1. DEFINITIONS
“4G Failover Service, SDWAN Service, NBN Failover Service” refers to data services provided for the express purpose of providing connectivity in the event of the failure of a specific fixed line service.
“Activa”, “Us” or “Our” refers to Activa Communications, a registered trading name of Accdin Pty Ltd (ABN 71 093 057 366).
“Agreement” means the Agreement between the Customer and us which comprises the Service Order Form and these Terms of Service.
“Cooling Off Period” means a cooling off period required by any applicable State or Territory legislation.
“Customer” refers to all persons, companies, or other entities identified on the Service Order Form as the Customer.
“Customers Premises” means the building in and to which Provided Equipment and Service will be provided, and the land on which that building sits.
“Customer Provided Equipment” is that provided by the Customer to facilitate the Service as advised by us. Such equipment might include a personal computer, set top box, data or network terminating equipment.
“Data Service” means the connectivity service we provide to the Customer to support your connection to the Internet, or to other specified network services.
“Establishment Fees” means the fees that apply when a Service is initially connected, including fees for equipment that we provide to the Customer, once-only charges related to the configuration of the Service, and once only charges related to the porting of telephone numbers to the Service, as listed in the Service Order Form.
“Fees” means Monthly Fees, Usage Fees, and Establishment Fees as defined in the agreement.
“GST” means the tax imposed or to be imposed by the A New Tax System (Goods and Services Tax) Act 1999 and the related imposition Acts of the Commonwealth.
“Initial Term” commences on the day that we first provide the Service to the Customer, or the date of signing of the Service Order Form, whichever is later, and continues thereafter for the number of months shown on the first page of the Service Order Form.
“Installation” means the provision of the Provided Equipment and connection to the Service at the Customer’s Premises.
“Maintenance” means the ongoing support and operation of the Service during the course of the Term.
“Monthly Fees” means the fixed monthly fee for the Service as set out in the Service Order Form.
“Network” means the equipment, services and information that we use to deliver the Service to the Customer.
“Numbers”, “DID” or “Direct In-dial Numbers” refers to telephone numbers that are assigned to Voice Services and that may designate a Geographical Area.
“Provided Equipment” comprises the network termination unit and ancillary equipment to be provided by us to the Customer.
“Service Order Form” means the form completed and signed by the Customer to which these Terms of Service apply.
“Service” means provision of the Data Services or Voice Services specified in the Sales Order Form.
“Service Provider” means a person who provides or is considering providing services in connection with the Service or in conjunction with us or any related entity, but does not include us as any related entity.
“Speed” means a description of the download and or upload speed of the relevant service, typically expressed in the format X/Y, where X is the download speed in Megabits per second and Y is the upload speed in Megabits per second.
“Term” means the Initial Term as extended by each month the Customer continues to use the Service after the ending of the Initial Term.
“Usage Fees” means the fees that apply to your use of the Service including voice call charges, excess data transfer charges, and any such charges set out in this Agreement or in the Service Order Form.
“Voice Service” means the hosted IP telephony services we provide to the Customer to facilitate the making and receiving of telephone calls, and related functions.
“You”, or “Your” refers to the Customer.

2. THE SERVICE
2.1 Activa provides two categories of service, being Data Services and Voice Services.
2.1.1 Data Services
In the case of Data Services, the Customer acknowledges and agrees that:
a) any IP Addresses assigned to you by Activa remain the sole property of Activa, may be changed or revoked by Activa at any time at our discretion and are not transferable; and
b) the quantity of Data Transferred by a Service is measured as the total number of bytes passing from the Internet through to your service. All data quantities are measured in bytes, with 1 kByte = 1000 Bytes, 1 Mbyte = 1,000,000 Bytes, and 1 Gbyte = 1,000,000,000 Bytes.

