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CUSTOMER RELATIONSHIP AGREEMENT (CRA)

 

 

1                   OUR CUSTOMER RELATIONSHIP AGREEMENT (CRA)

 

What is “Our Customer Relationship Agreement”?

1.1               Our Customer Relationship Agreement (or CRA) sets out the standard terms and conditions on which we supply our services and products to our customers.

If there is any inconsistency between any of the terms of our CRA, the order of precedence will be the Service Description, the General Terms and the Pricing Schedule, except that clauses 14 and 15 of the General Terms always prevail over all other terms in our CRA.

 

Where can you obtain a copy of our CRA?

1.2               A copy of our most current CRA as well as a summary of this CRA is available at our offices and on our website. If you have a disability that impedes your ability to read these documents or have difficulty reading or understanding English, you may call our Customer Support for assistance.

 

Changes to Our Customer Relationship Agreement

1.3               In this fast moving industry, we may need to change the CRA from time to time. This may be done without your agreement.

If We reasonably consider that a change to any term of our CRA is likely to benefit you or have a neutral impact on you, We can make the change immediately and do not need to tell you.

However, rest assured that if We make any change which will be detrimental to you, We will notify you at least 21 working days before the proposed change takes effect, either by publishing an advertisement in a national newspaper or notifying you directly, in accordance with the provisions of the Telecommunications Act. We may notify you directly by:

a)                 Direct mail (to the last address that you have given to us);

b)                 Email (to the last email address that you have given to us); or

c)                 Bill message.

 

Telecommunications Legislation

1.4               Telecommunications Legislation permits us to supply telecommunications services to you on the terms and conditions of a “Standard Form of Agreement”. Our Customer Relationship Agreement is our “Standard Form of Agreement”. Under the Telecommunications Legislation you and We must comply with our Customer Relationship Agreement unless you and We have agreed differently.

2                   YOUR APPLICATION FOR SERVICE

2.1               The Service that you have selected is described in the Service Description applicable to the Service you have selected.

Making an Application

2.2               You may make an Application for supply of the

Service to you by:

a)                 Completing and submitting an online application form located on our website; or

b)                 Completing paperwork that we have provided you with and returning it via mail/facsimile or email.

2.3               Subject to our acceptance of your Application in accordance with clause 2.4, our CRA commences on:

a)                 If you apply online, the date you submit the application form;

b)                 If you sign an application form, the date you sign the application form;

c)                 In any other case, the date on which you begin using the service.

 

Accepting your Application

2.4               When you request us to supply the Service to you, which may be made using an application form provided by us, available from our website, or completed by on-line application on our website, or completed over the telephone with our customer representative (“Application”), We decide whether to accept your Application and to supply the Service to you based on:

a)                 the particular terms for that Service;

b)                 your eligibility for that Service;

c)                 Its availability to you;

d)                 Your meeting our credit requirements;

e)                 The accuracy of the information provided to us by you and

f)                  your prior conduct or history in respect of any previous supply by us of any goods or services to you, including your compliance with the relevant terms and conditions under which We supplied those goods or services.

 

3                   CONNECTING THE SERVICE

3.1               Under the Telecommunications Legislation We have to try to connect some Services within particular timeframes. For other Services We will try to connect the Service within a reasonable time.

3.2               We decide the route and technical means that We use to provide the Service.

3.3               You must reasonably co-operate with us to allow us to connect and supply the Service to you safely and efficiently.

4                   USING THE SERVICE

 

Comply with all laws

4.1               In using the Service, you must comply with all laws and all directions by a Regulatory Authority and reasonable directions by us.

 

Prohibited Uses

4.2               You must not use, or attempt to use, the Service:

a)                 To commit an offence or to infringe another person’s rights;

b)                 In any way which damages or interferes (or threatens to damage or interfere) with the Operation of a Service or with the efficiency of our Network or a Supplier’s Network (including because you have inadequate capacity);

c)                 In any way which makes it unsafe or which may damage any property or injure or kill any person;

d)                 In an excessive or unusual way;

e)                 to transmit, publish or communicate any material which is defamatory, offensive, indecent,  abusive, menacing, threatening, harassing or unsolicited, or;

f)                  For illegal purpose or practices;

g)                 Otherwise misuse the Service, or allow anybody else to do so.

