1
OPTUS general terms
Capitalised words in a clause of these General Terms have the meaning given in that clause or in the dictionary at the end of these General Terms. These General Terms are interpreted according to the rules of interpretation in the dictionary.
1AGREEMENT TO SUPPLY THE SERVICE
1.1Optus will supply the Service on the terms and conditions of the standard form of agreement for the Service which comprises:
(a)the Standard Pricing Table;
(b)the Service Description; and
(c)these General Terms.
If any of the terms of those documents is inconsistent with any other of those terms, then the documents and their terms will prevail in the order set out above, except that clauses 16 (Your Rights Against Optus) and 17 (End Users etc) always prevail over all other terms in any of those documents.
1.2You may request Optus to supply the Service to you in a manner accepted by Optus from time to time which may include using the relevant Optus approved standard application form from time to time (“Application”). Your Application specifies the Service you have selected and may specify options and parameters you have selected for that Service.
1.3If you acquire more than one service from Optus, then each service will be provided under the terms and conditions of the standard form of agreement for that service.
2YOUR USE OF THE SERVICE
2.1Optus must supply the Service from the Service Start Date.
2.2You must reasonably co-operate with Optus to allow Optus to establish and supply the Service to you safely and efficiently. This includes following Optus’ reasonable requests to provide:
(a)any necessary forecasts to Optus, on which Optus will rely in establishing and supplying the Service to you; and
(b)Optus’ Personnel with safe and prompt access to the Premises and your Personnel, equipment, data and information.
2.3In using the Service, you must comply with all laws, all directions by a Regulator and reasonable directions by Optus.
2.4You must not use, or attempt to use, the Service:
(a)to break any law or to infringe another person’s rights;
(b)to expose Optus to liability;
(c)in any way which damages, interferes with or Interrupts the Service, or any telecommunications network, equipment, or facilities, or cabling controlled by Optus (“Optus Network”) or a Supplier (“Supplier Network”) to supply the Service, as those things are configured at the time;
(d)in excess of any forecast provided to Optus under clause 2.2(a), except where you are expressly permitted to do so in the Service Description; or
(e)in any way which may damage any property or injure or kill any person.
2.5You:
(a)must not use, or attempt to use, the Service to transmit, publish or communicate material which is defamatory, offensive, abusive, indecent, menacing or unwanted; and
(b)acknowledge that, where the Service is a Carriage Service, Optus may be required to intercept communications over the Service and may also monitor your usage of the Service and communications sent over it.
2.6Optus may ask you to stop doing something which Optus reasonably believes is contrary to clauses 2.4 or 2.5. You must immediately comply with any such request. If you do not, then Optus may take any steps reasonably necessary to ensure compliance with clauses 2.4 or 2.5 or the request.
2.7To the extent permitted by law, you acknowledge that Optus makes no warranty in relation to the performance or characteristics of any software supplied in connection with the Service.
3EQUIPMENT
3.1Optus or its Personnel may provide or lease to you, in connection with the Service, equipment or cabling which it, or they, own or lease (“Optus Owned Equipment”).
3.2Title in the Optus Owned Equipment is not transferred to you. You hold the Optus Owned Equipment as bailee for Optus or the relevant member of its Personnel. Risk in any Optus Owned Equipment passes to you on delivery. You are responsible for any damage to, or destruction or theft of, the Optus Owned Equipment, except to the extent it is caused by Optus. You must keep the Optus Owned Equipment free from any charge, lien, mortgage or encumbrance.
3.3Unless otherwise agreed, you must:
(a)allow Optus' Personnel, and only Optus' Personnel, to service, modify, repair or replace the Optus Owned Equipment; and
(b)do all things reasonably required by Optus to make clear the identity of the owner of the Optus Owned Equipment.
3.4You may purchase equipment from Optus or any of its Personnel for use in connection with the Service. Title to that equipment passes to you when you pay for it in full in cleared funds. Risk in that equipment passes to you on delivery. Optus will use reasonable efforts to transfer to you any manufacturer's warranty in any such equipment, from the time title passes to you.
3.5You must ensure that all equipment you use in connection with the Service, and the way you use that equipment, complies with all laws, as well as directions by a Regulator and reasonable directions by Optus. If you do not do so, Optus may disconnect that equipment from the Service. Optus will try to give you reasonable notice before disconnection, but may do so immediately in an emergency.
3.6You must provide adequate and suitable space, power supply and environment for all equipment used in connection with the Service and located on the Premises.
4MAINTENANCE
4.1Optus may conduct maintenance on the Optus Network. Optus will try to conduct scheduled maintenance outside normal business hours (Sydney time) but may not always be able to do so.