2.1.2 Voice Services
In the case of a Voice Service, the Customer acknowledges and agrees that supply of the Voice Service:
a) May provide for a specific number of concurrent calls per service, and include a variable number of telephone numbers, also called Direct In-dial Numbers, that are attached to the service. At least one telephone number must be included as the Geographic Number for the listed main service location, known as a Directory Number.
b) Is made purely as a business communications platform that provides the opportunity for business productivity improvements and cost savings. It is not intended for domestic or home use, or to replace all other forms of communication at your office locations. We recommend that you retain access to at least one other form of communications service at each of your office locations such as a single fixed line service or a mobile communications service;
c) Relies on a number of external factors that may be outside of our control, including supply of electricity, working Internet communications at your office location and our hosting environment, and the equipment and infrastructure at our hosting environment, and that we cannot guarantee that those external factors will be working correctly at all times;
d) Is not intended to be used to make emergency calls to Emergency Services, and that if you do call Emergency Service using the service you may be required to provide additional information to the operator such as your address, fixed line telephone service number and your full name, and that we do not guarantee that the service will be available at all times to be used for that purpose.
e) Does not allow us to distinguish between calls that are made by an authorised or unauthorised person. Any person who the Customer allows to make telephone calls using the Service is deemed to be authorised by the Customer to make those calls and the Customer will be responsible for all charges incurred by such person.
2.1.3 Voice Service Numbers
2.1.3.1 Issue of Numbers (Geographical Based Numbers)
Activa may issue a Number to the Service and vary that Number in accordance with any national regulatory policy on numbering made pursuant to the Telecommunications Act.
The selection, issuing and use of Numbers is governed by the Authority’s numbering plan and directions relating to numbering, and you agree that you must accept and comply with the requirements of the Authority or any other body from time to time that administers or oversees the allocation of Numbers.
Activa may be required by law to withdraw, suspend or reassign a Number assigned to you, and Activa will not be liable to you for any loss or damage incurred or sustained by you if Activa is so required.

2.1.3.2 Local number portability (“LNP”)
You acknowledge that:
Activa may not be able to provide local number portability for existing number(s), which you use for telecommunication services obtained from other Carriers or Carriage Service Providers. Activa provides no guarantee that we can port your telephone number(s) from your current Service Provider. Your current Service Provider may reject this port request if the information you provide is incorrect or does not match the data held by them. In this case you authorise Activa to correct the information and resubmit the request to port your telephone number or dispute the rejection by your current Service Provider or to dispute the rejection by your current Service Provider. A porting request may also be rejected for other reasons as stated in the LNP Industry Code.
Some numbers allocated by Activa may not be able to be ported out from Activa. Activa is not obliged to procure for and/or provide to you any particular number allocated or assigned to you by another Carrier or Carriage Service Provider. Activa will not be liable to you for any loss or damage incurred or sustained by you if such number is not, or is no longer, available or any outage caused by LNP.
You must not deactivate your service with the other service provider, until after the number is ported to Activa.
You can only withdraw your request for Number Portability before the Electronic Cut-over request is received. You will be responsible for any costs involved with relation to the Emergency Porting back of a number to the existing service the number(s) belonged to.
Activa does not warrant that the telephone number(s) will be ported within any specified timeframe. Porting Hours of Operation are 9am to 5pm AEST/AEDST Monday to Friday, excluding National Public Holidays. Cutover can only be initiated at least 3 business days after the porting Notification Advice is sent by Activa to your current Service Provider. If a port request is rejected and needs to be resubmitted, cutover cannot take place for at least another 3 business days after the request is resubmitted.
Only your telephone number(s) will be transferred to Activa. This may result in the loss of any Value Added Services that are associated with the service provided by your existing Service Provider (eg Voicemail).
If you wish to port your telephone number(s) from Activa to another Service Provider, then you must contact the other Provider.
Activa reserves the right to charge a fee for porting your telephone number(s) to or from Activa.
Local Number Portability (LNP) does not guarantee you can keep your telephone number(s) if you move to a different geographic location or Standard Zone Unit as defined within the Telecommunications Act.
By porting telephone number(s) to Activa, the service associated with that telephone number is disconnected from the existing service provider’s network and may result in finalisation of the account for that service.
By porting the telephone number(s) to Activa, any DSL/Spectrum Sharing service associated with the telephone number(s) will be disconnected and may result in finalisation of the DSL Spectrum Sharing account for that service;
You may have outstanding contractual obligations and costs owed to your current Service Provider, which may include early termination fees and porting fees. Activa is not liable for any such costs.

2.1.3.3 Numbering and Call Charges
You acknowledge that:
A local call charge will only apply to other calls made to the area where your geographic number is located or the adjacent call zone.
People who call you from outside the SZA (Standard Zone Area) of your Number may be charged a timed call from their Telecommunications Carrier. The Standard Zone Area is the Geographic location of your number and where callers from the same zone area can call you for a local call charge.
When you move outside the geographic area or the SZA (Standard Zone Area) of where your virtual Number is located, we may be required to change your virtual number to the area where your service is now located.

