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General Terms
Optus Business General Terms 26 March 2015
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1The application process.
1.1When you complete an Application, you’re asking Optus (we/us/our) to supply you with a Service.
1.2We’ll have a look at your Application, and consider your eligibility. This is likely to include any Financial Security we need you to provide, and whether the Service will be available to you.
1.3Once we’ve approved your Application, a separate Agreement that includes the General Terms is created for each Service that you have selected in the Application.
2About your service.
2.1Optus will supply the Service to you from the Service Start Date on the terms and conditions of the Agreement.
2.2By this Agreement you commit to assisting Optus and any Subcontractors to set up, supply and continue the Service to you safely and efficiently. This can include, but isn't limited to, providing us with usage forecasts, and ensuring safe and legal access to Personnel, Premises, equipment, data and information.
2.3You confirm that you’re not a Carrier or Carriage Service Provider (as those terms are defined in the Telecommunications Act).
2.4We both agree to comply with any laws or direction byRegulators relating to the Service.
2.5You won’t, and won’t allow anyone else (including but not limited tothe End Users) to use or attempt to use the Service:
(a)other than for the purpose we’ve specified (if any);
(b)to break laws, infringe upon anyone else's rights, or harm property or people;
(c)in a way that damages, interferes with or interrupts the Service, the Optus Network or, a Supplier Network;
(d)to re-supply or re-distribute the Service (or any part of it) without our prior express written agreement; or
(e)in a way that does not comply with our Fair Go and Acceptable Use Policies.
2.6The Service may use one or more identifiers such as a telephone number, IP address or domain name ("Public Addressing Identifiers").
2.7You acknowledge:
(a)that we don’t control the allocation of Public Addressing Identifiers;
(b)we’re not liable to you if we’re required to change your Public Addressing Identifier as a result of a direction given by a Regulator or any other body administering Public Addressing Identifiers; and
(c)if we’re not supplying the Service to you, your right to use any related Public Addressing Identifier may cease.
3Equipment and maintenance.
3.1Any time you receive equipment from Optus, it continues to be our property unless we agree to sell it to you. While our equipment is in your care or on your property, you’re responsible for any theft or damage. The equipment needs to be used and maintained correctly and by the instructions we give. This includes making sure it has suitable space and power.You also agree to keep our equipment free from charge, mortgage, lien or encumbrance – and make it clear to third parties that it belongs to us.
3.2You agree to make sure all other equipment you use in connection with the Service is fully compatible. This includes making sure it has suitable space and power, and complies with law, regulations, and with our requirements. Unless we agree it with you specifically, we don’t take any responsibility for your equipment.
3.3In addition to any maintenance window specified in the Service Description, we might need to modify or conduct maintenance on the Optus Network in areas relating to the Service. We’ll always aim to do this outside of Business Hours
4Third Party Products and Services.
4.1When we on-supply to you third party Products under this Agreement, you accept the risk in the Product when it’s delivered to you, and the ownership will pass to you on full payment.
4.2When we on-supply to you third party software as part of this Service, the relevant third party licence, warranty terms and conditions apply to that software.
4.3When we’re not the manufacturer of the Products provided as part of these Services, as far as the law allows we don’t offer any warranties for these Products. The only warranties available to you are the standard third party manufacturer warranties. When we on supply to you third party standard product maintenance services as part of this Service, the relevant third party maintenance terms and conditions of supply apply to the provision of those Services
4.4You acknowledge that some third party products are subject to territorial restrictions on distribution, and certain Products (and related technology and documentation) are subject to U.S., Australian and other local and international laws and regulations controlling their export, import and use. You agree that neither you or any other person at your direction will:
(a)resell the Products to any third party;
(b)export, transfer or re-export the Products from Australia: or
(c)use, or allow the use of the Products in connection with nuclear, biological or chemical weapons or missile systems or the development of any weapons of mass destruction.
5Moves, Adds & Changes.
5.1Please give us written notice if you’d like any changes made to your Service.
5.2If we agree to make the changes, we’ll notify you of any revised or additional charges (for example, a Downgrade Charge) and any extra or changed terms that may apply.
5.3Once any modifications are complete, you’ll be responsible for adhering to any revised terms or payment, including additional charges.
6Charges, Invoicing and Payments relating to your Service.
6.1By signing the Application, you’re agreeing to pay all charges that are set out in the Standard Pricing Table. Please be aware that these can be subject to changes set out in the Application, Service Description, or applicable Special. You agree that you’ll pay us for the Service, regardless of who uses it and whether you approved that usage.
6.2On expiry of the Committed Term or Special, we may end the pricing set out in the Application or Special on 30 days written notice, in which case the charges set out in the Standard Pricing Table will apply. If you renew your Service for a new Committed Term the agreed charges will be implemented within 30days after you sign your renewal Application.
6.3Optus Group Companies may deduct from payments or credits to Your Group, any amounts that Your Group owes to any Optus Group Company.
