Terms & Conditions

Annexure A – General Terms & Conditions

Definitions:

Acceptable use policy means the terms and conditions governing the use of the services of alpha dot net Australia Pty Ltd (ABN 50 074 289 151).
Access Period means an agreed renewable period of time paid for in advance.
Application for service means Customer’s application setting out the description of the service required by the Customers.
Agreement means the Agreement between Alpha dot net Australia Pty Ltd as provider and the Customer as end user of our Services.
Carrier means a carrier as defined in the Telecommunications Act 1997.
Charges means all money payable by the Customer to Alpha dot net Australia Pty Ltd for services provided.
Confidential Information includes information and all other knowledge with respect to Alpha dot net Australia Pty Ltd, its products, services and the terms of this agreement (including prices and charges), or information considered by us as confidential regardless of its form, or which by its nature is considered confidential, but excludes information that is in the public domain.
Customer means the person or corporation applying to us and accepted by us as user of our services.
Customer Premises means the premises to which our services are to be connected for the use of the Customer.
GST means the goods and services tax levied or imposed by the Commonwealth of Australia under A New Tax System (Goods and Services Tax) Act 1999.
Minimum Period means the minimum term of this Agreement specified in the Application for Service or in the relevant price list.
Rate Card means the list of fees for standard services as posted on our website.
Service Access Line means the dedicated access line between our premises and the Customer Premises or between two or more Customer Premises as approved by us for use in connection with our services.
Service means services supplied by alpha dot net Australia Pty Ltd to Customers including the installation, supply and maintenance of those services and associated equipment.
We means alpha dot net Australia Pty Ltd (ABN 50 074 289 151) and the words alpha dot net, us and our have the corresponding meaning referring to alpha dot net Australia Pty Ltd (ABN 50 074 289 151).

 

Access Period

1.1 You agree to subscribe to our services for either a Fixed Term as specified in the Service Agreement or a Monthly Term.
1.2 We shall provide the Service to the Customer from the commencement date for the duration of the access period.
1.3 On expiry of the Term the services may be renewed for subsequent Terms of similar duration to the Initial Term, subject to approval by us or carrying over on a monthly basis.  We will provide these continuing services on the terms and conditions set out in this Agreement.
1.4 Renewal of this agreement for a subsequent period may involve an adjustment to the charges as a condition of alpha dot net providing its consent to renewal.

Provision of Services

2.1 We shall provide the services on a continuous basis and shall inform the Customer if the service is unavailable for access due to maintenance or any other factor.
2.2 We shall provide the client with all identification and login information required for connection to the service.
2.3 Alpha dot net will provide a help desk: The help desk can be contacted by telephone on 02 9211 7782, at the times published on our website;
2.3.1 The help desk can be contacted by email at support@alpha.net.au;
2.3.2 The help desk support is limited to assisting you to gain or regain access to services supplied by alpha dot net;
2.3.3 The help desk excludes support for applications installed on your computer including, but not limited to, virus protection and firewall software.
2.4 We shall use reasonable efforts to rectify any problems as soon as possible.
2.5 If you report a fault and we find there is no fault or the fault was not caused by us, we may charge you for any work we have done to try to find the fault or repair it in accordance with the rates set out in the alpha dot net Rate Card.
2.6 We have the right, without liability, to suspend the provision of the Services to the customer, if:
2.6.1 The customer is in default of any payment or obligation under this Agreement;
2.6.2 We are required to perform maintenance or other service work in connection with the Service Access Line or its network or systems;
2.6.3 We are required to comply with any requirement of any government or semi-government organization or in any emergency.
2.7 If we suspend the provision of services pursuant to Clause 4.6.3, we shall give to the Customer a pro-rata rebate of the monthly service fee for the period of suspension.
2.8 Our Service is provided without warranty that it is continuous or fault-free.  Subject to the Law and this Agreement we shall not be held liable for any loss or disappointment you may suffer as a result of any faults or interruptions to our Service.
2.9 Our liability for failure to supply the services under this agreement is limited to re-supplying or paying for the re-supply of the services or materials at our discretion.
2.10 We shall not be liable for any consequential loss or damage of any nature that the Customer might suffer in the use of services, however caused.

Use of Services

3.1 Throughout the access period, the Customer shall comply with the provisions of these Terms and Conditions, our Acceptable Use Policy and our Service Level and Mutual Obligations Policy.
3.2 The Customer acknowledges that we do not in any way supervise, edit or control the content or form of any information or data accessed through the service and that we shall not be held responsible in any way for any content or information accessed via the Service.
3.3 We disclaim any or all liability for any material on the Internet that the Customer finds offensive, upsetting, defamatory, and personally offensive and in any way unsuitable for people under the age of eighteen (18) years.
3.4 The Customer is responsible for preparing and maintaining sufficient back up of his electronic information, files and data storage capacity including electronic messages.
3.5 The Customer is responsible for maintaining the secrecy and confidentiality of all access information required by the Customer to access our services, and you agree not to disclose to any other person, corporation, entity or organization any access information, whether in use or not.
3.6 The Customer must notify us immediately if their username and password are lost, or the Customer thinks someone else is using them.  The Customer will be liable for all fees resulting from use of our services accessed through their access information, whether authorized by them or not.
3.7 The Customer agrees to keep confidential any confidential information acquired from us under this Agreement or in the use of our services.
3.8 Training in the use of our services is not included in our rates, but it can be provided for an additional fee.