2.1.3.4 Caller line identification
You acknowledge that when:
a call is made using a Service, the CLI may automatically be sent to the telecommunications equipment of the person receiving the call; and
a call is received using a Service, the CLI of the calling party may be displayed or recorded by the Equipment, unless CLI is barred by the person making the call. You must comply, and use reasonable endeavours to ensure that any third parties using the Service comply with applicable privacy and other guidelines as well as industry codes of practice on the use and capture of CLI.
The configuration of your telephone system will determine the CLI that will be presented from within the range of numbers we provide with your service.

2.1.3.5 Integrated Public Number Database
You acknowledge that Activa, is obliged by law to supply specified Customer Information with respect to any person who is allocated a Number under clause 1.1 for the purposes of the Integrated Public Number Database. The information held in this database may only be provided for an approved purpose to approved organizations such as directory information organisations or the assistance of emergency service or law enforcement organizations. If you require that your Customer Information that appears on that database be altered, you must request such alteration in writing.

2.1.4 13/1300/1800 SERVICES
The Voice Service can include the provision of 13/1300/1800 number service as a flexible inbound calling service. Business customers can use these services to enable their clients to call them at a subsidised call charge using certain 13, 1300, 1800 prefixed numbers. Each Freephone Service has a single service number that is ten digits (of the form 1800 XXX XXX). Each Local Rate Service has a single number that is either ten digits (of the form 1300 xxx xxx) or six digits in length (of the form 13 XX XX). Calls to a Freephone and Local Rate Service Number(s) can be made from most telephone services in Australia and are routed to customer nominated numbers/sites within Australia.

The Customer acknowledges and agrees that:
You have no right, title or interest in any number provided as part of the Service. However, where Activa ceases to be your Authorised Agent, Activa agrees to transfer your Service to another provider.

2.2 Subject to this Agreement we will use reasonable skill and care in providing the Customer with the Service. The Customer acknowledges that the Service is provided without warranty that it is continuous or fault-free. Subject to law, we are not liable for any loss or disappointment the Customer may suffer as a result of any faults or interruptions in the Service other than as specified in the Terms of Service.

2.3 The Customer must do the following in relation to the Customer’s Service: (a) adopt appropriate measures to ensure the security of the Customer’s account information password and the Customer’s data; and (b) advise us in a timely manner if the Customer has reason to suspect that the Service is being used contrary to the applicable Terms of Service.

2.4 In the case of the Service:
a) the Customer acknowledges that due to the carrying out of engineering work, there may be a minor disruption to the Customer’s standard telephone service during Service provisioning.
b) the Customer acknowledges that certain incompatible products may not be available to the Customer.

2.5 We are not liable to provide the Service or the Provided Equipment if the necessary equipment and facilities are not available for the Customer’s Premises.

2.6 If the Customer acquires other services from us or a Service Provider for use in conjunction with the Service, the Customer agrees to comply with the terms of such services including of any relevant software licences supplied or granted in connection with those services.

3. ACCEPTABLE USE POLICY
3.1 The Customer agrees to ensure that their use of the Service, and the use of any person they permit to use the Service, will be in compliance with this clause 3 of the Terms of Service.

3.2 (Responsible use) You are responsible for your use of the Service and systems you access through the Service. If you act recklessly or irresponsibly in using your Service or your actions endanger any person or the integrity or security of our systems or equipment, your access may be restricted, suspended or terminated, without prior notice.
In particular, you agree that you will not use, attempt to use or allow your Service to be used to:
a) store, send or distribute any content or material which is restricted, prohibited or otherwise unlawful under any applicable Commonwealth, State or Territory law, or which is likely to be offensive or obscene to a reasonable person;
b) store, send or distribute confidential information, copyright material or other content which is subject to third party intellectual property rights, unless you have a lawful right to do so;
c) do anything, including store, send or distribute material which defames, harasses, threatens, abuses, menaces, offends, violates the privacy of, or incites violence or hatred against, any person or class of persons, or which could give rise to civil or criminal proceedings;
d) do any other act or thing which is illegal, fraudulent or otherwise prohibited under any applicable Commonwealth, State or Territory law or which is in breach of any code, standard or content requirement of any other competent authority;
e) do anything, including store, send or distribute material, which interferes with other users or restricts or hinders any person from accessing, using or enjoying the Internet, our Services, Network or systems;
f) forge header information, email source address or other user information;
g) access, monitor or use any data, systems or networks, including another person’s private information, without authority or attempt to probe, scan or test the vulnerability of any data, system or network;
h) compromise the security or integrity of any network or system including our Network;
i) access, download, store, send or distribute any viruses or other harmful programs or material;
j) send or distribute unsolicited advertising, bulk electronic messages or otherwise breach your spam obligations set out in clause 3.4, or overload any network or system including our Network and systems;
k) use another person’s name, username or password or otherwise attempt to gain access to the account of any other Customer;
l) tamper with, hinder the operation of or make unauthorised modifications to any network or system; or
m) authorise, aid, abet, encourage or incite any other person to do or attempt to do any of the above acts.

