1.1 .Service Provider. shall mean Megalink Australia Pty Ltd and its successors and assigns.
1.2 .Client. shall mean the Client or any person or Service Provider acting on behalf of and with the authority of the Client.
1.3 .Services. shall mean all services supplied by the Service Provider to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Equipment as hereinafter defined).
1.4 .Equipment. shall mean Equipment supplied by the Service Provider to the Client (and where the context so permits shall include any supply of Equipment as defined supra).
1.5 .Price. shall mean the cost of the Services as agreed between the Service Provider and the Client subject to clause 4 of this contract.
Any instructions received by the Service Provider from the Client for the supply of Services and/or the Client.s acceptance of Services supplied by the Service Provider shall constitute acceptance of the terms and conditions contained herein.
Where more than one Buyer has entered into this agreement, the Buyers shall be jointly and severally liable for all payments of the Price.
Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Service Provider.
None of the Service Provider.s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Service Provider in writing nor is the Service Provider bound by any such unauthorised statements.
These terms and conditions are to be read in conjunction with any service contract/agreement between the Service Provider and the Client. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
The Buyer undertakes to give the Seller not less than seven (7) days prior written notice of any proposed change in the Buyer.s name and/or any other change in the Buyer.s details (including but not limited to, changes in the Buyer.s address, facsimile number, or business practice).
3.1 The Services shall be as described on the invoices, quotation, or any other work commencement forms as provided by the Service Provider to the Client.
Price And Payment
4.1 The Price shall be as indicated on invoices provided by the Service Provider to the Client in respect of Services supplied.
4.2 At the Service Providers sole discretion an installation fee will be required. The fee amount will be stipulated at the time of the order of the Services and shall become immediately due and payable.
4.3 Time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery/installation of the Services.
4.4 At the Seller.s sole discretion, for certain approved Buyers payment will be due seven (7) days following the date of the invoice.
4.5 Payment will be made by cheque, or by bank cheque, or by credit card (plus any charges that maybe applicable), or by any other method as agreed to between the Client and the Service Provider.
4.6 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Service Provider.
Delivery Of Equipment
5.1 Delivery of the Equipment shall be made to the Client.s site address. The Client shall make all arrangements necessary to take delivery of the Equipment whenever they are tendered for delivery, or delivery of the Equipment shall be made to the Client at the Service Providers address.
5.2 The Service Provider may deliver the Equipment by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.3 The Seller shall not be liable for any loss or damage caused in accessing the work site beyond reasonable control of the Seller (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas, or damage to roofing).
5.4 The failure of the Service Provider to deliver shall not entitle either party to treat this contract as repudiated.
5.5 The Service Provider shall not be liable for any loss or damage whatever due to failure by the Service Provider to deliver the Equipment (or any of them) promptly or at all.
6.1. The Client shall inspect the Equipment on delivery or installation and shall within forty-eight (48) hours of delivery or installation notify the Service Provider of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Service Provider an opportunity to inspect the Equipment and installation within a reasonable time following delivery. If the Client shall fail to comply with these provisions the Equipment shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
7.1 The Warranty shall be the current warranty provided by the manufacturer of the Equipment. The Service Provider shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
8.1 If the all risk for the Equipment passes to the Buyer on delivery. Seller retains property in the Equipment nonetheless
8.2 If any of the Equipment are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Equipment), to receive all insurance proceeds payable in respect of the Equipment. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller.s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
9.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
10.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Buyer acknowledges that he buys the Equipment relying solely upon his own skill and judgement. and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
Default & Consequences Of Default
11.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
11.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Service Provider from and against all the Service Provider.s costs and disbursements including on a solicitor and own client basis, all Bank dishonour fees and in addition all Credit Control costs of collection.
11.3 Without prejudice to any other remedies the Service Provider may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Service Provider may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Service Provider will not be liable to the Client for any loss or damage the Client suffers because the Service Provider exercised its rights under this clause.
11.4 If any account remains unpaid at the end of the second month after supply of the Services or services the following shall apply: An immediate amount of fifty dollars ($50.00) shall be levied for administration fees which sum shall become immediately due and payable.
11.5 In the event that:
- any money payable to the Seller becomes overdue, or in the Seller.s opinion the Buyer will be unable to meet its payments as they fall due; or
- the Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer;
then without prejudice to the Seller.s other remedies at law
- the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
- all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
12.1 It is the intention of the seller and agreed by the Buyer that property in the Equipment shall not pass until
- (a) The Buyer has paid all amounts owing for the particular Equipment, and
- (b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Equipment, or proceeds of the sale of the Equipment, shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
12.2 It is further agreed that:
- The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
- If the Buyer fails to return the Equipment to the Seller then the Seller or the Seller.s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Equipment are situated and take possession of the Equipment, without being responsible for any damage thereby caused.
- The Buyer shall not charge the Equipment in any way nor grant nor otherwise give any interest in the Equipment while they remain the property of the Seller.
- The Seller can issue proceedings to recover the Price of the Equipment notwithstanding that ownership of the Equipment may not have passed to the Buyer.