Charges

4.1 Unless otherwise stated, charges include all money payable by the Customer for installation and supply of our service, monthly or other periodic service and usage fees, excess usage fees (not applicable to unlimited connections) and costs of supply of equipment to the Customer.
4.2 The Customer must pay all charges in advance of connection or renewal of the access period.
4.3 Service fee includes:
4.3.1 During the minimum period, the price or relevant tariff plan specified in the application for service;
4.3.2 After the minimum period, at our then current published rates for the service.
4.4 The Customer is liable for all fees resulting from use of the service accessed through the Customer’s identification or login information, whether or not authorized by the Customer.  An invoice served by us shall be deemed to be correct and prima facie evidence of all connection, access, usage and other fees contained therein.
4.5 A charge may apply for posted invoices, accounts not paid by direct payment, if you request a change to your account or if you ask for historical account information. We will inform you of the charge prior to it being applied.
4.6 The Customer must pay all fees and charges within 14 days of the date of invoice.  Failure to do so will result in your services being disabled.
4.7 A reestablishment fee equal to the original establishment fees will be charged to re-enable the required services.
4.8 Copies of mail, logs, data, backups and code source will not be provided if the services are disabled.
4.9 We have the right to charge interest on any charges not paid by the due date at a rate equal to 3% above the Commonwealth Bank Corporate Overdraft Reference Rate or such other comparable rate chosen by us. 4.10 The customer shall be liable to pay us all costs and expenses (including legal costs) incurred by us in claiming payments due under this agreement.

4.11 We may withdraw any discounts that you receive from us in connection with the supply of the services if you fail to pay our invoice by the due date.
4.12 All charges include GST levied or imposed by the Australian Government at the rate current at the date of the Agreement. If the GST rate is changed by the Law, or other consumer taxes are imposed on the supply of the services by the Law, the parties agree that the price in this agreement shall be adjusted to reflect the changes according to the Law.

Invoicing and Billing

5.1 We shall invoice the customer monthly or at different intervals at our discretion, showing particulars of fees and charges.
5.2 We shall bill the customer in advance for installation, equipment, maintenance and access charges and for usage or data consumption in arrears.
5.3 We may apply the whole or any part of money paid in advance by the customer towards payment of any service rendered to the customer that remains not invoiced or unpaid.

Credit Checks

6.1 For the purpose of processing the Customer’s application, establishing the Customer’s account and the ongoing credit management of the Customer’s account, we may need to disclose to a credit-reporting agency, personal and business information relating to the Customer which is in our possession. The Customer hereby consents to any such disclosure.
6.2 The Customer consents and permits us to receive from any credit-reporting agency personal and business information that we require to assess the suitability of the Customer to receive our services or to enable us to claim money owed to us by the Customer.
6.3 The Customer agrees that we may obtain from any person or body carrying on the business involving the provision of information about the commercial creditworthiness of persons, any information concerning the Customer that concerns the Customer’s commercial activities or commercial creditworthiness for the purposes of assessing the Customer’s Application for Services. We may refuse or cancel our services to the Customer on the basis of our assessment of the Customer’s credit worthiness. We, at our absolute discretion, may refuse to offer any services if the Customer fails our criteria for credit worthiness.  We may also require the Customer to provide a bond or other surety before offering services.
6.4 The Customer agrees that we can disclose a credit report or other report to any other credit provider nominated by the Customer or any other supplier for the purpose of:                                                                                                                                                                                                                                                                                                                                          5.4.1 Assessment of the Customer’s creditworthiness; or
6.4.2 The collection of payments that are overdue.
6.5 The Customer is entitled to see and to correct any of his credit information in our possession.

Hosting Services

7.1 This clause applies to customers of our Hosting Services
7.2 Hosting Services means the service provided by us pursuant to the Service Agreement
7.3 Hosting Fees are set out in our Rate Card and are exclusive of any registration or delegation charges imposed by domain name authorities.
7.4 If the Server Hosting Service is selected, the Customer’s server is installed in our Server Racks.  The Customer’s Server is connected directly to the Internet.  The Customer is responsible for maintenance of their hardware and software.
7.5 If Web hosting service is selected, the customer’s web site will be located on our shared Cpanel web hosting environment.
7.6 We will endeavor to ensure the necessary resources are available to the Customer for the provision of the Web or Server Hosting selected by the Customer within 14 days of the commencement of a web or server hosting agreement.
7.7 We will provide the Server Hosting Customer with:
7.7.1 Internet connectivity via a 100MB 100baseT Ethernet connector;
7.7.2 240v power circuit from uninterruptible power supply unit; and
7.7.3 The Hosting option chosen by the Customer.