Your responsibility

4.3               You are responsible for and must pay for any use of the Service, whether you authorise it or not, and you will continue to be liable for all charges relating to any use of the Service if you allow another person to occupy the Premises or use the Service. Also, if you do not disconnect the Service when you leave the Premises or transfer legal responsibility for the Service in accordance with clause 17.1, you must pay for any use of the Service by later occupants or others. Any person who uses the Service, or allows someone else to use it, after you have vacated the Premises, is jointly and individually liable with you for any charges relating to that use.

 

Interception

4.4               You acknowledge that We may be required to intercept communications over the Service and may (but are not obligated to) monitor your usage of the Service and communications sent over it for the purposes of ensuring your compliance with our CRA and our compliance with the law, and with any request or direction of a Regulatory Authority, an emergency services organisation or other competent authority. In this regard the terms of our privacy policy are also enforced. The privacy policy is located at www.eronka.com for your reference.

5                   QUALITY AND MAINTENANCE

Standard of Services

5.1                We aim to provide, but do not guarantee, continuous or fault-free services.

Customer Support

5.2               The relevant Service Description sets out our maintenance commitments that apply to the Service. Generally, We provide Customer Support between the hours of 9am – 5pm Monday to Friday (Eastern Standard Time) and excludes Saturday, Sunday and Public Holidays. Calls outside these hours are generally diverted to a messaging service for action during our normal operating hours, or escalation for some Service types. Various special support lines may have varying hours of support coverage. You acknowledge that any calls you make to our Customer Support Centre may be monitored or recorded for quality and/or training purposes and you consent to us monitoring or recording such calls. Please refer to our website for specific details.

6                   CHARGES

Pricing Schedule

6.1               The charges for the Service are set out in our Pricing Schedule (or in the terms of an applicable Special Offer under clauses 6.4 and 6.5) and any additional charges are set out in your Application.

6.2               You must pay all charges for the Service in accordance with any applicable provisions of the Service Description and the Pricing Schedule. Charges for the Service accrue from no later than the Service Commencement Date.

6.3               In order to provide some services to you, We enter into arrangements with other Suppliers. You acknowledge that our charges to you for the Service may vary as a result of a variation of a Supplier’s charges to us, or may pass on any additional charges a Supplier charges to us. We will give you reasonable notice of any proposed increase in charges or additional charges and you may cancel the Service without incurring any Break Fee or other charges (other than those incurred by you before cancellation), by giving notice to us within 42 days after the date We give you notice of the proposed variation.

 

Special Offers

6.4               From time to time We may make special offers (“Special Offers”) in connection with the Service. These Special Offers may be notified in a general advertisement or specifically offered to you and may be subject to certain conditions including:

a)                 a variation by us of the price or the terms of supply (including any Contract Term); or

b)                 A requirement that you acquire all relevant services for a minimum Contract Term and pay a Break Fee if you cancel the service before the end of that Minimum Contract Term.

6.5               You may accept a Special Offer in the way notified by us (which may include completing and submitting an Application). If you validly accept a Special Offer, the terms of that Special Offer will prevail to the extent of any inconsistency over those which would otherwise apply in our CRA, and will apply until the expiry of the Special Offer as notified by us. In all other respects, the terms and conditions of our CRA continue to apply. After the expiry of the Special Offer, the Special Offer pricing and terms will cease to be available and, unless We give you reasonable notice otherwise, the terms of our CRA will apply thereafter.

7                   BILLING AND PAYMENT

Bills

7.1               We may bill you:

a)                 for recurring or fixed charges, in advance;

b)                 for variable charges, in arrears (for example, excess traffic usage charges);

c)                 for installation or setup charges, before installation;

d)                 for any other charges set out in your Application or the Pricing Schedule, in accordance with the Pricing Schedule or the Service Description.

e)                 Using another invoice in the same month for billing alignment purposes where applicable

7.2               We will bill you in accordance with the billing period described in the Service Description or the Pricing Schedule. We can also issue an interim bill at any time.

7.3               Bills will be calculated by reference to data recorded, logged or received by us and our Suppliers and you acknowledge that in calculating charges We need only look at that data as recorded logged or received by us or our Suppliers.

7.4               We try to include all charges relating to a billing period on that bill. Where that does not happen, bills may include charges from previous billing periods except where such charges have been billed more than 190 days from the date the charge was incurred by you.

7.5               We may reissue any bill if any error is subsequently 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 us, We will refund the overpayment promptly after your request and after deduction of any other amounts due by you to us or a Related Eronka Entity.

