"Acceptable Use Policy" means the conditions of use applicable to the Service as published by Velocity from time to time (the Acceptable Use Policy can be found on Velocity's home page on the World Wide Web).
"Access Period" means:
for plans which have monthly fees, a renewable period of 1 month;
for plans which are "blockhour accounts" (as specified in the Membership Form):
A renewable period of the maximum life of the hours specified in the Membership Form or, if the Customer uses the hours before the expiration of that period, the actual time it takes for the Customer to use the hours.
"Charges" means the charges payable by the Customer to Velocity pursuant to this Agreement.
"Commencement Date" means the date on which Velocity approves the Customer's Membership Form, or the first date the Customer uses the Service, whichever is earlier.
"Customer" means the person named as the customer in the Membership Form or, if the person so named is under the age of 18 years, the person who signs as guardian.
"Velocity" means ByteCard Pty Ltd (Trading as Velocity Internet) ACN 052 315 812.
"Internet" means the worldwide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol.
"Membership Form" means the form used to apply for the Service - this includes any electronic forms completed over the Internet.
"POP" means a Point of Presence, that is, a site from which a Customer may connect to the Service (usually by dialing a particular telephone number linked to that site);
"Renewal Date" means the recurring date on which the Customer is liable to pay the Charges for the Services. This date will occur each month, quarter, year or other period as agreed (the relevant period will be agreed when the Customer commences the Services), commencing on the Commencement Date.
"Service" means access to Velocity's connection to the Internet, the provision of World Wide Web data and the incidental storage of data.
"World Wide Web" means a method of representing and obtaining graphical data and linking data items used by Internet users.
- Access Period
2.1 The Service shall be provided by Velocity to the Customer from the Commencement Date for the Access Period.
2.2 This agreement may be renewed for subsequent periods, subject to approval by Velocity.
2.3 Renewal of this agreement for a subsequent period may involve an adjustment to the Charges as a condition of Velocity providing its consent to renewal.
- Provision of Service
3.1 Velocity, in accordance with the terms and conditions of this agreement, shall provide the Customer with the Service by such means as Velocity determines.
3.2 Velocity will endeavour to provide the Service on a continuous and uninterrupted basis. However, the parties acknowledge that access to the Service may be limited or not possible due to system failure beyond the control of Velocity, or due to system maintenance.
3.3 Velocity does not warrant the continuous and uninterrupted supply of the Service and is not liable for any loss or damage suffered by the Customer due to the unavailability of the Service.
3.4 Velocity shall provide the Customer with all identification and log-in information required for connection to the Service.
- Customer obligations
4.1 The Customer must provide its own access facilities including software and hardware.
4.2 The Customer is responsible for maintaining the secrecy and confidentiality of all identification and log-in information required by the Customer to access the Service.
4.3 The Customer agrees 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 Velocity.
4.4 The Customer is liable for all fees resulting from use of the Service accessed through the Customer's identification or log-in information, whether authorised by the Customer or not.
4.5 The Customer agrees to provide to Velocity accurate and truthful information in its Membership Form, and at all future times when Velocity requests information from the Customer.
4.6 The Customer acknowledges that they are responsible for all carrier charges (ie: telephone calls) associated with connecting to the Service. This includes ensuring the Customer is connecting to the most appropriate POP. The Customer agrees that Velocity will never be responsible for any loss or damage the Customer may experience as a result of accessing an incorrect POP.
- Use of the Service
5.1 The Customer shall comply with all reasonable directions by Velocity regarding the access and use of the Service and shall comply with the Acceptable Use Policy and all other Policies.
5.2 The Customer warrants that in accessing and using the Service it will only use software that it is legally entitled to use.
5.3 The Customer acknowledges that Velocity 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 Velocity shall not be held responsible in any way for any content or information accessed via the Service.
5.4 Velocity disclaims all or any liability for any material on the Internet that the Customer finds offensive, upsetting, defamatory or offensive, or which is illegal.
5.5 The Customer shall refrain from disruptive activities which may include, but are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and viruses, use of the Service to gain unauthorised access to any other computer system, the sending of harassing, obscene, offensive or threatening electronic mail, forgery of electronic mail and the placement or transmission or storage of any illegal or defamatory material on the Internet.
5.6 The Customer will not access the Service for any purpose or activity of an illegal or fraudulent nature.
5.7 The Customer will not use any information accessed through or received from the Service that would infringe the intellectual property right of any person.
5.8 The Customer is responsible for preparing and maintaining sufficient back-up files and data storage capacity for all Customer data including electronic messages.
5.9 Velocity has no responsibility to provide training in the use of the Service pursuant to this agreement. Training may be provided or procured for an additional fee.
5.10 The Customer will not allow any other person to use the Service in a way which would breach this Agreement.
6.1 The Customer shall pay the Charges specified in the Membership Form. Payment must be made in advance of connection or where relevant, renewal of the Access Period.
6.2 If, in the reasonable opinion of Velocity, the Customer has not paid the Charges in a diligent and timely fashion, Velocity may require the Customer to pay a security deposit equivalent to 3 months Charges as a condition of renewing or continuing to provide the Service.