3.3 (Excessive or unreasonable use) You must use your Service in accordance with any download or capacity limits stated in the specific plan that you subscribe to for the use of that Service, and regardless of those limits your use of the Service must not be unreasonable, as defined below.
a) It is unreasonable use where your use of the service is reasonably considered by us to:
i. be fraudulent;
ii. involve a non-ordinary use;
iii. cause significant network congestion, disruption or otherwise adversely affect our network, a supplier’s network; or
iv. adversely affect another person’s use of or access to Services, our network or a supplier’s network.
b) Without limitation:
i. Fraudulent use includes resupplying or reselling a Service without Activa’s written consent so that someone else may access, use or commercially exploit an Service.
ii. Non-ordinary use includes circumstances where You make or receive calls and/or make use of the internet on Our network in any non-ordinary manner without obtaining Our written consent first, which consent We may give or withhold, or make subject to conditions, in Our discretion.

c) Use in a non-ordinary manner includes:
i. in the case of fixed line services:
a. usage for running a telemarketing business or call centre; and
b. usage with handsets, auto-dialer devices or software or other equipment that have not been approved by Us for use on Our Network;
c. usage where more than five numbers, or more than one number range, are attached to a TruVoice Unlimited plan;
ii. in the case of 4G failover services:
a. usage at any time other than when a fixed line or other service is not functioning correctly; or
b. usage in any twenty-four hour period that exceeds the average daily data transfer usage of the fixed line service that the 4G failover service is intended to act as a backup service for over the preceding thirty days;
iii. in the case of mobile services, any use of a SIM in a SIM box, GSM gateway or any device that is used to automatically re-route calls;
iv. usage to menace, harass or injure any person or damage anything;
v. usage in connection with an infringement or committing an offense against any law, standard or code; or
vi. any other activity which would not be reasonably regarded as ordinary use in relation to the Service.
If we reasonably consider your use of the Service is unreasonable, we may, at our sole discretion, without telling you before we do so:
a) suspend or limit the Service (or any feature of it) in accordance with our Agreement with you; and/or
b) terminate the Service in accordance with our Agreement with You.

3.4 (Spam) In these Terms of Service “Spam” includes one or more unsolicited commercial electronic messages to which the Spam Act 2003 applies, and derivations of the word “Spam” have corresponding meanings.
a) Codes of Practice
The Internet Industry Codes of Practice registered with the Australian Communications and Media Authority (“ACMA”) set out how internet service providers and email service providers must address the sources of Spam within their own networks. They also require internet service providers and email service providers to give end-users information about how to deal with Spam, and informed choice about their filtering options.
b) Suspension or Termination
This Policy prohibits you from using your Service to send Spam. If you breach this prohibition, we may suspend or terminate your Service.
c) Reducing Spam
You can reduce the amount of Spam you receive if you:
• do not open emails from dubious sources;
• do not reply to Spam or click on links, including ‘unsubscribe’ facilities, in Spam;
• do not accept Spam-advertised offers;
• block incoming mail from known Spammers;
• do not post your email address on publicly available sites or directories. If you must do so, look for options, such as tick boxes, that allow you to opt out of receiving further offers or information.;
• do not disclose your personal information to any online organisation unless they agree (in their terms and conditions or privacy policy) not to pass your information on to other parties;
• use separate email addresses for different purposes, such as a personal email address for friends and family and a business email address for work;
• install a Spam filter on your computer to filter or block Spam. Information on the availability of anti-Spam software for end-users is available at the Internet Industry Association (IIA) website.
• report any Spam you receive to us or the ACMA (see “Complaints” below); and
• visit [the ACMA website] or [‘Fight SPAM on the Internet’ website for more information on ways to reduce the volume of Spam you receive, including how to:
• reduce Spam if you operate a website; and
• avoid becoming an accidental Spammer.