7.6               Subject to clause 8 (Billing Disputes), you must pay each amount billed by the due date specified in the bill and in the manner specified in the Service Description or the Pricing Schedule.

 

Credit Card and Direct Credit Payments

7.7               Payment by Credit Card or Direct Credit is the default standard accepted method of payment.

 

Late or Dishonoured Payments

7.8               If you do not pay a bill:

a)                 By its due date, then We may charge you a late fee equal to 8%; and

b)                 In addition, you must pay our reasonable expenses and costs in recovering payment from you. We can also suspend or cancel the Service in accordance with clause 12.1(a).

7.9               If you pay a bill by cheque and the cheque is dishonoured, you may be required to pay an additional administration fee.

8                   BILLING DISPUTES

8.1                If you wish to dispute a charge in a bill you must do so in accordance with this Clause 8.

 

Bills Valid Unless Disputed

8.2               Except to the extent you raise a valid billing dispute in respect of a bill issued by us, you agree that the bill is valid and payable (and you must pay any undisputed amount included in the bill in accordance with clause 7.6)

 

Raising a Valid Billing Dispute

8.3               To raise a valid billing dispute, you must, within 12 months of the date of the bill, make a good faith request to us to investigate the specific charges or bill in dispute and provide details which show that a particular charge or bill is incorrect (for example missing details, wrong account details and wrong addresses, wrong service number, incorrect Service charges).

8.4               If you raise a valid billing dispute, then We will, within a reasonable timeframe, conduct investigations which are reasonably necessary and appropriate in the circumstances of the dispute. At the end of these investigations, if We reasonably determine that;

a)                 There is an error in the bill, We will issue a corrected invoice or adjustment note as appropriate and, if you have overpaid as a result of the billing error, credit your account with the overpayment or, if you have cancelled your Service with us, refund the overpayment promptly after deduction of any other amounts due by you to us or a Related Eronka Entity; or

b)                 The bill is correct, you must pay any outstanding amount (together with interest on that amount calculated in accordance with clause 7.9 from the original due date for payment) within 5 Business Days.

 

Claims to be made within 12 months

8.5               You may only make a claim or commence proceedings alleging that any charge or bill is incorrect, or you are entitled to a refund for overpayment, if you do so within 12 months of the date of the bill or overpayment.

 

9                   GST

Charges not expressed to be GST inclusive

9.1               If GST is imposed on any services We make to you under our CRA and the charges, or other consideration, payable for the services are not expressed to be inclusive of GST, you must pay to us an additional amount calculated by multiplying the value of that GST-exclusive consideration (without deduction or setoff) by the prevailing GST rate. We will issue a tax invoice to you for any Services on which GST is imposed. This clause applies if you ordinarily reside in a State or Territory within Australia.

 

Penalties and Interest

9.2               Where We become liable for any penalties or interest as a result of the late payment of GST due to your failure to comply with the terms of our CRA (including this clause 9) or your obligations under any applicable law, then you must pay to us an additional amount equal to those penalties and interest.

 

10                PERSONAL INFORMATION

Collection of your Personal Information

10.1             We may collect Personal Information about you and in accordance with our Privacy Policy for the purposes set out in Clause 10.3 from;

a)                 You directly, when you provide information by phone or in application forms, or when you submit your personal details through our web sites;

b)                 Our employees, agents, contractors or Suppliers;

c)                 A Related Eronka Entity;

d)                 A credit reporting agency, credit provider or fraud-checking agency;

e)                 Your representatives;

f)                  Other telecommunication and information service providers; and

g)                 Publicly available sources of information.

 

Disclosure of Your Personal Information

10.2             We may disclose Personal Information about you for the purposes set out in Clause 10.3 to:

a)                 Our employees, agents or contractors;

b)                 A Related Eronka Entity;

c)                 Suppliers who need access to the Personal Information to provide us with services to enable us to supply the Service to you;

d)                 A credit reporting agency, credit provider or fraud-checking agency;

e)                 Our professional advisers, including our accountants, auditors and lawyers;

f)                  Other telecommunication and information service providers (for example, if you obtain services from other providers, Telstra may need to disclose your personal information for billing purposes);

g)                 Your authorized representatives or your legal advisers (for example, when requested by you to do so); or

h)                 Government and Regulatory Authorities and other organizations, as required or authorized by law (for example, to the operator of the Integrated Public Number Database (IPND), which supplies information for telephone directories and to law enforcement agencies for purposes relating to the enforcement of criminal and other laws.

