SERVICE PROVIDER AGREEMENT - TERMS AND CONDITIONS SERVICE PROVIDER AGREEMENT -

TERMS AND CONDITIONS

Access Internet ADSL Service Agreement for "Flat Rate" Plan  24/09/2003

1. Information regarding this agreement

Please read the following information carefully.

The supply of Services under this agreement are provided by Access Internet ABN:

43 474 132 136 (in this agreement referred to as “our”, “we”, “us” or “Access”

or “Access Internet”) Access Internet may use third party suppliers and>contractors for the supply of services under this agreement.

By using the Access Internet’s network you have indicated your acceptance of all the terms and conditions referred to in the Agreement.

2. Definitions & Interpretation

“Agreement” means this agreement for the provision of services by us to you and includes the completed Schedule whether executed contemporaneously or not.

‘World Wide Web’ means a method of representing and obtaining graphical data and linking data items used by Internet users.

“Fair User Policy” fair user policy means additional conditions of use applicable to the service as published by Access Internet from time to time

;” Charges” means the charges payable by the customer to Access Internet pursuant to this agreement and includes connection,access, usage and other fees;

 “Default Fees” means all charges, cost and expenses we may incur in relation to a breach by you of your obligations to us

“Schedule” means the duly completed Residential ADSL – Registration Form and the Additional Information Required for ADSL connections form.

“Service: means interactive access by an Asymmetric Digital Subscriber Line to the Access Internet connection to the Internet, the provision of World Wide Web,data and the incidental storage of data; as described in this Agreement.

“GST” has the same meaning as described in “A New Tax System (Goods and Services Tax) Act 1999 and any related legislation.

“Service Commencement Date” means the date that your service is activated by us,as advised by us.

“Application Date” means the date your application is received by Access Internet either by online signup, fax or standard mail.

“Supply Period” is as described in section 4 of this Agreement

“Third Party Supplier” means any company that supplies Access Internet any component of this service.

“ Indemnity” you will Indemnity Access Internet against all claims. The customer releases and indemnifies Access Internet, its servants and agents from and against all actions, claims and demands which may be instituted against Access Internet arising out of a breach of this agreement by the customer or of any other person for whose acts or omissions the customer is vicariously liable.

Access Internet will not be responsible for failure to perform its obligations>due to force majeure, including without limitation, fires, floods, lightening, acts of terrorism, riots, labour disputes, transportation delays, shortage of labour, fuel, power, materials equipment, or any cause beyond the reasonable control of Access Internet. If an event of force majeure occurs, Access Internet may, during any period of shortage of supply of the service or any other delays as a result of force majeure, prorate its supply of services to be provided in such a manner as deemed equitable in the sole judgment of Access Internet.

In the event of a force majeure that shall continue for a period of at least three months, Access Internet may give a notice of immediate termination of this Agreement, without any liability to Access Internet as a result.

Implied Terms

3. Term of this agreement

This Agreement commences on the Application Date and will continue until Services are terminated by either party. If you terminate this Agreement you will remain liable for all Charges and all other amounts that you are required to pay under this Agreement.

4. Term of Supply of Service

The Supply Period of this Access Internet ADSL plan carries a six-month minimum term.

A termination notice must be received at least one month (30 days) before the end of the Supply Period. Any changes you make to your Service speed or Service address or Service plan will initiate a new Service Commencement Date,

thus resulting in a new Service supply term.

5. Termination

a written termination notice must be received, at least one complete month before the end of the Supply Period.

Termination cannot be effected prior to the expiration of a prepaid Supply Period.

6. Notices

Notices under this Agreement may be sent by via e-mail, fax, Australian post or on our home page at www.accessin.com.au and will be deemed given: - For ordinary mail, three days after dispatch by post.

7 Our obligations to you

Access Internet shall provide the customer with all identification and login information required for connection to the service.

In Accordance with the terms and conditions of this Agreement, we will use our best endeavours to provide you with a Service satisfactory to you and to provide the necessary information to access that Service.

Access Internet will use its best endeavours to ensure a continuous Service, however this is not guaranteed.

We will take care of any personal information you provide us, in accordance with the Privacy Act 2001.

While we will use our best endeavours to ensure the data you transfer will be received by the intended destination (including electronic mail) we cannot guarantee that it will reach the intended destination.

We will obtain and hold any necessary licenses required under law. We will not be responsible for training you in the use of this Service.

8. Customer obligations

The customer must provide its own access facilities.

The customer is responsible for maintaining the secrecy and confidentiality of all identification and login information required by the customer to access the service.

The customer agrees not to disclose to any other person, corporation, entity or organization any identification or login information, whether in use or not, or any other confidential information relating to the service or Access Internet.

The customer is liable for all fees resulting from use of the service accessed through the customer.

’s identification or log-in information, whether authorized by the customer or not.

The Customer must not contact any Third Party supplier with respect to support for this product. The customer will be liable for all costs incurred as a result of such contact.

An invoice raised by Access Internet shall be deemed to be correct and prima facie evidence of all charges contained therein.