d) Your Spam Obligations
You agree that you will use your Service in compliance with the Spam Act 2003 and will not engage in practices which would result in a breach of the Act. In particular, you agree that you will not use, attempt to use or allow your Service to be used to:
• send, allow to be sent, or assist in the sending of Spam;
• use or distribute any software designed to harvest email addresses;
• host any device or service that allows email to be sent between third parties not under your authority or control; or
• otherwise breach the Spam Act 2003 or the Spam Regulations 2004 of the Commonwealth, (your “Spam Obligations”).
You agree to use your reasonable best endeavours to secure any device or network within your control against being used in breach of your Spam Obligations by third parties, including where appropriate:
• the installation and maintenance of antivirus software;
• the installation and maintenance of firewall software; and
• the application of operating system and application software patches and updates.
We may scan any IP address ranges allocated to you for your use with your Service in order to detect the presence of open or otherwise misconfigured mail and proxy servers. If we detect open or misconfigured mail or proxy servers we may suspend or terminate your Service. The circumstances in which we may do so are set out in section 12.
e) All internet and email service providers are required by the Internet Industry Code of Practice to maintain an “abuse@” email address (or other email address as notified by the service provider) to allow end users to report Spam. If you think you have been sent Spam by an Activa Communications subscriber, you may report it by email to abuse@activacomms.com.au. If you think you have been sent Spam by a subscriber of another internet or email service provider, you may report it by emailing that service provider at their “abuse@” email address or other email address as notified by the service provider for that purpose.
• You can report or make a complaint about Spam you have received by contacting the ACMA by filling out an online complaint form at acma.gov.au or via the ACMA Spam Reporting System SpamMatters.
• You may also make complaints to other bodies about Spam where the content is in some other way offensive or contrary to law. For example, you may complain to the ACMA about Spam that contains content you believe is offensive or relates to online gambling.
• You can report a Spam message that contains fraudulent or misleading and deceptive content (for example, email scams) to the Australian Competition and Consumer Commission (ACCC) via the ACCC website by phoning 1300 302 502 (business hours, Monday to Friday).
• The Australian Securities and Investment Commission (ASIC) also deals with certain complaints about the contents of Spam messages, particularly with regard to fraudulent conduct by Australian businesses. The ASIC website outlines the types of complaints they deal with, and has an online complaint form: www.asic.gov.au(click on ‘Complaining About Companies or People’).
• If you are concerned that your personal information has been misused to send you Spam, the Federal Privacy Commissioner recommends that you complain to the organisation first, especially if you know how to contact it and have had dealings with it in the past about other goods or services. If the matter is not resolved adequately, you can visit the Federal Privacy Commissioner’s website for details on how to make a complaint.

3.5 (Copyright) It is your responsibility to ensure that you do not infringe the intellectual property rights of any person in relation to any material that you access or download from the Internet and copy, store, send or distribute using your Service. You must not use your Service to copy, adapt, reproduce, distribute or otherwise make available to other persons any content or material (including but not limited to music files in any format) which is subject to copyright or do any other acts in relation to such copyright material which would infringe the exclusive rights of the copyright owner under the Copyright Act 1968 (Cth) or any other applicable laws. You acknowledge and agree that we have the right to immediately cease hosting and to remove from our Network or systems any content upon receiving a complaint or allegation that the material infringes copyright or any other intellectual property rights of any person.

3.6 (Content) You are responsible for determining the content and information you choose to access on the Internet when using your Service. It is your responsibility to take all steps you consider necessary (including the use of filtering programs) to prevent access to offensive or obscene content on the Internet by children or minors who you allow to use your Service. You may obtain further information on content filtering products at the Internet Industry Association (IIA) website.
You must not use or attempt to use your Service to make inappropriate contact with children or minors who are not otherwise know to you. You are responsible for any content you store, send or distribute on or via our Network and systems including, but not limited to, content you place or post on web pages, email, chat or discussion forums, bulletin boards, instant messaging, SMS and Usenet news. You must not use such services to send or distribute any content which is prohibited, deemed obscene or offensive or otherwise unlawful under any applicable Commonwealth, State or Territory law, including to send or distribute classes of restricted content to children or minors if that is prohibited or an offence under such laws. Your failure to comply with these requirements may lead to immediate suspension or termination of your Service without notice. If we have reason to believe you have used your Service to access child pornography or child abuse material, we are required by law to refer the matter to the Australian Federal Police.

4. PAYMENT OF ACCOUNTS AND CHARGES
4.1 The Customer must pay the Monthly Fees during the Term and other fees set out in our Service Order Form and these Terms of Service from the date on which we commerce supplying the Service to the Customer. The Monthly Fee must be paid by any means of payment that we notify you is acceptable to us. The Customer must pay us any other applicable charges as set out in the Sales Order Form or these Terms of Service upon our request including any installation charge and charges for changing the Customer’s Service where those changes are requested by the Customer and any costs of labour or parts in maintaining the Provided Equipment after the expiry of the Initial Term.