ADSL2/2+ Broadband Services

8.1 This clause applies to Customers of our aDSL2 Broadband Service.
8.2 We shall provide you with our aDSL2 Broadband Service at your request.
8.3 You must provide your own computer, analogue phone line and power supply.
8.4 You agree not to connect any equipment other than the equipment authorised by us.
8.5 You warrant that you have absolute legal rights to the use of the telephone line at your premises to access our ADSL Broadband Service
8.6 You agree that you will be liable for any cancellation fee in the event that the legal lessee terminates the standard telephone service and as a consequence causes you to terminate the use of our aDSL2 service;
8.7 You acknowledge that installation of our aDSL2 Broadband Service may cause a minor disruption to you or the legal lessee’s standard telephone service during the installation;
8.8 You acknowledge that certain incompatible products may not be available to you.
8.9 You must pay the monthly fee and additional MB rate set out in our Rate Card for the pricing plan which you nominate from the date on which we commence supplying the alpha dot net aDSL2 Broadband Service to you.
8.10 When you cancel the alpha dot net aDSL2 Broadband Service prior to installation, you will be charged a nominal cancellation fee. If you cancel the service after installation, normal cancellation fees apply. Any equipment we have supplied to you must be returned to us in the original packaging and in good order within 30 days. You will be charged for any equipment that is not returned within this time frame.
8.11 If you ask us to change either or both the speed or download option for your selected aDSL2 Broadband plan, you will be charged a nominal service modification fee as set out in our Rate Card.
8.12 You must provide a suitable place and conditions for the broadband transmission facilities. You must provide electricity and connection points for the broadband transmission facilities and equipment at your own expense.
8.13 If you ask us to change the supply of our aDSL2 Broadband Service to another address, we cannot guarantee that we will be able to provide the Service at the new address. You will have to pay any charges for installing the Service at the new address and you agree that we shall not be liable for any delay you may experience as a result of the relocation.
8.14 If you want us to provide the ADSL Broadband Service at an additional place to your premises, you will have to sign a separate agreement with us.

NBN Broadband Services

9.1 This clause applies to Customers of our NBN Broadband Service.
9.2 We shall provide you with our NBN Broadband Service at your request.
9.3 You must provide your own computer, power supply and confirm NBN availability.
9.4 You agree not to connect any equipment other than the equipment authorized by us.
9.5 You warrant that you have absolute legal rights to the use of the NBN service at your premises to access our NBN Broadband Service
9.6 You agree that you will be liable for any cancellation fee in the event that the legal lessee terminates the NBN and as a consequence causes you to terminate the use of our NBN Broadband service;
9.7 You acknowledge that installation of our NBN Broadband Service may cause a minor disruption to you or the legal lessee’s standard telephone service during the installation;
9.8 You acknowledge that certain incompatible products may not be available to you.
9.9 You must pay the monthly fee and additional MB rate set out in our Rate Card for the pricing plan which you nominate from the date on which we commence supplying the alpha dot net NBN Broadband Service to you.
9.10 When you cancel the alpha dot net NBN Broadband Service prior to installation, you will be charged a nominal cancellation fee. If you cancel the service after installation, normal cancellation fees apply. Any equipment we have supplied to you must be returned to us in the original packaging and in good order within 30 days. You will be charged for any equipment that is not returned within this timeframe.
9.11 If you ask us to change either or both the speed or download option for your selected NBN Broadband plan, you will be charged a nominal service modification fee as set out in our Rate Card.
9.12 You must provide a suitable place and conditions for the broadband transmission facilities. You must provide electricity and connection points for the broadband transmission facilities and equipment at your own expense.
9.13 If you ask us to change the supply of our NBN Broadband Service to another address, we cannot guarantee that we will be able to provide the Service at the new address. You will have to pay any charges for installing the Service at the new address and you agree that we shall not be liable for any delay you may experience as a result of the relocation.
9.14 If you want us to provide the NBN Broadband Service at an additional place to your premises, you will have to sign a separate agreement with us.

Equipment

10.1 Except where specifically noted and where expressly specified, all equipment is provided with a twelve (12) month maintenance period.
10.2 If the equipment we provide you fails to operate for any reason within the maintenance period, we will repair, refurbish or replace part or the entire piece of equipment at our discretion. Replacement parts and entire pieces of equipment may be new or refurbished items. If we provide a replacement part or entire piece of equipment to you, you must return the replaced part or entire piece of equipment to us. Our decision to repair, refurbish or replace the equipment is final.
10.3 We will only service and maintain the equipment during the maintenance period as set out in this clause if:
10.3.1 We have supplied the equipment to you (including the supply of a new or refurbished piece of equipment under the service and maintenance terms in this clause);
10.3.2 You have maintained the equipment in accordance with the instructions we provide and you have not modified the equipment in any way; and 12.3.3 The equipment has only been used with our network.
10.4 If this Agreement is terminated for any reason before the end of the Maintenance Period, our maintenance service shall cease forthwith.
10.5 The service and maintenance terms in this clause will not apply if the Equipment is faulty as a result of:
10.5.1 Any abuse, misuse, neglect, mishandling or misapplication, accident, improper maintenance or service; unusual hazards (including, but not limited to, exposure to excessive humidity, heat, cold, dust, food, liquids, magnetic or electromagnetic interference or incorrect power voltage);
10.5.2 Electrical supply problems or failure to provide a suitable environment for the Equipment; or
10.5.3 Any natural disaster (including but not limited to floods, lightning and fire), acts of terrorism or any other cause beyond our reasonable control.
10.6 The service and maintenance we provide is also subject to the supply of suitable parts, components, materials and labour being available.
10.7 Our obligation to service and maintain your equipment under this clause is not transferable to any party to whom you transfer or sell the equipment.
10.8 The services offered under this clause are in addition to any other non-excludable rights you may have at law, including rights created under the Trade Practices Act pursuant to non-excludable conditions or warranties. All other terms not expressly included in this promise to maintain are excluded.
10.9 We will only provide services under this clause if we receive notice of the equipment fault within the maintenance period.
10.10 If the Customer uses his own equipment to receive our supply of services, he must ensure that the equipment has all necessary regulatory approvals, is not prohibited by the Australian Communications Authority (ACA), complies with all applicable regulatory standards and is capable of operating with the Service. If there are faults with the equipment, causing interference with the services, we may require the customer to stop using the equipment until the problem is corrected.
10.11 If we provide any equipment to the customer other than by sale, then:
10.11.1 The equipment remains our property;
10.11.2 The Customer shall ensure that it has all necessary consents and approvals (including landlord approval where applicable) for us to deliver, install and maintain the equipment at the customer premises;
10.11.3 The Customer shall not part with possession of the equipment to any third party except to us at the termination of the service;
10.11.4 The Customer shall use the equipment at his own risk at his premises;
10.11.5 We may, at any time, and from time to time change, modify or service the equipment;
10.11.6 The Customer shall ensure that we have access to the equipment during normal business hours or at such other times as the parties shall agree. This right of access does not end until the equipment is returned to us;
10.11.7 The Customer shall ensure that the equipment will not be altered, repaired, serviced or moved, except by service personnel approved by us; and
10.11.8 The Customer shall provide a suitable environment at the customer premises for the storage and operation of the equipment. This will include ensuring that an adequate power supply for the operation of the equipment used is available.