The customer is liable for the cost of replacement of Customer Premises

Equipment where the equipment has been damaged, stolen or destroyed.

You will be responsible for any collection fees (including legal fees and any other costs) incurred by us as a result of the collection of outstanding monies including interest at the rate prescribed by the Supreme Court Act plus 4%

calculated daily and compounded monthly.

You will indemnify us in respect of all costs, damages and/or loss whatsoever including any third party claims or costs, howsoever arising from any default,breach or termination of this Agreement by you.

Should you terminate the Service prior to the expiration of a Supply Period you will immediately pay to us the Charges that would have been payable for the relevant Supply Period had the termination not occurred.

You agree that should you terminate your Service during a Supply Period that you will liable for all Charges that would have been incurred until the end of the Supply Period.

You agree that we may use a Third Party Supplier for the provision of this Service.

You agree that you will not contact any of our Third Party Suppliers for any reason. You agree that if you do contact one of our Third Party Suppliers that you will be liable for all costs imposed on us by our Third Party Supplier.

You acknowledge that our payment terms are strictly payment in advance, should your credit card not be able to be debited for any reason, you may be considered in default.

9. Service Description

The Service uses Asymmetrical Digital Subscriber Line technology.

Any transmission speeds referred to by us refer to the maximum theoretical speed achievable with the Service under ideal conditions, and you acknowledge that actual speeds may be different than the theoretical speeds. Speeds may vary for reasons which include but are not limited to: Third Party Supplier network congestion, Third Party Supplier line interference, Internet Congestion, and errors in the configuration of your equipment.

The Service is provided on an “as is” basis and we cannot guarantee the provision of the Service to you where the service is reliant on a Third Party Supplier.

You agree that only equipment certified by us, as listed and updated on our web site from time to time will be used with the Service.

You agree that any other telephony equipment used on the same line as the Service must be isolated from interference by the use of an ADSL line filter.

This is a Residential ADSL service and may not be suitable for some businesses.

The service is only available as an overlay to existing copper local loop provided by Telstra. Should you cancel your telephone service provided by the local loop, the Service will also cease to function.

There are no Service level guarantees for this ADSL service. We will use our best endeavours to provide timely restoration of service. 

  Additional Telstra service features may interfere with the supply of Service.

These include but are not limited to: Customer Loop Metering, In Contact,Payphone, Onramp, Line Hunt, and Siteline. A complete list may be available on request.

Customers must direct all service and performance enquires to Access Internet’s helpdesk, and not to our Third Party Suppliers. Calls regarding the Service made to Third Party Suppliers will incur a $130 charge to Access Internet, which will be invoiced to you by Access Internet and you agree to pay this fee along with a $10 handling fee.

Data travelling both to and from the Service will be metered as part of the included usage and excess usage charges where applicable.

Supply of this Service is limited to customers with a valid Credit Card or customers paying by non-refundable cheque/money-order three-monthly in advance.

10. No Liability

The customer releases and indemnifies Access Internet, its servants and agents from and against all actions, claims and demands which may be instituted against Access Internet arising out of a breach of this agreement by the customer or of any other person for whose acts or omissions the customer is vicariously liable.

The customer should understand that the product and service provided by Access Internet is a domestic use product. Access Internet will not prevent commercial use of the product, however provides no warranty as to the quality of the service for commercial use.

The customer releases and indemnifies Access Internet, its servants and agents against all costs, expenses, liability, loss or damage incurred or suffered by Access Internet in conjunction with any claims, actions or proceedings against Access Internet (including third party claims or claims by a Customer or Telstra) arising out of the following (to the extent that the liability is caused by the provision or cancellation of this Service):

Due to limitations provided on us by our Third Party Suppliers, the service is not guaranteed to work and there is no timeframe for the restoration of a service should it fail.

The Service can only be provided on a “Qualified Pair” as described by our Third Party Supplier.

You warrant that the End User to whom Telstra supplies a standard telephone service is the same End User of this Service.

You acknowledge that the Installation of the Service may cause temporary disruption to the standard telephone service used in this application.

You agree to release and indemnify Access Internet and our Third Party Suppliers for any and all liability arising from the following:

• Disruption in the delivery of your telephone service

• Cancellation of the Service for any reason

• Suspension of the provision of the service to particular Internet Protocol (IP) addresses

• Cancellation of, or refusal by our Third Party Supplier to provide services deemed by our Third Party Supplier to be incompatible with the provision of ADSL on the analogue line

11. Interference with the Service

You agree that you will:

• Not interfere with normal operation of the service or any facility, or make either unsafe.

• Allow any Third Party Supplier or Access Internet safe access to the customer premises if required.

• Ensure that our Third Party Supplier or Access Internet are provided with sufficient and timely access to the customer premises to enable our Third Party Supplier or Access Internet to provide the service.

• If you do not have control or have access to the premises in with the service is delivered, you must:

• Procure for our Third Party Supplier and Access Internet all such access to the premises as may be required.