4.2 We will apply our best endeavours to issue an invoice on the 1st day of each month that correctly identifies all Monthly Fees, Establishment Fees, Usage Fees and any other fees incurred in the relevant period. As we may calculate fees based on billing information generated by third parties, any delay by such third parties in providing the relevant billing information which causes a delay by us in issuing an invoice for the Service does not in any way affect our right to payment of such invoice.

4.3 Subject to clause 13.5, the Customer may change the Customer’s nominated Service as set out in the Sales Order Form by contacting or calling us. The change will become effective as soon as practicable.

4.3 Migrating to another Service does not shorten the Initial Term or Term, or terminate the Agreement. The Agreement continues to apply for the remainder of the Initial Term or Term.

4.4 If the Customer varies the number of connected Services, the Monthly Fee will be prorated from the date those Services are made available to the Customer or withdrawn.

4.5 We will be taken to have commenced supplying the Service to the Customer from the date of activation of the Service.

4.6 The charges listed in the Service Order Form and/or the Fees may not include all taxes. The Customer must pay us when we ask the Customer for it all stamp and other duties, fees, taxes (including any Goods and Services Tax) and charges payable on:
(a) the Customers purchase of any hardware in relation to the Service; and (b) this Agreement and the performance of this Agreement and (c) any payment, receipt or other transaction arising out of this Agreement.

4.7 Without limiting clause 4.6, if GST is imposed on any supply made by us pursuant to this Agreement, the Customer must pay to us, in addition to any consideration payable, or to be provided by the Customer under this Agreement for such supply, an additional amount for the supply calculated by multiplying the prevailing GST rate by the consideration for the relevant supply payable, or to be provided (without any deduction or set-off) by the Customer under any other clause in this Agreement. Any amount payable by the Customer under this clause is payable on demand by us whether such demand is by means of an invoice or otherwise.

4.8 We may terminate by giving 14 days’ notice the Customer’s Service and the Customers software licenses if any charges remain outstanding for 30 days.

4.9 We may engage the services of a collection agency and/or law firm to recover charges that remain outstanding for 30 or more days. In the event that your overdue account is referred to a collection agency and/or law firm, you will be liable for all costs which would be incurred as if the debt is collected in full including commission on collection of the additional costs and also including legal demand costs.

5. PAYMENT BY DIRECT DEBIT
5.1 Where the Customer provides valid bank or credit card payment details in the Service Order Form the Customer agrees to provide payment by direct debit of that bank or credit card account.

5.2 We will ensure:
a) That information about your nominated account or financial institution is kept confidential except to the extent needed to initiate and process direct debits;
b) That if a payment falls due on a non-business day, the direct debit will be made to your nominated account on the next business day; and,
c) That you are notified of any changes that affect your direct debits at least 14 days before those changes take effect.

5.3 The Customer will:
a) Agree to allow Activa Communications to draw your payments directly from the nominated account and agree to allow your bank or financial institution to make direct debits from the account;
b) Undertake to ensure the nominated account will contain sufficient funds to cover the direct debit;
c) Acknowledge that if a direct debit is not honoured by your bank or financial institution, Activa Communications will require payment in some other form and may charge you interest on the unpaid amount as well as any administration costs; and,
d) Undertake to notify Activa Communications if the nominated account is transferred or closed or if the account details change.

6. EQUIPMENT
6.1 We will agree with the Customer the date on which we will install the Provided Equipment at the Customers Premises. Where we specify a date to the Customer for installation, we will try to keep to the specified date, but we cannot be liable for any loss the Customer may suffer if we fail to do so.

6.2 We will install the Provided Equipment in the Customers Premises and will maintain that equipment while we are supplying the Service to the Customer free of charge and warrant it to be free of defects during the Initial Term. We will be liable for any reasonable costs associated with installation of the Service excluding the use of third party services.

6.3 We will try to install the Provided Equipment to the Customers Premises in the way the Customer would like, but for technical and commercial reasons, we have the final decision on installation, for example, the position of any connection point or cables. We cannot guarantee that the Provided Equipment will be fault-free.

6.4 The Customer must provide us with safe access to the Customer’s Premises to install, maintain or remove the Provided Equipment. The Customer represents to us that the Customer is either the owner or occupier of the Customers Premises and that the Customer has obtained any necessary permissions to allow us to satisfy our obligations under this Agreement.

