Standard Form of Agreement (SFOA) - in accordance with Part 23, Telecommunications Act (1997)

Maxx Internet Pty Ltd

The SFOA contains important information about your rights and obligations associated with the use of our services. Please take the time read through this document carefully and should you have any questions regarding it please do not hesitate to contact our Customer Service Centre on (03)8368 2701.

Version 1.0 Copyright © - issued 01 January 2004

Contents

Introduction

This document sets out the terms and conditions of Your Internet Access with Maxx Internet. This document is online at http://www.maxxcomm.com.au and a copy is available on request from Maxx Internet. This document governs all Internet Access and similar services provided by Maxx Internet as of January 2004 and will remain in force until revoked or by operation of law. This document replaces all previous contracts and Acceptable Use Policies and applies to all Maxx Internet customers. It is governed by the laws of the Commonwealth of Australia and the State of Western Australia.

Definitions

In this document, certain words and phrases are capitalised and defined for the purpose of accuracy. The following definitions apply:

Singular definitions include the plural and vice versa, where the meaning requires it.

Agreement means the terms comprising of the Standard Form of Agreement (SFOA), Your application and the Service Schedule.

Cancellation Charge means the Cancellation Charge for the Service specified in the Service Schedule.

Charges means the charges for the Services or Products available from Maxx Internet.

Commencement Date means the date on which Maxx Internet notifies You that the Service is ready for use.

Maxx Internet means Maxx Internet, postal address is PO Box 4145 Hoppers crossing DC, Hoppers Crossing Victoria Australia 3087. Our telephone number is (03)9432 2798. Our general email address is admin@Hyp.net.au.

Maxx Internet's Legal Obligations means obligations arising under any State or Federal legislation, by order, direction or request of a government agency or semi-government agency (including any emergency service organisation), any order of a court, or to comply with any industry code of conduct.

Denial-of-Service Attacks means behaviour that results in disruption of Maxx Internet's Service, disruption of other people's Internet Access, which includes but is not limited to computer viruses, email bombardment and damage to Internet-connected resources.

Due Date means the specified date on the invoice or reminder notice by which payment must be received.

Internet Access means connection to the global network of networks known as "The Internet" using software protocols supported by the Internet Service Provider (ISP) to connect Your computer equipment to the ISP's network. This includes access to emails and the world wide web.

Open Third-Party Mail Relay means the use of a mail server which allows a mail message to be delivered by an unauthorised person.

Products means the products described in the Products Schedule selected by You.

Products Schedule means the schedule to the Products available for purchase as varied from time to time.

Prohibited Activities means misuse of the Internet Access including:

(i)

deliberately or unintentionally disrupting the Service, or engaging in any activity likely to disrupt the Service;

(ii)

engaging in Spamming;

(iii)

misusing the Internet Access in a manner identified by a competent law enforcement official as unlawful such as copyright violations, defamation or fraud;

(iv)

using Your Internet Access to menace or harass others;

(v)

Denial-of-Service Attacks on other users or networks;

(vi)

using Your Internet Access to unlawfully obtain access to other networks;

(vii)

using Your Internet Access to make offensive, inappropriate or off-topic posts to moderated Usenet News;

(viii)

operating any server as an Open Third-Party Mail Relay; or

(ix)

engaging in any other form of activity that in Maxx Internet's opinion does, or could reasonably be expected to, adversely affect Maxx Internet's commercial reputation or interests, Maxx Internet's network or users of Maxx Internet's network.

Purchase(d) Equipment means any equipment to be purchased by You from Maxx Internet.

Service means the services described in the Service Schedule selected by You.

Service Schedule means the schedule to the Service for Internet Access as varied from time to time

Software means any software provided by Maxx Internet to You for the purposes of Maxx Internet providing the Service to You.

Spamming means unsolicited bulk electronic messages sent by You which in Maxx Internet's opinion, having regard to prevailing industry practices constitutes a breach of acceptable use of the Internet Access.

Standard Form of Agreement (SFOA) means the terms and conditions set out in this document.

Tax means any taxes (including goods and services taxes), levies, imposts, deductions, charges, withholding's and duties (including stamp and transaction duties).

Usage means the measurement of time or data generated by Your Internet Access.

Usenet News means the hierarchy of newsgroups.

You and Your refer to the account holder of the Service, and includes any person authorised by password.


1.0 Service Agreements


(1.1)

In accordance with the terms and conditions set out in this SFOA, the Maxx Internet Service Schedule and Your application, You (the customer) agree to acquire, and Maxx Internet agrees to supply You with the required Services for Internet Access

(1.2)

If deemed necessary, Maxx Internet may vary the terms of agreement in this SFOA. However, where such variation will be of detriment to You, Maxx Internet will email a summary of the proposed variation to your Maxx Internet Email Account at least 21 days prior to the variation taking effect.