• Indemnify our Third Party Supplier and Access Internet against any claim by the owner or occupier of the service premises, or any other person, in relation to the entry of those premises.

12. Acceptable Use Policy

You agree not to use your access for illegal purposes and to conduct yourself in a responsible and considerate manner, and acknowledge that cracking, hacking,crashing, spamming, network abuse, transmission or storage of copyright

infringing or any data which would contravene Australian laws relating to the production and distribution of pornographic material or distribution of virus is forbidden, as is unauthorised access to system areas and information on the

Access Internet network or any systems connected to the Access Internet network.

You agree to accept total responsibility for the content of files owned by you and stored on the Access Internet network, and also accept total responsibility for any data transferred or caused to be transferred across the Access Internet

network.

You agree that you will not breach any intellectual property rights, including hosting and/or posting any content which infringes on any copyright, trade mark, trade secret, patent or other property or other intellectual property rights of any third party unless you are the owner of, or have the permission of the owner to post or transmit the content.

You agree that you will not send unsolicited bulk commercial e-mail via any

method. Any unsolicited bulk commercial email sent through the Service may incur severe penalties including but not limited to service disconnection and/or complaint handling fees.

You acknowledge that we do not edit or control the content and form of any information or data accessed through the Service.

You are responsible for maintaining the secrecy and confidentiality of all access information required by you to access to the Service, and you agree not to disclose this to any other person.

You must notify us immediately if your username and/or password are lost or you think that someone may be using them. You will be responsible and liable for any unauthorized use of the Service.

You agree that Access Internet may block TCP/IP ports should we require so for network security or network efficiency.

13. Suspension of Services

Will take effect automatically and immediately upon contravening any payment terms (your account must be kept in advance at all times). Suspension will be implemented by suspending the service as we see fit. You shall remain liable for all charges due throughout the period of suspension. Suspension can be reversed upon all due payment and reactivation payment receipt.

Suspension will take effect if you continue to contravene the Acceptable Use Policy (as per section 12).

14. Fair Usage Policy

Access reserves the right to introduce a Fair Usage Policy, including changes to download allowances and/or plan extras, in the future by giving 30 days notice, via e-mail, fax, Australian post or on our home page at www.accessin.com.au.

15. Technical Support

Our Service includes free technical support for the installation and commissioning of Service. This support is only provided by Telephone and we are not able to provide on site visits. Support will only be provided for supported

applications and/or supported equipment – as deemed by Access support staff.

16. Access Internet IP Address Space

You agree that the IP addresses assigned under this agreement remain the property of Access Internet or a third party and that these IP addresses may change from time to time.

17. Governing Law

The agreement will be governed by and construed in accordance with the law of the state of Western Australia.

18. Assignment

Access Internet may assign any or all of the rights and obligations on its part contained herein. You may not assign any of your rights or obligations hereto.

19. Information

you authorise Access Internet to make enquires as to your credit rating at any time and to report any delinquencies and any other information concerning you.

20. No Data Transfer Limits (Flat Rate)

This ADSL plan has a no data transfer (download) limit in order to provide this>service as ‘flat rate’. Access Internet does not expect unreasonably high data usage and may intervene to cease such activity. Consistent downloading, above a utilisation level as deemed by Access Internets technical staff, may be deemed as network abuse as per section 12.

This ADSL service is a Residential product and not suitable for excessive downloading and doing so may impair the service for yourself and other subscribers.

Access Internet reserves the right to introduce a Fair Use Policy in the future, as per section 14. There are no bandwidth guarantees. This ADSL service is best effort delivery.

21. Amendment

Access Internet may amend this agreement from time to time by written or electronic or fax notice to you, and by updating the information on our website at www.accessin.com.au. The amendment will take effect unless you notify us in

writing of your objection. Any renewal in accordance with clause 4 subsequent to any amendment notice given by us will despite any objection by you, be on the amended terms.

This Agreement can only be varied as provided in this clause or by agreement of both parties.

Signed by Customer                               Signed on Behalf of

If business or

Company:    ____________________           Access Internet

Name   _______________________        Name:_______________________

If business or Company

Position:______________________      Position:______________________

Date:________________________          Date:________________________

Access Internet may terminate

This agreement supersedes all prior agreements, arrangements and undertakings

between the parties and constitutes the entire agreement between the parties

relating to the software. No addition to or modification of any provision of

this agreement shall be binding upon the parties unless made by written

instrument signed by a duly authorized representative of the party.

This agreement shall be governed by and construed in accordance with the laws

for the time being in force in the State of Western Australia, and the parties

agree to submit to the jurisdiction of the courts and tribunals of that State.

No forbearance, delay or indulgence by a party in enforcing the provisions of

this agreement shall prejudice or restrict the rights of that party, nor shall

any waiver of those rights operate as a waiver of any subsequent breach.

Any dispute or difference arising in connection with this agreement shall be

submitted to arbitration in accordance with, and subject to, the Rules for the

Conduct of Commercial Arbitrations of the Institute of Arbitrators, Australia.

During such arbitration, a duly qualified legal practitioner may represent both

parties.