6.3 Velocity may use the security deposit to meet any charges incurred by the Customer.
6.4 Velocity must return the security deposit to the Customer, without interest when:
a) the Customer has met all the Charges; and
b) the Customer advises Velocity that it does not wish to renew the Service.
6.5 If the Customer fails to pay a charge within 3 days of the due date, Velocity may suspend the Service until payment is made. The Customer remains liable for all Charges due during the period of suspension.
6.6 The Customer is responsible for any collection fees (including legal fees and any other costs) incurred by Velocity as a result of the collection of outstanding monies owed by the Customer to Velocity under this Agreement.
6.7 The amounts payable by the Customer to Velocity for, or in connection with, the Services under this Agreement will include any GST payable in connection with the provision of the Services. Upon request, Velocity will provide the Customer with invoices in the form of tax invoices.
6.8 If the rate at which GST is imposed increases after 1 July 2003, the amounts payable by the Customer to Velocity for, or in connection with, the Services under this Agreement shall be increased by such amount as is required to compensate Velocity for this additional liability.
6.9 A $15 late fee will automatically be charged to accounts that are not paid within 7 days of their due date. A further $15 fee will be charged at Velocity's discretion if the account remains unpaid for more than 14 days from its due date. This fee is to cover the extra administration costs incurred by Velocity in following up late payments.
6.9.1 Customers require a postal invoice will be required to pay a $5 per invoice charge to cover administration and postage costs.
7.1 You agree that you will comply with our all of Velocity's Policies.
- Technical Support
8.1 Velocity's Services include free technical support in the commissioning of the Service(s). Once the Customer has successfully connected to the Internet and/or gained the additional service(s) they may have purchased, Velocity has fulfilled its "free" support obligations to you. Additional support may be provided, but it would be at an additional cost to the Customer in the event that the reported problem is due to faults in the Customer's software or hardware. Velocity cannot provide free support for faults that are outside its system.
9.1 The Customer releases and indemnifies Velocity, its servants and agents against all actions, claims and demands which may be instituted against Velocity arising out of a breach of this agreement or use of the Service by the Customer or of any other person for whose acts or omissions the Customer is vicariously liable.
- Implied terms
10.1 Subject to subclause 2, any condition or warranty which would otherwise be implied in this agreement is hereby excluded.
10.2 Where 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 shall be deemed to be included in this agreement. However, the liability of Velocity for any breach of such condition or warranty shall be limited, at the option of Velocity, to one or more of the following:
a) if the breach relates to goods:
i) the replacement of the goods or the supply of equivalent goods;
ii) the repair of such goods;
iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
iv) the payment of the cost of having the goods repaired; and
b) if the breach relates to Services:
i) the supplying of the Services again; or
ii) the payment of the cost of having the Services supplied again.
- Liability of Velocity
11.1 Except in relation to liability for personal injury (including sickness and death), Velocity shall be under no liability to the Customer in respect of any loss or damages (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or Services supplied pursuant to this agreement or in respect of a failure or omission on the part of Velocity to comply with its obligations under this agreement.
12.1 Velocity may immediately terminate this agreement without notice if the Customer breaches this agreement.
13.1 By commencing use of the Services, the Customer acknowledges that the use of the Services is subject to the terms and conditions of this Agreement and associated Policies.
13.2 This agreement supersedes any prior agreements, undertakings and arrangements.
- Changes to the Services, the Terms and Conditions or our Policies
14.1 When a customer requires a change to their Services, either by way of upgrading, downgrading, temporary suspension or cancellation, they must do so by requesting the change to Velocity in writing (email accepted). The request will be processed and put into effect on the Renewal Date for the following month. Such requests must be received before the 25th of each month in order to be processed so that the User is not billed for the next usage period. The cancellation request must include the username and password of the account to be closed.
14.2 If the Customer requires a temporary suspension of Service, then the Customer acknowledges that this can only occur from the Renewal Date, and for a maximum period of 3 months. Various services (such as ADSL) may not be able to be suspended due to the third party costs that Velocity must pay for the Customers service. It is the Customers responsibility to contact Velocity to request the reactivation of the Services.
14.3 Velocity may by notice to the Customer at any time at its discretion change the specifications of the Services, the terms and conditions of this Agreement or the Policies. These changes will be effective immediately upon Velocity providing notice to the Customer.
15.1 All notices to Velocity may be:
a) posted to:
ByteCard Pty Ltd (Trading as Velocity Internet)
PO Box 6081
Mawson ACT 2607
b) sent by email to:
15.2 All notices to the Customer may be posted, faxed or sent by electronic mail in accordance with the information provided by the Customer in his or her Membership Form.
15.3 A notice will be deemed to be served:
a) 48 hours after posting;
b) on transmission by the sender (if faxed); or
c) on transmission by the sender (if e-mailed).
16.1 The Customer must not assign the benefit of this agreement to any person without the written consent of Velocity.
17.1 This agreement shall be governed by the law of the Australian Capital Territory and the parties agree to submit to the jurisdiction of the courts and tribunals of that Territory.
18.1 A waiver of Velocity's rights under this agreement must be in writing.