Transferring Accounts

11.1 If the Customer wishes to transfer their account from any third party provider of services to us, the Customer must:
11.1.1 Notify the other provider to transfer the services to us;
11.1.2 Give us an authority to advise the customer’s other service suppliers that the services are to be provided by us in place of the other supplier and to sign on the customer’s behalf and in the customer’s name forms of authority to the customer’s other supplier to transfer the provision of the services to us;
11.1.3 Pay to the other supplier all amounts owing for the transferred services including alteration of charges which the other supplier may demand up to the time of transfer of those accounts;
11.1.4 If we pay or credit any amount to the other supplier for the transfer, the Customer shall reimburse us for that amount; and
11.1.5 If the other supplier credits us with any amount concerning the transferred services, we shall credit that amount to the customer.
11.2 If the Customer requests us to transfer services provided to the Customer to another supplier, the Customer must pay us his account for services up to the time of the transfer before we can proceed with the transfer.
11.3 The customer agrees that we may at our discretion pay commission to any third party who introduces the Customer to us.

Indemnity

12.1 The client releases and indemnifies alpha dot net, its servants and agents against any loss, damage, costs, claims and expenses which alpha dot net may incur arising out of:
12.2 The use of the Customer Data by alpha dot net for the purposes of serving it to Internet users;
12.3 Any of the Customer’s warranties or covenants under this Agreement being, or becoming false, misleading or deceptive;
12.4 Any loss, damage, injury, claim or expense incurred by any user as a result of any user relying on any fact, statement or opinion in the Customer Data (whether negligent or otherwise);                                                                                                                                                                                                                                                                                                                                                                                12.5 Any offense taken by any person to any fact, statement or opinion in the Customer Data;
12.6 A breach of the Service Agreement by the Customer or any other person, for whose acts or omissions the Customer is vicariously liable; or
12.7 The installation, maintenance or removal of any equipment or the provision of any service to your premises.

Implied Terms

13.1 Subject to the implied terms set out in the following Clause 17.2, any condition or warranty, which would otherwise be implied in these Terms and Conditions, is hereby excluded.
13.2 Where legislation implies in these Terms and Conditions any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application or exercise of, or liability under, such condition or warranty, the condition or warranty shall be deemed to be included in these Terms and Conditions.  However, any breach of such condition or warranty shall be limited, at our option, to one or more of the following:
13.2.1 If the breach relates to goods:
13.2.1.1 The replacement of the goods or the supply of equivalent goods;
13.2.1.2 The repair of such goods;
13.2.1.3 The payment of the cost of replacing the goods or of acquiring equivalent goods; or
13.2.1.4 The payment of the cost of having the goods repaired;
13.2.2 If the breach relates to services:                                                                                                                                                                                                                                                                                                                           13.2.2.1 The supplying of the services again; or
13.2.2.2 The payment of the cost of having the services supplied again.

Liability of Alpha Dot Net Australia

14.1 We indemnify the Customer against loss, damage, costs, claims and expenses which the Customer may incur arising out of any breach by us of our warranties under this Agreement up to the total of the connection fees paid by the Customer.
14.2 Except in relation to liability for personal injury, we shall be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which the Customer may suffer in the use of our services or equipment.