6.5 The Customer must indemnify us against any liability we may incur to any person with an interest in the Customer’s Premises in conjunction with the Installation, Maintenance or removal of the Service or Provided Equipment

6.6 If it is necessary in providing the Service to disconnect the Customer from a third party operated network we will seek the Customers approval prior to disconnection.

6.7 We will not be obliged to repair any damage to the Customers Premises or property caused by the removal of the Service or Provided Equipment.

7. OWNERSHIP AND USE OF THE PROVIDED EQUIPMENT
7.1 For the Purpose of any regulations made pursuant to sub-section 22(1) of the Telecommunications Act 1997 and in any event the boundary of our telecommunications network is the wall-plate in the Customer’s Promises, or such other point as we may advise on reasonable notice.

7.2 The Customer must not use or permit anyone else to use any Provided Equipment without our permission. We permit the Customer to use the Provided Equipment to receive the Service on the terms of this Agreement.

7.3 The Customer must provide a suitable place and conditions for the Provided Equipment. The Customer most provide electricity and connection points for the Provided Equipment at the Customer’s own expense.

7.4 If the Customer does not own the Customer’s Premises, the Customer must use its best endeavours to ensure that the owner of the premises complies with these Terms of Service. If the Customer’s Premises is sold, the Customer must use its best endeavours to ensure that the purchaser agrees to observe the terms of this clause 6 (including the terms of this clause 6.4). In particular, the Customer must notify the purchaser that the Provided Equipment is the property of Activa Communications. This clause 6.4 applies to the first and any subsequent sale. If the Customer does not own the Customers Premises, the Customer must notify the owner of the terms of this clause 6.

8. CUSTOMER SERVICE
8.1 If the Customer experiences a problem with the Provided Equipment or Service, the Customer should report the problem to us.

8.2 We will use reasonable efforts to rectify the problem as soon as possible.

8.3 If the Customer reports a fault and we find there is no fault or the fault was not caused by us, we may charge the Customer for any work we have done to try to find the fault or repair it, providing that the fees charges represent our reasonable costs to perform the work.

9 INDEMNITY AND LIMITATION OF LIABILITY
9.1 The Customer must indemnify us against any loss, damage, liability, expense, cost or charge arising from or incurred in connection with:
(a) any fault in the Service, the Provided Equipment or the Software due to the Customers negligence or wilful misuse, or any unauthorised use of any of them; and
(b) breach by the Customer of any provision of these Terms of Service.

9.2 Subject to clause 8, we accept liability for the supply of the Service but only to the extent provided in this clause.

9.3 We accept liability where
(a) the Service is not supplied with due care and skill;
(b) any materials supplied in connection with the Service including the Provided Equipment are not reasonably fit for the purpose for which they are supplied and:
(c) it is otherwise required to do so by the Trade Practices Act.

9.4 To the extent (if any) that the Service is not of a kind ordinarily acquired for personal, domestic or household use, our liability under clause 9.3 is limited to, at our option, re-supplying or paying for the re-supply of the Service.

9.5 Except as stated above, we are not liable in tort (including negligence), contract or otherwise for any damages, including loss of profits, business or anticipated savings or any other indirect or consequential damage.

9.6 The Customer indemnifies Activa Communications in respect of any loss, liability or expense arising out of the reproduction, broadcast use, transmission, communication or making available of any material (including data and information of any sort) by the Customer, using the Service.

10. PERSONAL INFORMATION
10.1 Information concerning the Customer will be held in a database. The database will contain the Customer’s name, address, phone numbers, bank account or card details, billing details, information relating to the provision and use of the Service, and information provided by the Customer in connection with this Agreement or the Service.

10.2 This information (other than bank account and credit card details) may be used:
(a) to enable us to perform our obligations to the Customer under this Agreement including to provide the Service;
(b) to enable us to ensure that the Customer performs its obligations under this Agreement;
(c) by any entity related to us and any Service Provider, for planning research and the promotion and marketing (whether targeted, direct or indirect of ours or their products and services) or if required by any law (including without limitation the Corporations Act), or if required by the rules of any stock exchange.

10.3 In addition to our other rights under this clause 10. we may give Credit Information about the Customer to a credit reporting agency to:
(a) obtain a consumer credit report about the Customer,
(b) allow the credit reporting agency to create and maintain a credit information file containing information about the Customer.