Security And Charge
13.1 Notwithstanding anything to the contrary contained herein or any other rights which the Service Provider may have howsoever:
- Where the Client is the owner of land, realty or any other asset capable of being charged, the Client agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Service Provider or the Service Provider.s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client acknowledges and agrees that the Service Provider (or the Service Provider.s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
- Should the Service Provider elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client shall indemnify the Service Provider from and against all the Service Provider.s costs and disbursements including legal costs on a solicitor and own client basis.
- To give effect to the provisions of clause [13.1 (a) and (b)] inclusive hereof the Client do hereby irrevocably nominate constitute and appoint the Service Provider or the Service Provider.s nominee, as the Client.s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Service Provider shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client in any land, realty or asset in favour of the Service Provider and in the Client.s name as may be necessary to secure the said Client.s obligations and indebtedness to the Service Provider and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Service Provider.s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
Privacy Act 1988
14.1 The Client agrees for the Service Provider to obtain from a credit-reporting agency a credit report containing personal credit information about the Client in relation to credit provided by the Service Provider.
14.2 The Client agree that the Service Provider may exchange information about Client with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
- To assess an application by Client;
- To notify other credit providers of a default by the Client;
- To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and
- To assess the credit worthiness of Client.
14.3 The Client consents to the Service Provider being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client agrees that Personal Data provided may be used and retained by the Service Provider for the following purposes and for other purposes as shall be agreed between the Client and Service Provider or required by law from time to time:
- provision of Services & Services;
- marketing of Services and or Services by the Service Provider, its agents or distributors in relation to the Services and Services;
- analysing, verifying and/or checking the Client.s credit, payment and/or status in relation to provision of Services/Services;
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and
- enabling the daily operation of Client.s account and/or the collection of amounts outstanding in the Client.s account in relation to the Services and Services.
14.5 The Service Provider may give, information about the Client to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Client; and or
- allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15.1 Where the Service Provider has designed or drawn Services for the Client, then the copyright in those designs and drawings shall remain vested in the Service Provider, and shall only be used by the Client at the Service Provider.s discretion.
15.2 Conversely, in such a situation, where the Client has supplied drawings, the Service Provider in its sale conditions may look for an indemnity (the specifications and design of the Services (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Service Provider). Where any designs or specifications have been supplied by the Client for manufacture by or to the order of the Service Provider then the Client warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Services shall not infringe the rights of any third party.
15.3 The Client warrants that all designs or instructions to the Service Provider will not cause the Service Provider to infringe any patent, registered design or trademark in the execution of the Clients order.
15.4 Where the Service Provider has provided computer software and documentation, the Service Provider retains ownership of the computer software and documentation, but grants a licence to the Client for use of the computer software and documentation. The Client will use any third-party software supplied by the Service Provider, and identified as such, strictly in terms of the licence under which it is supplied.
16.1. In accordance with their service order and contracted period of service, the Client may cancel their service contract/agreement by giving one monthly billing cycle written notice. At the time of cancellation any monies owed by the Client under the contract term shall become immediately due and payable.
16.2. In the event that the Client wishes to reactivate their service contract/agreement following cancellation a further set up fee will apply.
16.3. The Service Provider reserves the right to terminate the service contract/agreement without notice in the event of;
16.4. The Client being found to be ‘Spamming’ (the practice of sending unsolicited, unwelcome mass mailings to people);
16.5. The Client using Equipment/Services outside the bounds of Internet Etiquette (as defined by the Service Provider from time to time).
16.6. In the event that the Service Provider terminates the service contract/agreement under clause 19.3, the Client remains liable for any monies owed to the Service Provider as well as for any damages that may occur as a result of the actions, which lead to the termination of the service contract/agreement.
16.7 In the event that the Service Provider terminates the service contract/agreement under clause 16.8, the Client remains liable for any monies owed to the Service Provider as well as for any damages that may occur as a result of the actions, which lead to the termination of the service contract/agreement.
If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- All Services/Services supplied by the Service Provider are subject to the laws of Victoria and the Service Provider takes no responsibility for changes in the law, which affect the Services supplied.
- The Service Provider shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Service Provider of these terms and conditions.
- The Client shall not set off against the Price amounts due from the Service Provider.
- The Service Provider may license or sub-contract all or any part of its rights and obligations without the Client.s consent.
- In the event of any breach of this contract by the Service Provider the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Service Provider exceed the Price of the Services.
- Neither party shall be liable for any default due to any act of god, war, strike, lock out, industrial action, fire, terrorism, flood, drought, storm or other event beyond the reasonable control of either party.
- The Service Provider reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Service Provider notifies the Client of such change.
OUR ACCEPTABLE USE POLICY
This document sets out the rules which apply to your use of our Dial Up, Broadband and other services we provide to you for connection to the Internet, email and other publicly accessible data and information networks.
The following definitions are used in our Acceptable Use Policy.
- Application Form means the application form you complete for the Internet Service we provide to you.