 

Use of your Personal Information

10.3             We may collect, use and disclose Personal Information about you for the purposes of:

a)                 Verifying your identity;

b)                 Assisting you to subscribe to our services and the services of Eronka Related Entities;

c)                 Providing the services you require from us and from Eronka Related Entities;

d)                 Administering and managing those services, including billing, account management and debt collection;

e)                 Conducting appropriate checks for credit-worthiness and for fraud;

f)                  Determining whether to provide to you (or to cease or limit the provision to you of) personal or commercial credit and the ongoing credit management of your account;

g)                 Researching and developing our services;

h)                 Business planning; and

i)                   Promoting and marketing our services, products and Special Offers to you and the products and services of Related Eronka Entities.

 

Access to Personal Information

10.4             If you are a natural person (i.e. an individual), you are entitled to access your Personal Information held by us, unless We are permitted or required by law to refuse such access.

 

Failure to Supply Personal Information

10.5             If you choose not to provide all or part of the Personal Information We request, We may not be able to provide you with the Services requested by you, or We may refuse to provide, or limit the provision to you of, any Service or personal or commercial credit requested by you.

10.6             By providing Personal Information to us and acquiring the Service, you acknowledge and consent to the collection, use and disclosure of your Personal Information as set out in this clause 10 and in accordance with our privacy policy. A copy of our Privacy Policy is available at our offices or on our website.

 

11                VARIATIONS TO THE SERVICE

Variations Requested by You

11.1             If you request a variation to the Service and we, in our discretion, make that variation, then:

a)                 Revised charges may apply to the varied Service as notified to you by us;

b)                 A plan change fee may apply to the varied Service as notified to you by us and as set out in the Pricing Schedule.

11.2             You acknowledge that if the Service is downgraded at your request in accordance with paragraph 13.1:

a)                 We will suffer loss in connection with the cost of Network components no longer required to supply the Service after the downgrade; and

b)                 A Downgrade Charge represents a genuine pre-estimate of the administrative costs We will incur as a result of the Downgrade and is not a penalty.

 

Variations made by Us

11.3             We may at any time vary the Service if reasonably required for technical operational or commercial reasons. If doing so is likely to have a significant detrimental impact on your use of the Service, then:

a)                 We will give you notice in writing of the intended variation at least 21 days before the date on which the variation takes effect; and

b)                 You may cancel the service without incurring any Break Fee (excluding those incurred before cancellation) by giving notice to us within 42 days after the date of the notice referred to in clause 11.3(a).

 

12                CANCELLING OR SUSPENDING THE SERVICE

Cancellation or Suspension by Us

12.1             We may, without liability, cancel the service:

a)                 If there is no Contract Term specified in your Application or the Service Description, at any time by giving 30 days notice to you;

b)                 If a Contract Term is specified in your Application or the Service Description, at any time after the end of the Contract Term by giving 30 days notice to you; or

c)                 If We reasonably determine that it is not technically or operationally feasible to supply the Service to you, at any time prior to the Service Commencement Date by giving you notice.

12.2             We may, without liability, immediately cancel, suspend or restrict the supply of the Service to you if:

a)                 You fail to pay any amount owing to us by the due date and you fail to pay that amount within 7 days after we give you notice requiring payment of that amount, except that we may not give you such notice in respect of an amount which is validly disputed in accordance with clause 8 until after we have completed the investigations referred to in clause 8);

b)                 You breach a material term (other than a breach which separately gives rise to rights under this clause 12.2) and that breach is not capable of remedy;

c)                 You breach a material term (other than a breach which separately gives rise to rights under this clause 12.2) and, where that breach is capable of remedy, you do not remedy that breach within 14 days after We give you notice requiring you to do so;

d)                 You become bankrupt or insolvent or appear likely to do so and we reasonably believe that it is unlikely that we will receive or retain amounts due and payable by you under our CRA;

e)                 You vacate the Premises or you die, or in the case of partnership, on dissolution or on the filing of an application to dissolve the partnership and We reasonably believe that it is unlikely that we will receive or retain amounts.

f)                  Due and payable by you under our CRA;

g)                 A Supplier terminates its agreement with us, or ceases to supply services to us, and We are not able to provide the Service using services of an alternate Supplier on terms reasonably acceptable to us.

