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BYTESITE ADSL TERMS & CONDITIONS
This document sets out the terms of an agreement for the provision of ADSL
services by ByteSite to the customer who places an order for the
Service.
DEFINITIONS
Acceptable Use Policy means the conditions of use applicable to the service
as published by ByteSite from time to time.
Access Period means a renewable period of one calendar month, starting
from the Activation Date.
Activation Date means the date that the Service is available for use by you,
provided that we have given you advance notice of this date.
ADSL Hardware means hardware, including ADSL modems and line filtering
equipment, which you order from ByteSite when you place an order
for the Service.
Charges means the charges payable by you to ByteSite pursuant to
this agreement, as set out to you at the time you place an order for the
Service.
Internet means the worldwide connection of computer networks providing for
the transmittal of data by methods including electronic mail, the World Wide
Web and other data transmission protocols.
Phone Connection means a standard telephone service purchased by you in your
name from Telstra or a reseller of Telstra and connected to the Telstra
public telecommunications network.
Service means permanent ADSL connection access to ByteSite's
connection to the Internet, the provision of a back-up dial up connection
for those times when an ADSL connection is unavailable, the provision of
email facilities and space on our World Wide Web server as set out in the
description of the plan that you order.
World Wide Web means a method of representing and obtaining graphical and
other data and linking data items used by Internet users.
You means the customer who enters into this agreement (the customer must
also be the account-holder of the standard telephone service which is to be
connected to the Service).
TERM AND ACCESS PERIOD
This Agreement starts on the date when you place an order for the Service
using the ByteSite on-line, telephone or postal application
sign-up process.
ByteSite will start providing the Service to you from the
Activation Date for the duration of the chosen contract connection period
and thereafter on a monthly basis.
This agreement will automatically be renewed for subsequent periods of one
month, starting from the monthly anniversary of the Activation Date,
unless:
You give us at least 14 days notice before the end of the current Access
Period that you wish to discontinue the service. If you give us less than 14
days notice, we may postpone the date of termination by one calendar month;
or
We notify you in advance that we wish to discontinue providing the Service
to you. We may do this if:
we consider that you have breached these terms and conditions or the
Acceptable Use Policy;
you disconnect your Phone Connection (including by changing service
providers or moving premises); or
we are no longer able to supply the Service to you because our arrangements
with our suppliers have ended and we have been unable to source alternative
arrangements.
ByteSite may adjust the Charges at the beginning of a new monthly
period, provided that ByteSite gives you at least 30 days advance
notice of any increase.
PROVISION OF SERVICE
ByteSite, in accordance with the terms and conditions of this
agreement, will provide the customer with the service by such means as
ByteSite determines.
ByteSite will provide the service on a continuous basis during the
term of this agreement. ByteSite will inform the customer if the
service is unavailable for access by the customer due to maintenance or any
other foreseeable factor.
ByteSite will provide you with all identification and log-in
information required for connection to the Service.
Changes to the connection speed and account type for the Service can be made
upon request. The changes will take effect as soon as practical and the
account fees adjusted on a pro rata basis for the difference in the new
Access Period. In addition to any changes in monthly fees, ByteSite
will charge the applicable change fee to your credit card at the time you
request the change.
CUSTOMER OBLIGATIONS
You must provide your own access facilities, including the Phone
Connection.
You are responsible for maintaining the secrecy and confidentiality of all
identification and log-in information required by the customer to access the
service.
You agree not to disclose to any other person, corporation, entity or
organisation any identification or log-in information, whether in use or
not, nor any other confidential information relating to the service or
ByteSite.
You are liable for all fees resulting from use of the service accessed
through your identification or log-in information, whether authorised by you
or not.
USE OF THE SERVICE
You must comply with all reasonable directions by ByteSite
regarding the access and use of the Service throughout the Access Period,
you must comply with the Acceptable Use Policy and General Terms &
Conditions.
You warrant that in accessing and using the Service you will only use
software that you are legally entitled to use.
You acknowledge that ByteSite does not and cannot in any way
supervise, edit or control the content and form of any information or data
accessed through the Service and ByteSite will not be held
responsible in any way for any content or information accessed via the
Service (except where ByteSite actually provides such content or
information).