Termination

15.1 We may immediately terminate this Agreement or any part of it without prior notice to the customer if:
15.2 The Customer fails to pay his account after being provided with 7-day notice in which to rectify this breach;
15.2.1 The Customer breaches a term of this Agreement other than an obligation to make payment by the due date and fails to correct that breach within 7 days of written notice to do so;
15.2.2 The Customer fails to comply with any license, permit or authorization relating to the connection of equipment to the service access line or the use of the service;
15.2.3 A service access line has been disconnected by anyone other than us;
15.2.4 We become aware of fraud or misuse of the services; or
15.2.5 The Customer becomes bankrupt or a receiver or a liquidator or provisional liquidator or an administrator is appointed to customer or customer enters into an arrangement with its creditors.
15.3 After the expiration of the minimum period, either party may terminate this Agreement by serving a 30-day or one billing period written notice on the other party effective upon the date when the written notice is delivered to the registered office of that other party, or upon such later date as specified in that notice.
15.4 Notwithstanding termination, the customer remains liable for all charges payable under the agreement in respect of services up to the time of termination.
15.5 Termination of this Agreement is without prejudice to the rights of each party against the other accrued up until the date of termination.
15.6 If the customer terminates this agreement during the minimum period, the Customer shall pay to us, by way of liquidated damages, an amount calculated by multiplying the minimum monthly charge, payable by the customer under this agreement, by the remaining months (or part thereof) of the minimum period, EXCLUDING THE OFFICE CONNECT PRODUCT. The customer will also pay reasonable costs for the removal of our equipment (not applicable for Office Connect).
15.7 The Office Connect product is provided to the client on a 24 month agreement, however this may be cancelled before the minimum period (24 months) without penalty to the client if the termination is due to the client vacating the building. Please provide a minimum of seven (7) days’ notice from the date the cancellation is required. The Office Connect agreement may only be terminated prior to the minimum period (24 months) by agreement from both Alpha Dot Net and the client.
15.8 The customer may immediately terminate this agreement or any part of this agreement if:
15.9 We fail to comply with any license, permit or authorization relating to the provision of the service access line or the use of the Service;
15.10 We commit a material breach of a term of this agreement and fail to correct that breach within 14 days of written notice from the customer; or
15.11 We go into liquidation, voluntary or otherwise.

Assignment

16.1 You may not transfer, in whole or in part, the right to use our services or any other rights in this Agreement to anyone without our prior written consent
16.2 We have the right to transfer to any person or corporation our rights, titles in our property, goodwill, leases, agreements, contracts and licenses without having to notify any Customer.

Law

17.1 This agreement shall be governed by and construed in accordance with the laws for the time being in force in the State of New South Wales, Australia, and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.

Waiver

18.1 No forbearance, delay or indulgence by a party in enforcing any of 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 by the other.

Serviceability

19.1 If any provision of this Agreement is invalid, that provision shall be deemed severed from the Agreement; and its severance shall not affect the validity of the Agreement as a whole.

Force Majeure

20.1 No party is liable for any failure to perform and/or delay in performing its obligations under this Agreement, if the failure or delay is due to anything beyond that party’s reasonable control.  If that failure or delay exceeds sixty (60) days either party may terminate this Agreement with immediate effect by giving notice to the other party. This clause does not apply to any obligation to pay money.
20.2 We shall not be liable for any failure to perform, or for any delay in performing any of our obligations under this agreement where such failure or delay is occasioned by strike or other industrial action; shortage of labour; failure or delays by other suppliers or contractors; legislative, governmental or other prohibitions or restrictions; fire, flood, war or other causes whatsoever beyond our control.

Dispute Resolution

21.1 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 Arbitration’s of the Institute of Arbitrators, Australia. During such arbitration, a duly qualified legal practitioner may represent both parties.

Changes to the Terms & Conditions

22.1 We can change these Terms and Conditions at any time by adding, varying or withdrawing services including variations to pricing, composition or operation.                                                                                            22.2 It will be sufficient that we notify you only of the fact that these Terms and Conditions have been changed and that we post a revised copy of these Terms and Conditions on the Alpha Dot Net website.
22.3 We may notify you of changes to these Terms & Conditions either by email to your email address, mail to your billing address, by fax or by general notice on the alpha dot net website.  When we elect to provide notices to you by email, you will be deemed to have received the email notification, in the absence of any evidence received by us to the contrary.  It is your responsibility to read email alerts and check our website.
22.4 If we change these Terms and Conditions in a manner which we reasonably consider would cause detriment to you we will notify you of the change at least 30 days in advance. Our assessment of whether a change would cause detriment to you will include consideration of your usage patterns over the three (3) months immediately preceding the change. If we reasonably consider that a change causes detriment to you and notify you of the change, but you do not accept the change, you may terminate this agreement, but you must notify us of such termination within 14 days of our notice. If you notify us that you wish to terminate, the termination will take effect from the date the change to these Terms and Conditions comes into effect, as specified in our notice. Notwithstanding that you may send us notice of termination under this clause, if you continue use of our service beyond the date of the change, you will be charged for such use. Your continued use of our services beyond the date of the change will be deemed acceptance of the changes.

Entirety of Agreement

22.1 This Agreement contains the entire agreement between the parties and it’s provisions supersedes any representations, promises or undertakings that might have been given by either party previously.

Annexure B – Acceptable Use Policy

1.1 This is alpha dot net’s Acceptable Use Policy, which forms part of our Terms and Conditions (the definitions in respect of the terms used in this Policy are contained in our Terms and Conditions).
1.2 This policy is intended to ensure that the Customer’s use of our service is trouble-free and that the Customer has due regard to the law and the rights and needs of other users
1.3 In the use of our Services, the Customer shall comply with:
1.3.1 All our directions and requirements in the use of the Services; and
1.3.2 Any requirements or regulations of any government or telecommunication authorities regarding use of our services including the regulations of any providers whose resources we use in providing our services to the customer.