4.2Except to the extent the Service Description expressly provides otherwise, Optus is not responsible for rectifying any fault in the Service where the fault arises in or is caused by a Supplier Network, your equipment or other equipment or facilities beyond the boundary of the Optus Network (as defined in the Telecommunications Act).
5SERVICE CHARGES
5.1You must pay the charges for the Service set out in the Standard Pricing Table (or the terms of an applicable Special under clauses 5.3 and 5.4) and any additional charges set out in the Application and in accordance with any applicable provisions of the Service Description. Charges for the Service accrue from no later than the Service Start Date.
5.2Optus may charge you an additional amount:
(a)to service, modify, repair or replace the Service or any equipment, as a result of an Excluded Event; and
(b)for installation, if the information you provided to Optus to determine the installation required was incomplete or inaccurate; and
(c)for installation, maintenance or other services which you request Optus to provide outside normal business hours (Sydney time).
5.3From time to time Optus may offer special promotions or offers (“Specials”) in connection with the Service. A Special may apply to or involve more than one service, and it may be notified in a general advertisement or specifically provided to you. A Special may be subject to certain conditions, including where Optus may:
(a)offer to vary the price;
(b)offer to vary the terms of supply (including the Committed Term); or
(c)require you to acquire all relevant services for a minimum period and to pay a fee if you cancel supply prior to the expiry of that minimum period.
5.4You may accept the Special by any means notified by Optus (which may include completing and signing an Application that includes some or all of the terms of the Special). If you validly accept a Special, the terms of that Special will prevail to the extent of any inconsistency over those which would otherwise apply in the Agreement, and will apply for at least the duration of the Special notified by Optus. In all other respects, the terms and conditions of the Agreement continue to apply. After the Special expires, Optus may end the Special pricing and terms.
5.5In calculating charges, Optus need only look at billing information generated or received by Optus or its Suppliers. Optus may round up any charge to the nearest cent.
6INVOICES AND PAYMENT
6.1Unless otherwise agreed, Optus may invoice you:
(a)for any equipment you purchase from Optus or its Personnel, on or after delivery;
(b)for any installation charges, after installation;
(c)for variable charges, in arrears;
(d)for recurring or fixed charges, in advance; and
(e)otherwise, as notified by Optus from time to time.
6.2Optus will notify you of its billing period from time to time. Optus may also issue interim invoices for accrued charges.
6.3Optus may invoice you using a billing agent (which may be another Optus Group Company).
6.4Subject to clause 7 (Billing Disputes), you will pay each amount invoiced in the way and by the due date specified in the invoice or which Optus notifies you from time to time.
6.5Optus will try to include on your invoice all charges for the relevant billing period. This is not always possible; for example, because Optus receives an invoice for your Service from another Supplier, or because of an error or problem with the relevant Optus billing system. Optus may include these unbilled charges in any later invoice(s).
6.6Optus may re-issue any invoice if any error is later discovered. If you have overpaid as a result of a billing error, your account will be credited with the overpayment or, if you have stopped acquiring the Service from Optus, Optus will refund the overpayment promptly after your request and after deduction of any other amounts due by you to Optus or an Optus Group Company.
6.7You must pay all charges incurred in respect of the Service and equipment whether or not the charges and the related use of the Service were authorised by you. This includes charges incurred in connection with your End Users' use of the Service.
6.8If you do not pay any amount invoiced by the due date (except any amount which is validly disputed under clause 7), then Optus may charge you a late fee of 2% per annum above Optus' corporate overdraft rate from time to time calculated on the daily balance of the unpaid amount from the due date until the date of payment in full. This is an independent obligation which applies before and after judgment. You must also pay Optus’ expenses in recovering payment from you.
6.9If you choose to pay by direct debit and your financial institution fails to honour your payment, you must pay the amount owing directly to Optus and an additional administration fee may apply.
6.10Subject to clause 8 (Taxes), you may not withhold, deduct or set-off any amount from or against any payment due by you to Optus in any circumstances. Optus may withhold or deduct from or set-off against any amount which Optusor an Optus Group Company must otherwise pay or credit to you any amount payable by you to Optus or an Optus Group Company.
7BILLING DISPUTES
7.1You may dispute an amount invoiced by Optus but only if you do so in accordance with this clause 7.
7.2Except to the extent you raise a valid billing dispute in respect of an Optus invoice, you agree that the invoice is valid and payable (and you must pay any undisputed amount included in the invoice in accordance with clause 6.4).