h)                 There is an emergency;

i)                   Doing so is necessary to maintain, repair or restore any part of our Network or a Suppliers’ Network used to supply the Service, or for other operational reasons;

j)                   You breach clause 4 or clause 5.3 or your obligations relating to the use of the Service under the Service Description, or otherwise misuse the Service;

k)                 We reasonably suspect fraud or other illegal conduct by you or any other person in connection with the Service;

l)                   If We or a Related Eronka Entity is entitled to (or does) suspend, terminate or cancel any other service supplied to you, or is entitled to (or does) terminate any other agreement with you and we reasonably believe or suspect that you are a credit risk;

m)                We are required by law or in order to comply with an order, direction or request of a Regulatory Authority, an emergency services organization or any other authority;

n)                 The ACCC issues us with a Competition Notice in respect of the Service or we anticipate that it may do so;

o)                 Providing the Service to you may be illegal or we anticipate that it may become illegal;

p)                 A Force Majeure Event prevents the supply of the Service in accordance with our CRA for more than 14 days;

q)                 We reasonably believe a threat or risk exists to the security off the Service or the integrity of our Network or a Supplier’s Network;

r)                  There is excessive usage of the Service;

s)                 We are allowed to under another provision of our CRA; or

t)                  We reasonably consider you a credit risk. We consider that you are a credit risk when there is some doubt as to your ability to pay by the due date based on factors such as previous payment history and payment behavior (e.g. late payments, dishonoured payments or failure to pay), any previous advice from you about a potential inability or unwillingness to pay, where your usage is inconsistently high when compared with previous usage patterns or pending bankruptcy or insolvency.

12.3             If we suspend the Service under clause 12.2 then we may later cancel the Service for the same or a different reason.

 

Notice

12.4             We may exercise our rights under clause 12.2 immediately by giving you notice, but:

a)                 We will try to give you reasonable notice before exercising our rights under clause 12.2 by reason of the circumstances referred to in clauses 12.2(f), (h), (m) or (n);

b)                 We may be unable to give you notice in the event of an emergency; and

c)                 We will not be required to give you notice if we exercise our rights by reason of the circumstances referred to in clause 12.2(j)

 

Cancellation or Suspension by You

12.5             You may cancel the Service without liability;

a)                 If there is no Contract Term specified in the Service Description or your Application, at any time by giving us notice;

b)                 If a Contract Term is specified in the Service Description of your Application, at any time after the end of the Contract Term by giving us notice;

c)                 At any time by giving us notice if:

d)                 We breach a material term of our CRA and that breach is not capable of remedy; or

e)                 We breach a material term of our CRA and that breach is capable of remedy but we fail to remedy that breach within 14 days after you give us notice requiring us to do so;

12.6             You may cancel the Service before the end of the Contract Term by giving written notice to us but you may be required to pay a Break Fee in accordance with clause 13.3(b).

12.7             You may ask us to suspend the Service by giving notice to us. We will try to do so within a reasonable period if it is a Service for which suspension is an option. ADSL Services cannot be suspended.

12.8             If you request cancellation of the Service before or after the end of the contract term, you must;

a)                 Do so in writing, either via email or by completing a service cancellation form which is available upon request.

b)                 Provide 30 days notice and pay any outstanding charges up to and including the 30 day notice period.

 

13                CONSEQUENCES OF SUSPENSION AND CANCELLATION

Consequences of Suspension

13.1             If the Service is suspended in accordance with our CRA, then you will not have to pay any charges for the Service while it is suspended. However, if the Service is suspended:

a)                 By reason of the circumstances referred to in clauses 12.2(a), (b), (c), (d), (e), (i), (j), (k), (l), (q) or (r); or

b)                 For an insignificant period as a result of the circumstances referred to in clause 12.2(h), you must pay all charges (other than usage based charges) arising before, during and after suspension in accordance with our CRA.

13.2             If we reconnect a Service that has been cancelled, you may have to pay us a reconnection charge. You will not be required to pay a reconnection charge if the Service was cancelled pursuant to clause 12.5(c) or due to our fault or negligence.

 

Consequences of Cancellation

13.3             If the Service is cancelled in accordance with our CRA (other than in accordance with clause 12.5(b) or (c)):

a)                 Before the Service Commencement Date, we can charge you any costs incurred by us in preparing to provide it to you; and

b)                 During the Contract Term then you must pay to us the Break Fee.