Customer Responsibilities

2.1 The Customer is responsible for use of the Customer’s account.
2.2 If the Customer permits others to use our service, the Customer is responsible for making those users of our service aware of this policy and obtaining their compliance with this policy.
2.3 The Customer is responsible for complying with all conditions of use of other networks accessed by The Customer.
2.4 If we provide the Customer with access to a network outside our service, the Customer must comply with any acceptable use conditions which apply to that network.
2.5 The Customer acknowledge that any material that the Customer makes available online using our services is their own responsibility and that we accept no liability for any such material.
2.6 The Customer must use our Service and Services in a manner which does not violate any applicable laws or regulations.
2.7 The Customer must respect the conventions of the newsgroups, lists and networks that the Customer uses.
2.8 The Customer must respect the legal protection afforded by copyright, trademarks, license rights and other laws to materials accessible via our service.
2.9 The Customer must respect the privacy of others.
2.10 The Customer must use our service in a manner which does not interfere with or disrupt other network users, services or equipment.
2.11 The Customer must refrain from acts that waste resources or prevent other users from receiving the full benefit of our services.
2.12 The Customer’s use of our services should be ethical and in accordance with accepted community standards.
2.13 Specific kinds of use are not allowed.  They include but are not limited to the following:
2.14.1 The Customer must comply with the Law.  It is not acceptable to use our service for any purpose which violates local, State, Federal or international laws;
2.14.2 The Customer must not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information or material of any kind (including but not limited to information or material accessed through or received from our services) that infringes any copyright, patent, trade mark, design or other intellectual property right or, in our reasonable opinion, is likely to mislead or deceive any person accessing the relevant information or material;
2.15 The Customer must not illegally store, use or distribute software;                                                                                                                                                                                                                                                                  2.16 The Customer must not transmit threatening, obscene or offensive materials;
2.17 The Customer must not engage in electronic `stalking’ or other forms of harassment such as using abusive or aggressive language;
2.18 The Customer must not misrepresent or defame others;
2.19 The Customer must not commit fraud;
2.20 The Customer must not gain unauthorized access to any computing, information, or communications devices or resources, including but not limited to any machines accessible via the Internet;
2.21 The Customer must not damage, modify or destroy the files, data, passwords, devices or resources of alpha dot net, other users or third parties;
2.22 The Customer must not engage in misleading or deceptive on-line marketing practices;
2.23 The Customer must not conduct any business or activity or solicit the performance of any activity that is prohibited by law; and
2.24 The Customer must not make an unauthorized transmission of confidential information or material protected by trade secrets.
2.25 The Customer must not attempt to do any of these things.
2.26 Disruption of the network is prohibited.
2.27 The Customer must not distribute messages to inappropriate or unrelated forums, newsgroups or mailing lists.
2.28 The Customer must not send unsolicited commercial messages.
2.29 The Customer must not send unsolicited bulk commercial email, including the use of other non-consenting mail relay systems.
2.29 The Customer must not propagate computer worms, viruses and other types of malicious programs.
2.30 The Customer must not use our services to make available online any material that is illegal, including, but not limited to, material that is classified, or would be classified, as RC or X under the National Classification Code set out in Schedule 5 of the Classification (Publications, Films and Computer Games) Act 1995 (SA).
2.31 The Customer must not use our services to provide unrestricted access to material online that is unsuitable for minors.
2.32 The Customer must not make transmissions of any type or quantity which adversely affect our operation or jeopardize the use of our service, or its performance for other users.
2.33 The Customer must not harass or impersonate alpha dot net or other users.
2.34 The Customer must not solicit users to become members of other competitive services.
2.35 Resale of our services to others is strictly forbidden, except where explicitly allowed by an agreement with us.

Misuse Of Services

3.1 We may monitor the Customer’s account to ensure that this Policy is being followed, but will respect the Customer’s privacy.
3.2 If we monitor the conduct of the Customer’s account we will safeguard the Customer’s privacy unless to do so would involve us in concealment of a criminal offense or inhibit the enforcement of this policy.
3.3 We will make an effort to contact the Customer before taking action if we become concerned that the Customer’s use of our service may break the law or that the Customer has not complied with this policy, unless to do so would involve us in concealment of a criminal offense or inhibit the enforcement of this policy.
3. In the event of a breach of the Acceptable Use Policy we may, at our discretion, terminate the Customer’s account and/or notify the authorities.
3.5 If we believe that the Customer’s use of our service may break the law or that the Customer has not complied with this policy we may:
3.5.1 Warn the Customer by email;
3.5.2 Suspend the Customer’s access to the service;
3.5.3 Terminate the Customer’s account without notice;
3.5.4 Notify and provide relevant information to the authorities, as appears appropriate in the circumstances.
4.1 In the event of taking action under this clause we reserve the right to delete any or all of the Customer’s information, material, software or other content stored on our system at our sole discretion.
4.2 We will re-establish services if resolution is achieved and:
4.3 If the Customer does not repeat the breach of this policy;
4.4 If we do not regard an instance of conduct causing our intervention as dangerous or serious; and
4.5 If the cause of our intervention is addressed and resolved.

