2.4 Pursue any additional or alternative remedies provided by law.

10.3 Upon the expiration or termination of this Agreement for any reason, the provisions of Clauses 11, 13, 14 and 16 shall remain in force in accordance with their respective terms.

11. Quotations

11.1 All quotations issued by us in respect of the Services, unless otherwise stated, are valid for seven (7) days from date of issue and are subject to these terms and conditions. All quotations include any GST payable in connection with the provision of the Services.

12. Charges

12.1 All Charges, including set-up and access fees, are payable in advance and must be paid on or before the first day of each billing period.

12.2 Unless otherwise specified by the parties in the individual services agreement, the billing period will be monthly.

12.3 Invoices of Charges for each forthcoming billing period will be delivered via electronic mail, postal mail or facsimile fourteen (14) days prior to the commencement of the billing period.

12.4 An invoice presented by us shall be deemed to be a correct statement of all Charges, unless disputed by you, in writing, prior to the commencement of the forthcoming billing period.

12.5 Where Charges are not paid on or before the first day of a billing period, an overdue notice will be issued. If payments are not received by the date specified on the overdue notice, we may:

12.5.1 Suspend your access to the Services without notice until all outstanding monies are paid in full;

12.5.2 Charge you an additional fee for any subsequent re-connection to the Services;

12.5.3 Require you to pay us interest on any monies owing to us at a rate equivalent to the prime rate charged for bank overdrafts by our current bankers at that time. Interest will be calculated from the original due date until all outstanding monies have been paid in full; and/or

12.5.4 Terminate this Agreement (as set out in Clause 10.1.3);

12.6 If we terminate this Agreement under Clause 12.5.4:

12.6.1 We will be entitled to remove any of our equipment used by you in connection with the Services, and you must allow us to enter any premises in which our equipment is stored in order to facilitate this removal;

12.6.2 Where you operate a business in which the Services we sell to you are sold on to third parties, you automatically hereby assign or transfer to us your title to any business information or data owned and used by you in connection with the Services (including without limitation your customer lists and customer database), effective as of the date of termination of this Agreement; and

12.6.3 You consent to us entering the premises on which the items referred to in Clause 12.6.2 are stored or may be accessed or located, in order to enforce our rights to possess, use and sell those items;

12.6.4 We will re-assign or re-transfer to you any items that remain after all amounts owed to us by you under this Agreement have been paid by you or satisfied by the sale or use of the items referred to in Clauses 12.6.2-12.6.3.

12.7 Service suspensions will be promptly removed on receipt of full payment of all outstanding Charges owed to us under this Agreement.

12.8 Where you request us to invoice amounts owing under this Agreement to a nominated credit card or bank account:

12.8.1 You will give us the authority to complete and sign on behalf of yourself, all necessary forms and documents to facilitate payments from the relevant bank or other financial institution; and

12.8.2 You will operate the credit card or bank account within the set terms and credit limits in order to pay your account in full prior to the commencement of the forthcoming billing period.

12.9 The amounts payable by you to us for, or in connection with, the Services under this Agreement will include any GST payable in connection with the provision of the Services. We will provide you with invoices in the form of tax invoices.

12.10 If the rate of GST increases, the amounts payable by you to us for, or in connection with, the Services under this Agreement shall be increased by an amount to reflect the increased GST amount.

12.11 In the event where your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full, including legal demand costs.

13. Indemnity

13.1 You release and indemnify us, our agents and third party suppliers from all liability arising from the provision or cancellation of the Services or any goods or services provided by our third party suppliers. This indemnity includes but is not limited to an indemnity against all actions, claims and demands including the cost of defending in or settling any action, claim or demand, which may be instituted against us, as well as all expenses, losses, damages and costs that we may sustain or incur as a result, whether directly or indirectly of:

13.2 Any breach of this Agreement by you, including but not limited to a breach in respect of which we elect to terminate this Agreement;

13.3 The negligence of you, your agent, your employee or sub-contractor or of any other person for whose acts or omissions you are liable; and

13.4 Any loss of or damage to any property, or injury to or death of any person, caused by any negligent act or omission or wilful misconduct of you, your agent, your employee or sub-contractor.

14. Our Liability

14.1 We make no express warranties to you except those expressly set out in this Agreement.

14.2 We do not exclude or limit the application of any provision of any statute, including the Trade Practices Act 1974(Cth) and Fair Trading Act 1992 (ACT), where to do so would contravene that statute or cause any part of Clause 14 to be void.

14.3 We exclude:

14.3.1 From this Agreement all conditions, warranties and terms implied by statute or general law except any implied condition or warranty the exclusion of which would contravene any statute or cause this clause to be void;

14.3.2 All liability to you in negligence for acts or omissions of us or our employees, agents or sub-contractors arising out of and in connection with this Agreement.

14.4 Our liability to you for breach of any express provision of this Agreement is limited to supplying, replacing or repairing the goods or re-supplying the Services in respect of which the breach occurred. Alternatively, we will refund any money paid by you for the goods or services in respect of which the breach occurred.

15. Changes to the Services, including Cancellation

15.1 All requests to change your Services, including upgrading, downgrading, temporary suspension or cancellation, must be in writing. Such requests will take effect on the first day of the next billing period and will be reflected in the Invoice sent to you fourteen (14) days in advance of that period. In the case of temporary suspension of Services, it is your responsibility to contact us to request the reactivation of the Services.

15.2 Unless otherwise specified in accordance with Clause 4.2, you undertake to pay for the agreed Services for a minimum period of six months (six billing periods) from the date of commencement. If you cancel access to Services before the conclusion of this initial contract period, you are still liable to pay the full cost of the agreed Services until the initial contract period concludes.