13.4             You acknowledge and agree that if the Service is cancelled before the end of the Contract Term:

a)                 We will suffer loss in connection with the cost of Network Components no longer required to supply the Service after the cancellation;

b)                 The Break Fee represents a genuine administrative cost we will incur as a result of the early cancellation and is not a penalty;

13.5             If the Service is cancelled you still have to pay all charges incurred before the cancellation. We will refund any overpayment on your account and any money that you have paid in advance for the cancelled Service on a pro-rata basis to you. However, we can deduct from your refund any amount that you owe to us, such as charges you have incurred before cancellation or any applicable Break Fee.

13.6             In the event that there is credit remaining on your account at the time of cancellation, you will receive the credit via your listed credit card without being charged the Handling Fee. We reserve the right to charge any associated merchant fees, as they are a reflection of the costs incurred by us to prepare the refund for you. If a cheque or other method of refund is required a Handling Fee is payable.

13.7             On cancellation of the Service for any reason:

a)                 Unless our CRA expressly states otherwise, each person’s accrued rights and obligations are not affected;

b)                 You must immediately stop using the Service; and

c)                 The parts of our CRA which are by their nature intended to survive cancellation will continue unaffected, clause 7 (Billing and Payment), clause 8 (Billing Disputes), clause 9 (GST), clause 10 (Personal Information), this clause 13 (Consequences of Suspension and Cancellation), clause 14 (Our Liability to You), clause 15 (Your Liability to Us), clause 17 (Assignment and Subcontracting) and clause 18 (General).

 

14                OUR LIABILITY TO YOU

Interruption to the Service

14.1             We accept liability to you for Interruptions to the Service which are a result of our fault or negligence, to the extent of a refund or rebate for the period of the interruption. Full details can be found on the relevant Service Level Agreement for each Service.

 

Quality of Service

14.2             Certain laws imply terms into contracts for the supply of goods or services that cannot be excluded (e.g. that services are provided with due care and skill and goods are reasonably fit for their purpose and of a certain quality). If those terms are implied into our CRA and we breach them, we accept liability for the breach. Otherwise, we exclude all conditions and warranties implied into our CRA and limit our liability for any non-excludable conditions and warranties to re-supplying, repairing or replacing the relevant goods or services where the goods or services are not of a kind ordinarily acquired for personal, domestic or household use or consumption and where it is fair and reasonable to do so.

 

Customer Service Guarantee

14.3             You may also have certain rights and remedies under the Customer Service Guarantee, which establishes minimum connection and fault repair times and entitles you to specified amounts of damages if they are breached. We accept liability to you in accordance with, and subject to, the Customer Service Guarantee.

 

Suspending the Service

14.4             We exclude any liability to you (whether based in contract, tort (including negligence), statute or otherwise) for suspending the Servicer where we do so in accordance with our CRA.

 

Consequential Loss

14.5             We exclude any liability to you for any Consequential Loss suffered or incurred by you in connection with the supply or Interruption of any goods or services (including the Service) or with our CRA (whether based in contract, tort (including negligence), statute or otherwise).

 

Force Majeure Event

14.6             We are not liable for failing to comply with any of our obligations under our CRA if a Force Majeure Event occurs which prevents us from performing those obligations.

 

When We are Not Liable to You

14.7             We are only liable to you in the cases set out in this clause 14. Otherwise we exclude any liability we might otherwise have to you in connection with our CRA or the Service to the extent that such liability is not expressly accepted by us under this clause 16.

 

15                YOUR LIABILITY TO US

 

Joint Customers

15.1             If you and one or more others are the customer for a Service, each of you is jointly and individually responsible for all charges and other obligations relating to that Service.

15.2             You indemnify us against (and must pay us for) any loss, damage, cost or liability (including reasonable legal costs) we suffer or incur relating to the use (or attempted use) of the Service

15.3             You must ensure that any person who you allow to use the Service, or to whom you ask us to supply the Service directly, complies with our CRA as if they were you.

 

16                PUBLIC ADDRESSING IDENTIFIERS

16.1             The Service may use identifiers such as an IP address or domain name (“Public Addressing Identifiers”). You must comply with the requirements of any Regulatory Authority or other body which administers Public Addressing Identifiers.

16.2             You acknowledge and agree that:

a)                 We do not control the allocation of Public Addressing Identifiers;

b)                 We are not liable to you if we are required to change, withdraw, suspend or reassign any Public Addressing Identifiers as a result of any direction given by a Regulatory Authority or other body which administers Public Addressing Identifiers; and

c)                 On cancellation of the Service, your right to use a Public Addressing Identifier may cease.