Annexure C – Mutual Obligation Policy

Definitions:

Basic Maintenance means the tasks performed on the equipment which generally require less than 15 minutes to perform. These tasks may include ‘Changing Tapes’, ‘Rebooting routers’, ‘Powering Down Devices’.
Border Router/s means the Router/s which connect alpha dot net’s network to the Internet.
Customer Data means all information, data, text, logos, images, audio or content of any sort which forms part of the Customer’s web sites.
Customer Software means all software developed or provided by the customer and used by the service.
Data Transfer means the number of MB inbound and outbound.
Detailed Maintenance refers to all tasks not covered by Basic Maintenance and excludes any installation and commissioning tasks which are expressly covered in any other agreements.
Network Availability is the TCP/IP ping test between the testing server and alpha dot net’s Border Router.
Network Latency refers to the time delay reported by the ping test.
Scheduled Maintenance means Maintenance which needs to be performed on alpha dot net’s servers/equipment and which may affect connectivity from the Customer’s site to the Internet. Alpha Dot Net will provide at least 48 hours notice of the Scheduled Maintenance.
Services means the elements outlined in the Service Agreement and any other facilities provided by alpha dot net to the Customer.

1.1 This is Alpha Dot Net’s Mutual Obligations Policy, which forms part of our Terms and Conditions (the definitions in respect of the terms used in this Policy are contained in our Terms and Conditions).
1.2 If you are a client of Alpha Dot Net who requires services by us then we will provide these services on the terms and conditions set out in this agreement.
1.3 The terms and conditions contained in this Agreement are in addition to those specified in our Terms & Conditions.
2.1 Within 14 days of the date of the signed Service Agreement or some other period of time as specified in the Service Agreement and the payment of any specified deposits, Alpha Dot Net will endeavor to ensure the necessary resources are available to the customer for the provision of the services selected by the customer.
2.2 We will provide the customer with:
2.2.1 Internet connectivity as described in the signed Service Agreement;
2.2.2 Gateway facilities as described in the signed Service Agreement;
2.2.3 The server hosting facilities as described in the signed Service Agreement;
2.2.4 IP addresses as described in the signed Service Agreement; and
2.2.5 Any additional services which we are to supply as detailed in the Service Agreement.
2.3 In the case where the service involves a dedicated machine and a period of prolonged development, we may at our discretion provide interim facilities in an effort to accommodate the systems development life cycle.
2.4 In the case of services provided at Customer premises the Customer is required to supply suitable rack space, power and environmental control.
2.1 We will perform Scheduled Maintenance to the company’s equipment from time to time as deemed necessary and will provide 48 hours notice of such maintenance work.
2.2 Unscheduled Basic Maintenance or Detailed Maintenance may need to be performed due to data corruption or equipment failure.  In these cases we will send an email alert to the contact names listed on the Service Agreement, if any such unscheduled maintenance:
2.2.1 Requires the Customer’s service to be off-line for more than 5 minutes; or
2.2.2 Affects the Customer’s site;
2.3 We will nominate a manager to perform all Basic Maintenance and Detailed Maintenance.  We may also perform Additional Maintenance tasks depending on the Service Agreement with the Customer.
2.4 The Customer must ensure that all files are accessible at the time of backup (ie, files are not locked or in use during backup).
2.5 Unless contrary to the details of the Service Agreement, Customers need to provide their own backup and restore mechanisms as this will not be performed by Alpha Dot Net.
3.1 We do not warrant that:
3.1.1 The services provided under this Agreement will be uninterrupted or error free;
3.1.2 The services will meet the Customer’s requirements, other than as expressly set out in the Service Agreement; or
3.1.3 The services and systems provided under this Agreement will be free from external intruders (hackers) or other persons having access to the services or systems without our consent.
3.2 We do warrant that:
3.2.1 The alpha dot net computer room is a secure area and accessed only by our authorized staff;
3.2.2 All other visitors to secure areas will be accompanied by an authorized alpha dot net staff member;
3.2.3 We may charge for the time of the accompanying staff member;
3.2.4 We will undertake to deliver as near as possible to an error free uninterrupted service from our network operations centre;
3.2.5 We will proactively attend to known issues of security and performance in accordance with best practices;
3.2.6 Packet loss rates from the Server Hosting Option selected by the Customer to the Border Router will be under 1% for 99% of the time; and
3.2.7 Under normal conditions, Network Latency from the Server Hosting Option selected by the Customer to the Border Router will be less than 10ms.
4.1 The Customer acknowledges that:
4.2 We are not responsible for any loss, injury, claim or expense incurred by any user as a result of any user relying on any fact, statement or opinion in the Customer Data (whether negligent or otherwise);
4.3 The Customer shall solely be responsible for the safety of his own property and shall take out appropriate insurance policies to cover damage and loss to his property during the use of our services.
4.4 We are not responsible for ensuring that the Customer’s data or content, installed on our equipment under this Agreement, is covered by the appropriate insurance policies.
4.5 We are not responsible for ensuring that the Customer’s servers and any other hardware and devices, installed on alpha dot net’s premises under this Agreement, are covered by the appropriate insurance policies;
4.6 We may remove, amend, or alter the Customer Data upon being made aware of a Court order, judgment, decree, determination or otherwise being made by a Court, tribunal or other competent body that the Customer Data is illegal, offensive, objectionable or in breach of a third party’s rights;
4.7 We will remove, amend, or alter the Customer Data if directed to do so by the ABA pursuant to a take-down notice in accordance with its obligations under the Broadcasting Services Amendment (Online Services) Act 1999 (as amended).
4.8 We may remove Customer Data from the Customer’s site if an outside party or outside device disrupts or attempts to disrupt the service provided by alpha dot net. The Customer acknowledges that they have no recourse against alpha dot net if this occurs; and
4.9 The Customer is solely responsible for dealing with persons who access the Customer Data, and must not refer complaints or inquiries in relation to the Customer Data to alpha dot net.
5.0 The Customer warrants that:
5.1 It holds, and will continue to hold, the copyright in the Customer Data or that it is, and will remain, otherwise entitled or licensed to use the Customer Data;
5.2 The Customer holds and will continue to hold, appropriate licenses for all proprietary software that it may use in delivering its services and such use does not infringe any third party intellectual property rights.;
5.3 The Customer Data is not knowingly and will not knowingly be, actionable for any breach of copyright, passing off, defamation, breach of confidence, interference with privacy or any contravention of any other law or private right whatsoever;
5.4 They are responsible for payment of all royalties and other fees associated with the use of such third party materials;
5.5 In respect of Customer Data used in connection with advertising, the Customer has, and will continue to materially comply with, all relevant laws with respect to the use of said Customer Data in connection with said advertising;
5.6 The Customer is solely responsible for dealing with persons who access the Customer Data, and must not refer complaints or enquiries in relation to the Customer Data to alpha dot net; and
5.7 In retaining alpha dot net to provide services under this Agreement, the Customer has not relied on and shall not rely on any representation made by alpha dot net which has not been stated expressly in this Agreement.
6.1 On termination or expiry of this Agreement for any reason, alpha dot net must delete all Customer Data from any alpha dot net online storage media.
6.2 On termination or expiry of this Agreement, any Customer Data which is stored on Alpha Dot Net backup media will “age” out over the period of the normal rotation.
6.3 Data held on backup media can be specifically deleted, however the customer will bear the total costs of staff time and resources required to achieve this.  A deposit for this service would be required in advance.  As a guideline only, the time to achieve this could be in the order of one hundred hours and would be charged at the service rate applicable at that time.