ByteSite disclaims all or any liability for any material on the
Internet that you may find offensive, upsetting, defamatory or personally
offensive.
You must not access, nor permit any other party to access, the Service for
any purpose or activity of an illegal or fraudulent nature.
You will not reproduce, distribute, transmit, publish, copy, transfer or
commercially exploit any information accessed through or received from the
Service that would infringe the intellectual property right of any
person.
You are responsible for preparing and maintaining sufficient back-up files
and data storage capacity for all your data including electronic
messages.
ByteSite has no responsibility to provide training in the use
of the service pursuant to this agreement.
CHARGES
You must pay the charges at the rate and in the manner specified in the plan
description for the plan you ordered. Payment for any set-up fee, the
provision of the Service in the first Access Period and for any ADSL
Hardware you order must be made at the time you order the Service. If we
later determine that we are unable to provide the Service to you, we will
refund Charges as follows:
- Charges for any set-up fee and provision of the Service during the Access
Period will be refunded immediately;
- Charges for any ADSL Hardware will be refunded to you when we receive the
ADSL Hardware from you, provided that such hardware is undamaged, in its
original packaging and in saleable condition.
ByteSite will automatically charge your credit card for Charges in
subsequent months, 3 days before the payment is due. It is your
responsibility to ensure that:
- you have provided correct credit card details to us; and
- there are sufficient funds on your credit card at the time when payments
are deducted.
If a credit card transaction is declined for any reason (other than a
failure in our or our financial institution's payment processing systems),
we will suspend your account at the end of the current Access Period. As
well as suspending your account, we may terminate this Agreement if Charges
remain outstanding beyond the end of any Access Period for which you have
paid. We will make reasonable efforts to contact you to inform you that a
credit card transaction has been declined.
Until we terminate this Agreement, we may continue trying to debit your
credit card even though a previous attempt was declined. We may also impose
a reasonable processing fee for declined credit card transactions, provided
we have given you prior notice of this fee.
If you make payment of a Charge while your access to the Service is
suspended, we will enable your access to the Services as soon as possible.
We are not liable to refund any Charges for the period of any
suspension.
Except as required by relevant legislation, or as set out in this clause, no
Charges will be refunded to you if you request disconnection of the Service
after the Activation Date.
CANCELLATION FEES
Once the application has been accepted, refunds are not available on the
activation fee and in addition the applicable contract cancellation fee will
apply.
CONTINUOUS SERVICE
ByteSite will use reasonable commercial endeavours to provide the
Service continuously. However, ByteSite makes no guarantees that
access will be available at all times and, to the extent permitted by law,
will not be liable for any losses whatsoever that may be incurred as a
result of the unavailability of the Service. You acknowledge there may be a
reduction in availability during periods of maintenance and enhancement of
the Service.
EXISTING PHONE CONNECTION
You agree and acknowledge as follows:
- The Service can only be provided to you if the cable that runs between your
premises and the nearest exchange is owned by Telstra. This means that you
must purchase a standard telephone service from Telstra or a reseller of
Telstra in order to receive the Service.
- If you do not currently purchase your standard phone service from Telstra or
a Telstra reseller, then ByteSite is unable to provide the Service
to you at this time.
- If, after you start receiving the Service, your standard phone service
becomes disconnected, you move premises, or you transfer your phone services
to someone other than Telstra or a Telstra reseller, this may mean that you
will be unable to receive the Service. ByteSite is not obliged to
refund any of the fees you have paid in these circumstances.
- If you move premises, this will be treated by ByteSite as a
disconnection. You may then apply for a new connection at your new
premises.
Some services offered by your telecommunications service provider or
another person may not be compatible with the Service.
The installation of the service on your Phone Connection may interfere with
other services you receive, such as back-to-base security monitoring
services. It may be necessary to install additional equipment, such as a
central line splitter, filters and network termination devices, to ensure
that these services continue to operate when an ADSL service has been
installed.
You must inform any provider of monitoring services that installation of the
ADSL service may cause temporary interruption of monitoring services and
that installation of additional equipment may be required.