6.4When it comes to paying for your Service, you agree:
(a)that you’ll pay the amount you owe us; and
(b)you won’t withhold, deduct, set-off or counterclaim any amount from or against any payment due to us.
6.5You may incur extra charges in line with the Standard Pricing Table, for:
(a)suspending your Service or modifying, repairing, or replacing any Optus Equipment as a result of an Excluded Event;
(b)installation, in the event that any information you gave us about requirements for installation were incomplete or inaccurate, or if you need extra installation services;
(c)investigating and (if requested) correcting a fault, where we decide that the fault is caused by your equipment or facilities; or
(d)requiring us to perform maintenance or other services outside Business Hours.
6.6Unless there is something clearly incorrect on your invoice, our records are sufficient proof of the amount payable, unless these are proven wrong. Please note that we may round up a charge to the next cent.
6.7We (including our agent or another Optus Group Company) will send you tax invoices for your Service. You agree to pay the amount within 30 days from the date of invoice, and by the methods specified in it.If you pay too much in error, we’ll credit your account, or refund you the amount that was overpaid. We may deduct money you or your Related Bodies Corporate owe us or another Optus Group Company from any overpaid amount before we refund the remainder.
6.8If we don’t receive your payment in time, we may:
(a)charge you interest at the Late Payment Rate, and our reasonable costs of recovering payment from you; and
(b)stop using the agreed rates in your Application, and revert to the rates in the relevant Standard Pricing Table, until your full payment is made.
6.9If there are any charges you don’t agree with, you can only make a claim or commence proceedings in relation to those charges if you tell us in writing within 12 months of the date of the invoice. When you write to us, you’ll need to clearly set out your claim with proof. We’ll get back to you within 60 days.
7Taxes.
7.1When you pay the charges on your Service, you’ll also pay us an additional amount that’s equal to the Tax on the charges or Services, unless the Agreement has stated that taxes are included.
7.2If charges include Tax and those Taxes change, we may increase or decrease the charges that you are required to pay accordingly.
7.3If you’re required to deduct or withhold Tax from a payment to us by law, you need to:
(a)promptly pay an amount equal to the amount deducted or withheld as required by law and by the date that Tax is due to be paid to the appropriate governmental or regulatory agency; and
(b)increase your payment to us by the amount that’s necessary to ensure we receive the full amount which we would have received if no deduction or withholding had been made.
7.4If clause 7.3 applies, Optus will on request, and subject to you providing Optus with a receipt for the amount withheld by you, apply for a 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 increased payment made by you under clause 7.3.
8Financial Security.
8.1We may need you to supply us with Financial Security at any time you appear to be a Credit Risk. If you don't supply what we ask for,we can refuse to provide the Service, or we can choose to Suspend, or even cancel your Service and terminate the Agreement. We may apply all or part of the Financial Security to satisfy any amount overdue by you to an Optus Group Company. If that’s not the case and the supply of Services to you has been cancelled, we’ll return the full or relevant part of the Financial Security.
9Your rights to suspend or cancel your service.
9.1There are 3 ways you can cancel your Service and terminate your Agreement with us:
(a)by giving us 30 days written notice after the Committed Term;
(b)during the Committed Term if we’ve failed to fix our breach of an essential term of this Agreement, as long as you’ve given us 30 days written notice requiring us to do so; or
(c)during the Committed Term if the Application or Service Description includes a Cancellation Fee, as long as you give us 30 days’ written notice and pay the Cancellation Fee.
9.2You can immediately cancel your Service and terminate your Agreement by giving us written notice if:
(a)your Service has ceased to be provided because we have suffered an Insolvency Event; or
(b)you’re required to do so by law or to comply with an order, instruction or request from a Regulator,emergency services organisation or any other competent authority.
9.3You can Suspend your Service:
(a)when any of the events occur that are referred to in clause 9.2; or
(b)at your convenience in writing during the Committed Term. We’ll aim to do this as quickly as possible. Just note that if you want us to stop the Suspension and restart the Service, a reactivation charge may apply.
9.4You’ll be liable to pay:
(a)all charges (except for usage based charges) covered by this Agreement if your Service is suspended, for the period of the Suspension;
(b)our reasonable infrastructure and installation costs if:
(i) we have to cancel your Service under clause 10.1(b); or
(ii)If you cancel your Service or an Individual Service prior to the Service Start Date;
(c)The Cancellation Fee, when your Service is cancelled during the Committed Term;
(i)by you under clause 9.1(c) in exercising your option to terminate for convenience;
(ii)by you under clause 9.2(b);
(iii)by us under clauses 10.2 (a)-(e).
10Our rights to suspend or cancel your service.
10.1We’re able to cancel your Service and terminate this Agreement:
(a)by giving you 30 days written notice after the Committed Term; or
(b)by giving you 30 days written notice, if before your Service’s Start Date we reasonably determine that it’s not technically or operationally feasible or commercially viable to supply you with our Service;
10.2We’re also able to cancel your Service and terminate this Agreement immediately by giving you written notice if:
(a)if you’ve failed to remedy a breach of the Agreement and we’ve previously given you 30 days written notice asking you to do so;.