- Internet means the world wide connection of computer networks which provides a number of services to users
- including the transmission of electronic mail, provision of information on the world wide web and transfer of files.
- Internet Services means the service (identified in your Application Form) by which we provide you with access to the Internet, including our Broadband and Dial up products.
- Policy means this Acceptable Use Policy, a copy of which is accessible on our website a twww.megalink.com.au
- SFOA means our Standard Form of Agreement.
Application of this Policy
This Policy applies to all customers who acquire an Internet Service from us. Your obligation to comply with this Policy includes your obligation to ensure any person who you authorise or permit to use your Internet Service also complies with this Policy. Your failure to comply with this Policy (including by any person who you authorise or permit to use your Internet Service) may lead to the restriction, suspension or termination of your Internet Service.
- You must use your Internet Service responsibly and in accordance with the law.
- If you engage in any conduct which could result in injury or damage to any person or property (including the Megalink network, systems and equipment), access to your Internet Service may be restricted, suspended or terminated without prior notice.
- You must not use or attempt to use your Internet Service to store, send, distribute or otherwise make available any content or material which:
- defames, harasses, threatens, abuses, menaces, offends or incites violence or hatred against any person or class of persons whether on grounds of gender, race, religion or otherwise;
- is prohibited or unlawful under any Commonwealth, State or Territory law or classification system, or which is likely to be offensive or obscene to a reasonable person;
- is confidential, subject to copyright or any other rights of a third party (unless you have a lawful right to do so);
- is otherwise illegal, fraudulent or likely to give rise to civil or criminal proceedings.
- You must not use or attempt to use your Internet Service to:
- store, send or distribute any viruses or other harmful programs, codes or other malicious software;
- hinder, restrict or interfere with the normal operation of our network, systems and equipment or that of any other person;
- access, monitor, use or control any other person's equipment, systems, networks or data (including usernames and passwords) without their knowledge or consent or to otherwise probe, scan or test the vulnerability of any such equipment, networks, systems or data;
- · send, relay or otherwise distribute any electronic message, the contents or properties of which have been created, forged or altered for the purpose of impersonating, hiding or otherwise obscuring the original sender or source of that message;
- send or distribute unsolicited commercial electronic messages in breach of the provisions of the Spam Act 2003 (Cth); or
- send or distribute any material or take any other action with the aim of overloading any network or system (including our network and systems).
- You must not authorise, aid, abet, encourage or incite any other person to do or attempt to any of the acts or engage in any of prohibited conduct described above.
- You must use your Internet Service in accordance with any download or capacity limits stated in your Application Form.
- We may limit, suspend or terminate your Internet Service if you unreasonably exceed such limits or excessively use the capacity or resources of our network and systems in a manner which may hinder or prevent us from providing services to other customers.
- You are responsible for:
- maintaining the security of your Internet Service, including protection of account details, usernames and passwords against unauthorized use by a third party;
- all charges incurred by other persons who you authorise or permit to use your Internet Service, including anyone to whom you have disclosed your password and account details; and
- taking appropriate security measures such as installation of a firewall and use of anti-virus software to protect your personal data, computer and other equipment from loss or damage.
- You must not use your Internet Service to copy, 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 law.
- You acknowledge and agree that we have the right to immediately cease hosting and to remove from our network or systems any material upon receiving a complaint or allegation that the material infringes the copyright or any other intellectual property rights of any person.
Access to Internet content
- You are responsible for determining the content and information you choose to access on the Internet when using your Internet 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 authorise or permit to use your Internet Service. You may obtain further information on the filtering products by contacting:
Communicating with others
- You must not use, attempt to use or permit to be used your Internet Service to make inappropriate contact with children or minors who are not otherwise know to you.
- You are responsible for any content you send or distribute (or permit to be sent or distributed) to other Internet users using your Internet Service including, but not limited to, content you post on web pages, email, chat or discussion forums, bulletin boards, instant messaging and other services available via the Internet. 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 Internet Service without notice.
- You must label or otherwise clearly identify any content you make publicly available using your Internet Service in accordance with the applicable classification guidelines and the National Classification Code (issued pursuant to the Classification (Publications, Films and Computer Games) Act 1995 (Cth)) or any other industry code or content standard which applies to your use or distribution of that content.
- Complying with regulatory authorities
- Commonwealth legislation allows the Australian Communications and Media Authority (ACMA) to direct us to remove from our network and servers any content which is classified, or likely to be classified, as 'prohibited' content.
- You must not hinder or prevent us from taking all steps necessary to comply with any direction from ACMA or any law enforcement agency and you acknowledge that we may comply with the directions of such authorities without notice to you.
- You acknowledge that we reserve the right to restrict, suspend or terminate your Internet Service if there are reasonable grounds for suspecting that you are engaging in illegal conduct or where use of your Internet Service is subject to any investigation by law enforcement agencies or regulatory authorities.
If you have a complaint about Internet content you should visit ACMA's website at www.acma.gov.au/hotline.
If you have any questions or concerns about this Policy you should contact us at email@example.com or by calling 1300 302 719.