 

17                ASSIGNMENT AND SUBCONTRACTING

 

17.1             You can assign or transfer legal responsibility for the Service if you obtain our prior written consent.

17.2             To the extent they are assignable; we may at any time assign:

a)                 Our rights under our CRA to any person;

b)                 Assign our obligations under our CRA to a Related Eronka Entity that is able to perform those obligations and, if that Related Eronka Entity undertakes to perform those obligations, we will be released from any further performance with effect from the date of transfer.

17.3             We may perform any of our obligations under our CRA by arranging for them to be performed by another person, including a Supplier or a Related Eronka Entity.

 

18                GENERAL

Confidentiality

18.1             You and we each agree to keep confidential the other’s Confidential Information. You and we will not use or disclose the other’s Confidential Information for any purpose, other than:

a)                 To the extent necessary to perform obligations or exercise rights under our CRA;

b)                 To the extent disclosure is required by law or the listing rules or a stock exchange or a direction by a Regulatory Authority; or

c)                 To professional advisors in connection with our CRA.

18.2             For clarity, we may refer to you as a customer or ours in our press releases, or in our marketing sales or financial material or reports.

Notice

18.3             A notice, approval or consent to be issued under the CRA must be in writing, except for variations by us, for which notice can be given in accordance with the Telecommunications Act. In the absence of evidence to the contrary, such notice, approval or consent will be taken to be received:

a)                 If left at the address of the addressee, at the time it was left;

b)                 If sent by ordinary post, on the third day after posting;

c)                 If sent by express post, on the next day; and

d)                 If sent by facsimile or electronic transmission, at the time when the machine on which the notice is sent, reports in writing that the notice has been transmitted satisfactorily.

Waiver

18.4             If we have a right arising out of a breach by you of our CRA and we do not exercise that right, we do not waive that right, unless we do so in writing signed by us, or our right to insist on performance of that or any other obligation at any other time.

 

Severance

18.5             If a provision of CRA is void, voidable or unenforceable, it will be severed and the remainder of our CRA will not be affected.

 

Governing Law

18.6             Our CRA is governed by the laws of the Commonwealth of Australia and the laws of the state or territory in which you ordinarily reside. You and We agree to submit to the exclusive jurisdiction of the courts of the Commonwealth, and its states and territories.

 

19                DEFINITION AND INTERPRETATION

 

In Our CRA:

Application has the meaning set out in clause 2.4

Break Fee means the relevant cancellation fee or termination charge (if any) calculated in accordance with the Pricing Schedule, a Service Description or any appendix to the Service Description.

Confidential Information means of a person means all information of that person (“Owner”) of a confidential nature, which another person (“Recipient”) first becomes aware, whether before or after the date of the original Application, either through disclosure by the Owner to the Recipient or otherwise through the Recipient’s involvement with the Owner. Confidential Information does not include information:

a)                 The Recipient creates (whether alone or jointly with any person) independently of the Owner’s Confidential Information;

b)                 That is public knowledge (otherwise than as a result of a breach of confidentiality by the Recipient or any person to whom it has disclosed the information); or

c)                 Obtained without restriction as to further disclosure from a source other than the Owner through no breach of confidentiality by that source. In respect of us, “Owner” and “Recipient” includes us and each Related Eronka Entity.

Consequential Loss means:

a)                 Loss of revenue, loss of profits, loss of anticipated savings or business, pure economic loss, loss of data, loss of opportunity or expectation loss and any other form of consequential, special, indirect, punitive or exemplary loss or damages; and

b)                 Any penalties or fines imposed by a Regulatory Authority.

Contract Term means the minimum contract term specified in your Application, which commences on the Service Commencement Date, or, if no contract term is specified in the Application or our CRA, then there will be no minimum contract term.

Credit Information means:

a)                 Personal identifying particulars including your name, gender, current address (and you previous two addresses), date of birth, telephone number, mobile number, banking details, credit card details, name of employer and drivers licence number;

b)                 Your application for credit or commercial credit – the fact that you have applied for credit and the amount;

c)                 The fact that we are a current credit provider to you and any credit limit on your account;

d)                 Payments which are overdue by more than 60 days and/or for which debt collection action has started;

e)                 Advice that your payments are no longer overdue in respect of any default that has been listed;

f)                  The fact that, in our opinion, you have committed a serious credit infringement (that is, acted fraudulently or shown an intention not to comply with your credit obligations);

g)                 Information about any payments, including cheques and credit cards which have been dishonoured;

h)                 Court judgments or bankruptcy orders made against you; and

i)                   The fact that we have ceased providing the Service to you (and the timing of that cessation of service)

 

Credit Rating means information about your credit worthiness, credit standing, credit history or credit capacity that credit providers may give to each other under the Privacy Act 1998 (Cth)

 

Customer Service Guarantee means any performance standards issued under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth).