(b)you breach any part of clause 2 ( About your Service), 3.1 (Equipment and Maintenance), or 8(Financial Security) each of which are essential terms of this Agreement;
(c)you don’t pay us according to clause 6.7 (Payment) which is anessential term of this Agreement;
(d)you suffer an Insolvency Event;
(e)the common law gives us the right to terminate this Agreement;
(f)we’re required to by law, or to comply with an order, instruction or the request of a Regulator, emergency services organisation or any other competent authority; or
(g)your Service is Suspended by us under clause 10.3 (a) - (c), and that Suspension continues for more than 14 days.
10.3We can immediately Suspend or Downgrade your Service if:
(a)there’s a Force Majeure Event;
(b)it’s necessary for us to repair or maintain our Network or a Supplier’s Network;
(c)we’re unable to supply your Service because our Supplier Network service is unavailable, or becomes unavailable;
(d)any of the events referred to in clause 10.2 occur, as an alternative to cancelling your Service, at our discretion.
10.4If your Service has been Suspended or Downgraded under clause 10.3 and we’ve decided not to immediately cancel your Service, when the reason for your Suspension has been resolved we will promptly recommence your Service.
11Your rights and obligations after cancellation.
11.1If it’s applicable, when you cancel an Individual Service we’ll notify you of the revised charges for your remaining Services.
11.2If your Service is cancelled for any reason:
(a)you (and your Personnel and any End User) must stop using this Service;
(b)you must immediately and at your cost return or allow us to remove any Optus Equipment or other Optus material that’s on your Premises or that you’ve got in your possession or control ;
(c)but remains active and continues to be used, you must continue to pay the charges;
(d)each party’s accrued rights and obligations will be unaffected, unless our Agreement clearly states otherwise.
12Your rights, Our rights
12.1We’re only liable to you to the extent provided in this clause. We’re not liable to you for Consequential Loss in connection with the Services or the Agreement.
12.2We exclude all conditions and warranties implied into this Agreement. If the law implies terms into this Agreement and we breach them, then we’re liable toyou. In those circumstances we’re only liable for repairing or replacing the relevant goods, resupplying the relevant or equivalent services, or paying you the cost of doing so, and only as long as the goods or services are of a kind not ordinarily acquired for personal, domestic or household use or consumption.
12.3We’ll be liable for your Loss (but excluding any Consequential Loss) where it arises from:
(a)the acts or omissions of our Subcontractors; or
(b)damage to your Property; or
(c)personal injury or death to you or your Personnel,
but only to the extent that it’s caused or contributed to by our negligent act or omission or the negligent act or omission of our Subcontractors, in connection with the Agreement.
12.4We don’t guarantee a continuous or fault-free Service. We are not liable to you for Interruptions to the Service caused by a Force Majeure Event or an Excluded Event or service specific exclusions set out in the relevant Service Description. If we’re liable for an Interruption and you validly claim it in accordance with the Agreement you will be entitled to the rebate amount, if any,specified in the Service Description. This is your sole remedy against us and is in substitution of your common law rights for the relevant Interruption.
12.5Our liability for your Loss is reduced to the extent that your acts or omissions, or your equipment (or the acts, omissions or equipment of a third person, including a provider of a Supplier Network) cause or contribute to that Loss.
12.6To the extent thatwe’re liable to you in connection withthis Agreement and/or any other agreement we have with you, in any given 5 year period our liability to you, whether in contract, tort (including negligence), statute, under an indemnity or otherwise, is limited to the lesser of the following:
(a)an amount that is equal to 12 months charges paid by you to Optus for the period before the event leading to the claim; or
(b)$5 Million in aggregate (ie relating to this Agreement and/or any other agreement we have with you). If we have paid you as a result of a previous claim in any given 5 year period, this $5 Million maximum aggregate liability will be reduced for subsequent claims by the amount we have already paid you. As an example, if we have paid you $2 Million in a given 5 year period, and you make another claim during that same 5 year period, whether under this Agreement or another agreement we have with you, our maximum aggregate liability to you under this Agreement will be adjusted to $3 Million.
12.7We’re not liable to End Users for any Content that’s obtained using our Service.
12.8You indemnify us against all Loss suffered or incurred by us in connection with;
(a)a claim by an End User arising out of or in connection with the use or attempted use of the Service; or
(b)the use, access or transmission of any Content using the Service.
13Intellectual Property.
13.1Intellectual Property Rights in:
(a)Your Material will be owned by you;
(b)Products (including third party licensed software)will be owned by the manufacturer or developer;
(c)all other materials, information, know how, systems, processes, software (including enhancements or modifications) and technology of any nature that’s created or used in connection with this Agreement (“Contract Material”) and isn’t covered by 13.1(a) or (b) will be owned by us.
13.2Where we need to use the Intellectual Property Rights in Your Material for the purpose of supplying the Services to you, you agree for the term of this Agreement to grant us a royalty free, non-exclusive, non-transferable licence in the country in which the Services are supplied.