16. Our Refund Policy

This clause only applies to accounts which have been active longer than the initial contract period.

16.1 Where you voluntarily cancel one or more Services, you are not entitled to any refund, even where you have paid for Services for a period beyond the current billing period.

16.2 If we terminate a Service under Clause 10, the provision of the Service to you will cease in accordance with the provisions of that Clause. You will not be entitled to any refund.

16.3 If you validly terminate this Agreement as a result of our breach, you are entitled to a refund of the unused portion of your account. We reserve the right to deduct an administration fee equivalent to one month’s Services charges from this amount.

17. Assignment

17.1 Your rights and obligations under this Agreement shall not be assigned, sold, delegated, alienated, transferred or otherwise disposed of without our consent.

17.2 Infinite Networks will inform you, in writing, of its intention to assign its rights and obligations under this Agreement at least twenty-eight days prior to such an assignment occurring.

18. Force Majeure

18.1 No party is liable for any failure to perform or delay in performing its obligations under this Agreement if failure or delay is due to anything beyond that partyÕs reasonable control. Where the failure or delay exceeds sixty (60) consecutive days, the other party may terminate this Agreement with immediate effect by notifying the other party in writing. This clause does not apply to any obligation to pay money.

19. Severability

19.1 The parties to this Agreement agree that if any provisions of this Agreement shall be determined to be void by any Court of competent jurisdiction such determination shall not affect any other provision of this Agreement and all other provisions shall remain in full force and effect.

20. Waivers

20.1 A waiver of a provision of this Agreement or a right or remedy arising under this Agreement, including this clause, must be in writing and signed by the party granting the waiver. Unless otherwise specified a waiver is valid for 7 business days.

20.2 A waiver is only effective in the specific instance and for the specific purpose for which it is given.

20.3 A single or partial exercise of a right does not preclude a further exercise of that right or the exercise of another right.

21. Amendments to these Terms and Conditions

21.1 We reserve the right to amend these terms and conditions from time to time. Such amendments will be posted on our website and take effect 28 days after the day the amendments are posted. Customers are permitted to cease using our services within this 28-day notice period without penalty. Your continued use of services following such notification will be taken as an agreement to be bound by the terms and conditions as amended.

22. Entire Agreement

22.1 This Agreement contains the whole understanding between Infinite Networks and You to the exclusion of any prior or collateral Agreement or understanding of any kind relating to the Services.

22.2 Clause 22.1 does not apply to an individual service agreement made by the parties.

Acceptable Use Policy

Infinite Networks Acceptable Use Policy (AUP) (Effective 24 November 2003)

Infinite Networks Pty Ltd (ABN: 80 097 243 055)

This is the Infinite Networks Acceptable Use Policy, which forms part of Infinite Networks User Agreement Broadband Terms and Conditions and Infinite Networks Hosting Terms and Conditions. (The definitions in respect of the terms used in this Policy are contained in the Broadband Terms and Conditions).

1. You must not access, nor permit any other party to access, the Services for any purpose or activity of an illegal, fraudulent or defamatory nature.

2. You must not use the Services to make available online any material that is illegal, including but not limited to material that is classified or would be classified as RC or X under the National Classification Code set out in Schedule 5 of the Classification (Publications, Films and Computer Games) Act 1995 (Cth), nor will you use the Services to provide unrestricted access to material online that is unsuitable for minors.

3. You acknowledge that any material that you make available online using the Services is your own responsibility and that we accept no liability for any such material.

4. You must not act through the Services to block or disrupt access to the Internet by other users, service providers, their computers, software or hardware. Such actions include, but are not limited to, attempting to gain unauthorised access to another computer system, unauthorised copying, modification or destruction of information held on another computer system, unauthorised copying or dissemination of material protected by copyright or propagating computer viruses, worms and other types of malicious programs.

5. You must not transmit threatening, obscene or offensive materials, or engage in any form of harassment when using the Services.

6. You agree to refrain from sending unsolicited bulk commercial email, including the use of other non-consenting mail relay systems.

7. You must not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information or material of any kind (including but not limited to information or material accessed through or received from the Services) that infringes any copyright, patent, trade mark, design or other intellectual property right or, in our reasonable opinion, is likely to mislead or deceive any person accessing the relevant information or material.

8. You are responsible for: obtaining all necessary permissions, authorisations, licences and consents in relation to the use of any third party materials used in the provision of the Services; and payment of all royalties and other fees associated with the use of such third party materials, and you must indemnify us in respect of any liability arising directly or indirectly from a failure by you to observe your obligations under this clause.

9. You must respect the privacy of others when accessing and using the Services.

10. You must, in accessing and using the Services, only use software that you are legally entitled to use and such use must not infringe any third party intellectual property rights.

11. You acknowledge that we do not and cannot in any way supervise, edit or control the content and form of any information or data accessed through the Services and we shall not be held responsible in any way for any content or information accessed via the Services.

12. You acknowledge that we must comply with the Telecommunications Act 1997 (Cth) and other laws and directives from state or federal law enforcement agencies that have jurisdiction over the use of Internet services.

13. We disclaim all or any liability for any material on the Internet that you find offensive, upsetting, defamatory, personally offensive and in any way unsuitable for minors.

14. You are responsible for maintaining the secrecy and confidentiality of all access information required by you to access the Services, and you agree not to disclose to any other person, corporation, entity or organisation any access information, whether in use or not, nor any other confidential information relating to the Services.

15. You must notify us immediately if your username and password are lost, or you have reason to believe that someone other than you is using them. You will be liable for all fees resulting from use of the Services accessed through your access information, whether authorised by you or not.