INDEMNITY
You release and indemnify ByteSite, its servants and agents
against all actions, claims and demands which may be instituted against
ByteSite arising out of a breach of this agreement by you or
arising out of an act or omission by any other person for whose acts or
omissions you are vicariously liable.
IMPLIED TERMS
Any condition or warranty which would otherwise be implied in this agreement
is hereby excluded.
Where legislation (such as the Trade Practice Act 1974 and state fair
trading legislation) implies in this agreement any condition or warranty,
and that legislation avoids or prohibits provisions in a contract excluding
or modifying the application of or exercise of or liability under such
condition or warranty, the condition or warranty will be deemed to be
included in this agreement. However, to the extent permitted by such
legislation, the liability of ByteSite for any breach of such
condition or warranty shall be limited, at the option of ByteSite,
to one or more of the following:
- if the breach relates to goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of such goods;
- the payment of the cost of replacing the goods or of acquiring equivalent
goods; or
- the payment of the cost of having the goods repaired; and
- if the breach relates to services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
LIABILITY OF BYTESITE
Except in relation to liability for personal injury (including sickness and
death), the aggregate liability of ByteSite to the customer in
connection with this agreement (whether in contract, tort including
negligence, under statute or otherwise) in respect of any loss or damage
(including consequential loss or damage) is limited to the Charges received
by ByteSite in the Access Period during which the liability
arises.
TERMINATION
In addition to the rights of the parties not to renew this agreement in
accordance with the paragraph "Term and Access Period", ByteSite
may terminate this agreement immediately if:
- you breach any of your obligations and the breach continues for more than 5
days after we have given you notice of the breach;
- (if you are an individual), you become bankrupt or insolvent;
- (if you are a company), you become insolvent, or an administrator, receiver
or liquidator is appointed;
EVENTS BEYOND BYTESITE'S CONTROL
To the extent permitted by law, ByteSite will not be liable for
any defect in the provision of the Service which is caused by a reason
beyond the reasonable control of ByteSite. In particular (but
without limitation) you acknowledge that :
- continuity and connection speed of your Internet access depends on a wide
range of factors, many of which are beyond the control of ByteSite;
- ByteSite has no control over the accuracy or appropriateness of
any information on the Internet;
- ByteSite is not responsible for any software available on the
Internet;
- Your Internet access may be interrupted or slowed by a variety of factors,
including, but not limited to, equipment failure, the need for routine
maintenance, and peak demand.
- Connection speeds at the maximum theoretical speed of your equipment and the
Service plan you purchase may not be achievable in practice.
IP ADDRESSES
Any IP Address allotted to you by ByteSite, whether as a static
address or dynamically allocated:
- remains the sole property of ByteSite;
- may be changed or revoked by ByteSite at its discretion at any
time; and
- is not transferable.
CONSUMER PROTECTION
Pursuant to Australian state and federal consumer protection legislation,
you may have additional rights beyond those set out in these Terms and
Conditions. Also, such legislation may imply additional terms or warranties
in these Terms and Conditions which cannot be varied. Nothing in these Terms
and Conditions is intended to be inconsistent with, or vary, such rights,
terms or warranties.
NOTICES
ByteSite relies on email as its primary means of communication.
ByteSite will send notices to you by email as follows:
- If you are a current customer of ByteSite and your account is not
suspended, the email will be sent to your primary ByteSite user
address;
- If you are not a current customer of ByteSite but you provide ByteSite with an email address,
ByteSite will send
notices to that address;
- If you do not have an email address (or your ByteSite address is
suspended), ByteSite will make reasonable efforts to contact you
by phone or mail.
If ByteSite sends a notice to you by email, it is deemed to be
received by you at the time that the communication leaves ByteSite's
email servers or arrives in your ByteSite mail box,
unless ByteSite receives an automatic notification of non-delivery
within 24 hours.
You may send notices to ByteSite:
By email to accounts@bytesite.com.au.
By mail to GPO Box 3078, BRISBANE QLD 4001
By fax to 1300 732 702.
For some types of notices (such as changes in credit card details and
contact details), ByteSite may make on-line forms available to you
from your Account Management web page.
LAW
The laws of Queensland, Australia govern this Agreement and the parties
submit to the non-exclusive jurisdiction of the laws of that state.
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