Downgrade means a variation to the Service which reduces the capacity, use or utility of that Service and results in a reduction in the Regular Fees payable for the Service.

Downgrade Charge means the relevant downgrade charge (if any) specified in the Service Description.

Excluded Event means:

a)                 A breach of our CRA by you;

b)                 A Force Majeure Event;

c)                 A negligent or fraudulent act or omission of your or any of your employees, agents or contractors; or

d)                 A failure of any of Your Equipment

 

Force Majeure Event means any event outside that person’s reasonable control, and includes a failure or fluctuation in any electrical power supply, failure of air conditioning or humidity control, electromagnetic interference, cable cut, fire, storm, flood, earthquake, accident, war, labour dispute (other than a dispute solely between that person and its own staff or staff under its control), materials or labour shortage, the change or introduction of any law or regulation (including the Telecommunications Legislation) or an act of omission, failure or delay of any third party or any failure of any equipment owned or operated by any third party (including any Regulatory Authority or Supplier).

Handling Fee means a fee incurred by us to provide you with a refund.

Insolvent includes having a receiver, manager, administrator, provisional liquidator or liquidator appointed to you, you entering into any scheme of arrangement with your creditors, a mortgagee entering possession or disposing of the whole or any part of your assets or business.

Interruption in the supply of goods or a service means a delay in supplying, a failure to supply or an error or defect in the supply of, those goods or that service.

Material Terms means those terms and conditions We provided to you.

Network means a telecommunications network, equipment, facilities or cabling.

Personal Information means information or opinion about you from which your identity is apparent or can reasonably be ascertained and includes your name, current and previous addresses, service number, date of birth, email address, bank account or credit card details, occupation, driver’s license number and your Credit Information and Credit Rating.

Regulatory Authority means the Australian Communications and Media Authority, the Australian Competition and Consumer Commission, the Australian Communications Industry Form Limited, the Telecommunications Industry Ombudsman or any other government or statutory body or authority.

Related Eronka Entity means an entity that is related to Eronka Pty Ltd (ABN 56 119 746 815), in any of the ways specified in section 50 of the Corporations Act 2001 (Cth).

Service means the service requested by you in your Application and described in the relevant Service Description and Pricing Schedule, and any related goods and ancillary services provided to you by us in connection with that service.

Service Commencement Date means the date on which we notify you that the Service is ready for use.

Service Description means our standard service description describing the Service and setting out specific terms and conditions for the Service.

Special Offer has the meaning set out in clause 6.5

Supplier means any supplier of goods or services (including interconnection services) which may be used directly or indirectly by us to supply the Service.

Telecommunications Act means the Telecommunications Act 1997 (Cth).

Telecommunications Legislation means the Telecommunications Act 1997 (Cth), the Telecommunications (Consumer Protection and Service Standards) Act 1999 (Cth) and Part XIB, Part XIC and related provisions of the Trade Practices Act 1974 (Cth), each as amended or replaced from time to time.

You means the customer who makes the Application and where two or more persons have applied, means those persons individually and every two or more of them jointly (and your will have a corresponding meaning).

We, us means Eronka Pty Ltd (ABN 56 119 746 815) or any Related Eronka Entity which supplies the Service to you (and our will have a corresponding meaning). Unless the context otherwise requires:

a)                 Undefined words and expressions have the same meaning as in the Telecommunication Legislation.

b)                 The expressions “we”, “us”, “our”, “you” or “your” will include their respective successors and permitted assigns and novatees.

c)                 A reference to a person includes a reference to a person, firm, corporation or other legal entity.

d)                 A term which is defined in any part of our CRA has the same meaning in every other part of our CRA.

e)                 The singular includes the plural and vice versa.

f)                  Different grammatical forms of the same word have the corresponding meaning.

g)                 A reference to a clause is to a clause in the General Terms, unless otherwise stated.

h)                 Examples or words of inclusion are illustrative only and do not limit the generality of the relevant subject.

i)                   A “reasonable” notice period means a period which is reasonable in the circumstances taking into account technical, operational and commercial issues.