Annexure D – Managed Connect Service Level Agreement (SLA)

1.0 Managed Connect is a 24 month contract started from the time of delivery of the service.
Alpha Dot Net shall provide the Managed Connect Services in accordance with the following Service Levels:  Service Criteria Measurement and Frequency of Measurement Target Service Level
Availability SA = Uptime / (Total Time – Excused Downtime) x 100
Where:
• Uptime means: the time (measured in minutes) in any month during which the Service is able to be used by the Customer as intended.
• Total time means: the time (measured in minutes) in any month.
• Excused Downtime means: the time (measured in minutes) in any month during which the Service is not available due to any of the following:
a. Force Majeure
b. Failure of the Customer’s equipment
c. Act or omission of the Customer
d. Planned maintenance
e. Permitted suspension by ALPHA DOT NET of the service
2.0 All equipment belongs to ALPHA DOT NET and may not be sold or sub-leased outside of this agreement.
3.0 Service hours covered in this agreement fall between Monday and Friday, 9am to 5pm (standard business hours), and excludes weekends and public holidays.
3.1 Extended support can be provided at additional service rates.
3.2 If the Managed Connect agreement is terminated by agreement before the 24 month period has expired, the remaining payments are to be paid in full unless otherwise agreed.

Annexure E – Office Connect Service Level Agreement (SLA)

1.0 Managed Connect is a 24 month contract started from the time of delivery of the service.
Alpha Dot Net shall provide the Managed Connect Services in accordance with the following Service Levels:  Service Criteria Measurement and Frequency of Measurement Target Service Level
Availability SA = Uptime / (Total Time – Excused Downtime) x 100
Where:
• Uptime means: the time (measured in minutes) in any month during which the Service is able to be used by the Customer as intended.
• Total time means: the time (measured in minutes) in any month.
• Excused Downtime means: the time (measured in minutes) in any month during which the Service is not available due to any of the following:
a. Force Majeure
b. Failure of the Customer’s equipment
c. Act or omission of the Customer
d. Planned maintenance
e. Permitted suspension by ALPHA DOT NET of the service

Target Service Level

99.9% for any single path.
99.95% for a Service, which consists of multiple paths with complete physical separation.

Rebates for Service Level Failure

Where the Alpha Dot Net fails to achieve the Service Levels specified above in any month of the term of this Service Schedule, the client shall be entitled to a refund of the proportion of the applicable fee set out below in any month. Rebates should be claimed within 60 business days of a failure date.

Failure of all Paths (with complete physical separation)

Less than 27 seconds per calendar month (Percentage of monthly service charge credited: Nil)

21 Minutes to less than 4 hours per calendar month (Availability < 99.95%) (Percentage of monthly service charge credited: 5%)

4 Hours or more per calendar month (Availability < 99.95%) (Percentage of monthly service charge credited: 15%)

Failure of a single Path (with complete physical separation)

Less than 21 minutes per calendar month (Availability < 99.95%) (Percentage of monthly service charge credited: 5%)

4 Hours or more per calendar month (Availability < 99.95%) (Percentage of monthly service charge credited: Nil)

Genuine Pre-Estimate

You acknowledge and agree that the Service Rebate represents a genuine and reasonable pre-estimate of the client’s loss arising from Alpha Dot Net’s failure to deliver the Dark Fibre Services in accordance with the Service Levels.

Sole Remedy

Alpha Dot Nets’ obligation to extend Service Rebates shall be the full extent of Alpha Dot Net’s liability and clients sole and exclusive remedy in respect of any failure by Alpha Dot Net to meet the Service Levels.