7.3To raise a valid billing dispute, you must:
(a)make a good faith request to Optus to investigate the specific charges or invoice, providing at the same time specific evidence which demonstrates that a particular charge or invoice is incorrect; and
(b)make any such request to Optus within 12 months of the date of the relevant invoice.
7.4You may only make a claim or commence proceedings alleging that any charge or invoice is incorrect, or you are entitled to a refund for overpayment, if you do so within 12 months of the date of invoice or overpayment.
7.5If you raise a valid billing dispute, then Optus will conduct investigations which are reasonably necessary and appropriate in the circumstances of the dispute. At the end of these investigations, you will pay any outstanding amount (together with interest on that amount calculated in accordance with clause 6.8 from the original due date for payment) within five Business Days. Optus may invoice you a daily professional services charge to audit and validate any non-Optus analysis of the disputed amount. You will pay any such professional services charge in accordance with clause 6 (Invoices and Payment).
8TAXES
8.1Charges specified in the Agreement do not include any Taxes unless otherwise stated. Unless the relevant charges are stated to include Taxes, you must pay Optus an additional amount equal to the Taxes on the charges, any non-monetary consideration or on the supply or any component of supply made or to be made in connection with the Service or the charges.
8.2In some cases the Agreement may specify a charge followed by another amount in parentheses or as 'without GST' and 'with GST'. In those cases, the specified charge or 'without GST' amount is exclusive of GST and the amount in parentheses or specified as 'with GST' is:
(a)the charge inclusive of GST at the rate in effect at the date of the Agreement; and
(b)included by way of information only, and its inclusion does not limit your obligation under clause 8.1 to pay the GST exclusive charge together with an additional amount equal to the GST at the rate applicable from time to time.
8.3If you are required by law to deduct or withhold Taxes from a payment to Optus, then you may make those deductions or withholdings (or both). However, you must give Optus a receipt for each payment and you will increase your payment to Optus by the amount necessary to ensure Optus receives the full amount which it would have received if no deduction or withholding had been made.
8.4If clause 8.3 applies, then Optus will on request by you apply for any credit or rebate to which it may be entitled in connection with the deduction or withheld Tax. Optus will refund to you any credit or rebate received, up to the amount of the increase made by you under clause 8.3.
8.5Optus will issue you with a valid tax invoice in respect of each taxable supply.
8.6Terms used in this clause 8 which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the meaning given to them in that Act.
9FINANCIAL SECURITY
9.1From time to time Optus may require you to supply financial security (for example a deposit or guarantee) for your obligations under the Agreement. Optus will give you reasonable notice before the requirement takes effect. Optus may from time to time vary the requirement for, including the amount of, this security after the Service Start Date.
9.2Providing financial security does not affect your obligations to Optus, including your obligation to pay amounts to Optus as they become due and payable.
9.3Optus may apply the whole or any part of any financial security to satisfy any amount you are required to pay to Optus from time to time and that is overdue. Doing so does not limit Optus’ other rights under the Agreement.
9.4Optus must return any remaining financial security to you after you have stopped taking the Service from Optus, you have paid Optus all outstanding charges and discharged all your other obligations under the Agreement and Optus is satisfied that it will not be obliged to repay any amount received by it for any reason.
10PRIVACY AND PERSONAL INFORMATION
10.1We collect personal information directly from you, and also during our ongoing relationship with you. We use it to supply products, give you the best possible service, and for the other purposes described in our privacy policy. Without it, we may not be able to supply products or provide the level of service you expect.
10.2As explained in our privacy policy, we share personal information within the Optus Group companies and with a number of other service providers and partners for these purposes, some of whom may be overseas. Their locations are listed in our privacy policy. If you’d like more info about our privacy practices, how to access or correct our records, opt out of receiving marketing materials, or make a complaint, just head over to optus.com.au/privacy.
11MODIFICATIONS
11.1You may request a modification (which does not include suspension or cancellation) to the Service or an Individual Service at any time by giving 30 days' notice to Optus. Optus may agree, in its absolute discretion, to make that modification.
11.2If Optus makes the modification then:
(a)Optus may notify you of the revised charges for the Service; and
(b)if the modification is a Downgrade, you must pay a Downgrade Charge if one is specified in the Service Description; and
(c)if the modification is not a Downgrade, you must pay the charges for making the modification notified to you by Optus at the time.
11.3You acknowledge that:
(a)a Downgrade Charge is payable each and every time you Downgrade the Service or an Individual Service; and
(b)if you Downgrade the Service or an Individual Service in accordance with paragraph 11.1:
(i)Optus will suffer loss in connection with the cost of network components no longer required to supply the Service or Individual Service after the Downgrade; and