10.4 In addition to our other rights under this clause 10, we may (in accordance with the Privacy Act 1988):
(a) obtain and use information concerning the Customers commercial activities and commercial credit worthiness from a credit reporting agency or other business that reports on commercial credit worthiness to assess the Customers application for the Service (if the application is for consumer credit) or to assist in the collection of overdue payments;
(b) obtain a consumer credit report about the Customer from a credit reporting agency to assess the Customer’s application for the Service (if it is for commercial credit) or to assist in the collection of overdue payments; and
(c) disclose information about the Customer to other credit providers or obtain and use information from other credit providers for the proposes of assessing the Customer’s application for the Service, the Customers ongoing credit worthiness or the status of an account held by the Customer with us or with any other credit provider.

10.5 The Customer consents to the collection, use and disclosure of information as set out in this clause 10. If the Customer does not want the information to be used for direct marketing they must notify us in writing and we will ensure that the information is not used for this use.

10.6 ‘Credit Information” in the above cases means:
(a) identity particulars (name, address, and date of birth);
(b) the Customers application for credit or commercial credit;
(c) the fact we are a current credit provider to the Customer;
(d) records of payments that are overdue by more than 60 days and for which debt collection has commenced;
(e) advice that payments are no longer overdue in respect of a default which has been listed;
(f) information that in our opinion, indicates that the Customer has committed a serious credit infringement and;
(g) records of cheques drawn by the Customer for more than $100 that have been dishonoured more than once.

11 CHANGING THIS AGREEMENT
11.1 If the Customer asks us to change the place at which the Service is provided (for example, the Customer has moved to a new address), we cannot guarantee that we will be able to provide the Service at the new address. If we can provide it, the Customer will have to pay any charges for installing the Service at the new address.

11.2 If the Customer wants us to provide the Service at another place in addition to the Customer’s Premises, the Customer will have to sign a separate Sales Order Form with us for the Service provided at that place. The additional Service sites will be subject to the terms and conditions outlined in this Agreement.

11.3 We can change this Agreement and the Terms of Service at any time provided that we give the Customer 30 days’ prior notification of any change and the Customer consents to the change. The Customer must notify us of the Customer’s consent to the change within 14 days of our notice, otherwise we may exercise our right to terminate the Agreement under clause 13.3. The Customers continued use of the Service beyond the date of the change will be deemed acceptance of it.

11.4 We can offer new or additional features that do not affect any of the Customers’ existing Services, including the price for them, at any time.

11.5 It will be sufficient for the purposes of clause 11.3, that we may notify the Customer only of the fact that this Agreement or the Terms of Service has been changed and that we post a revised copy of the Terms of Service on our website at “http://www.activacomms.com.au/tos”.

12.TRANSFERRING THE SERVICE
The Customer may not transfer or novate, nor try to transfer or novate the right to receive the Service or any other right under this Agreement to anyone else without our consent. We may transfer or novate any of our rights or obligations order this Agreement without the customer’s consent by sending the Customer a notice.

13 SERVICE SUSPENSION, CANCELLATION OR AMENDMENT
13.1 Subject to clause 13.4, the Customer can terminate the Service by giving 30 days’ notice to us.

13.2 If we reasonably believe that the Customer has breached any material term of this Agreement we can without affecting any other rights we may have, immediately terminate or suspend the Customer’s Service. The Customer may still be liable to pay Monthly Fees during the period of suspension. If we terminate this Agreement and the Customer has not paid the cancellation fee described in clause 13.4, the Customer must return to us all Provided Equipment.

13.3 We are otherwise entitled to terminate this Agreement by giving the customer 30 days’ notice.

13.4 If the Customer decides to terminate the Service after the end of the Cooling off Period, if applicable, and before the end of the Initial Term, the Customer must pay to us an amount equal to the amount of the Monthly Fee for each month, or part thereof, remaining in the Initial Term. This amount is a genuine pre-estimate of our loss.

13.5 If we terminate or suspend the Service under clause 13.2, and later at the Customers request, we agree to reinstate the Service, the Customer must pay a reconnection fee and any other applicable fees.

14. RESALE OF SERVICE
The Customer agrees that the Service is for the Customer’s use and agrees that the Service is not for resale.

15.GENERAL TERMS
15.1 If we do not exercise or delay in exercising our rights under this Agreement, we will not be taken to have waived our rights.

15.2 This Agreement will be governed by and interpreted in accordance with the laws of the State or Territory in which the Customer signed this Agreement

15.3 Clauses 2,3,4,6,7,9 and 10 survive termination of this Agreement

15.4 Notices can be provided under this Agreement by email, post or facsimile.

15.5 A reference in this Agreement to the singular includes the plural.