(1.3)

The term of this Agreement commences on the actual date of application and continues until terminated in accordance with the terms of this Agreement.

(1.4)

Maxx Internet will provide You with standard configuration information in order to facilitate Your access to the Service.

(1.5)

You are responsible for the use of Your Service. Maxx Internet cannot and will not guarantee protection for You against computer viruses and/or other possible security problems. Maxx Internet cannot and will not control or censor the material that is available to You on the global Internet. If You are confronted with material which You believe to be illegal, You can report it to the Australian Broadcasting Authority.

(1.6)

Your password is the means by which You control the security of Your Internet account and protect it from any unauthorised usage. You are responsible for Your password and must take due care not to disclose it to any unauthorised person. As Your password is the authority for and means of protecting Your Service, Maxx Internet recommends You change Your password regularly to protect Your security online.

(1.7)

Prior to entering into this Agreement, Maxx Internet may make enquires into your credit history with a credit reporting agency. If Your credit history is deemed to not be acceptable based on Maxx Internet's prudent business standards, Maxx Internet may reserve the right to refuse to enter into this Agreement with You.


2.0 Rights of Maxx Internet


(2.1)

Under this Agreement Maxx Internet may:

(a)

delete any transitory data stored on Maxx Internet servers for a duration exceeding 90 days;

(b)

reject any email (including attachments), which exceeds 5mb (including encapsulation) and is sent to You via any of Maxx Internet's mail servers.

(c)

where it is deemed necessary in order to comply with Maxx Internet's Legal Obligations, Maxx Internet may monitor data accessed or transmitted by You while using the Service;

(d)

take any steps deemed necessary to comply with Maxx Internet's Legal Obligations under the relevant State or Federal legislation, industry code of practice or under direction from a relevant regulatory authority or court order;

(e)

increase the amount You are charged for Your Internet Service (Charges of the Service) by providing You with 21 days notice;

(f)

vary the conditions of the Service by providing You with 21 days notice;

(g)

remove a Service by providing You with 21 days notice.


3.0 Your Obligations


(3.1)

You must be aged 18 years or over.

(3.2)

You will:

(a)

not engage in any Prohibited Activity, whilst using Services provided by Maxx Internet;

(b)

not in any way attempt to interfere with, the operation of:

(i)

the Service;

(ii)

the Maxx Internet network;

(iii)

other Maxx Internet customers/clients;

(iv)

the network of a supplier who is interconnected with the Maxx Internet network; or

(v)

any Maxx Internet equipment or facilities associated with the Service; and

(c)

provide all reasonable assistance necessary to assist Maxx Internet in providing the Service, including, but not limited to:

(i)

co-operate with Maxx Internet at Your own cost, so that Maxx Internet is able to provide the Service efficiently;

(ii)

obtain and maintain any authorisation, permission, licence, waiver, registration or consent from any person necessary for Maxx Internet to provide the Service; and

(iii)

obtain and maintain any necessary permission or co-operation from a carrier or other person for the connection or maintenance of Maxx Internet equipment and/or for the connection to Your Service.

4.0 Service Support


(4.1)

Maxx Internet operates a 24-hour help desk, which is staffed every day of the year. If You experience any difficulties with Your Internet Access, email support@Maxx Internetnetworks.com.au or telephone 1300 132 331.

(4.2)

You may contact us by email, telephone, post or facsimile. We may contact You by email, telephone, post or facsimile.

(4.3)

Advice from Maxx Internet's staff is given in good faith and with the best of intention, however Maxx Internet does not represent that its staff are experts in the operation of Your computer hardware or software. You undertake to act on any advice given by any Maxx Internet staff member at Your own risk.

(4.4)

Maxx Internet makes reasonable efforts to ensure that the information on the Maxx Internet website is correct and up to date. However, Maxx Internet does not warrant the accuracy of that material.


5.0 Licence


(5.1)

Maxx Internet grants to You an exclusive, non-transferable, revocable licence to use the Software for the purposes of receiving the Services for the term of this Agreement.

(5.2)

You must not under any circumstances or for any reason:

(a)

make any copies of the Software;

(b)

disassemble, decompile or otherwise reverse engineer the Software or create derivative works based on the Software; or

(c)

distribute or supply the Software to any person.


6.0 Billing


(6.1)

You must pay all Charges for the Service in accordance with this Agreement, which may be varied from time to time.

(6.2)

The set-up fee is processed upon the Commencement Date and is non-refundable.

(6.3)

Where Maxx Internet services are charged up front, Maxx Internet will issue You with a reminder notice 2 weeks prior to your renewal date. Alternativey Maxx Internet will issue You with an invoice in accordance with the period described by the Product or Service purchased or subscribed to by You. In addition, Maxx Internet reserves the right to:

(a)

at any time issue an interim invoice for accrued Charges and miscellaneous works which shall become payable in accordance with this clause 6; and

(b)

invoice You upon You ceasing, for any reason, to be a Maxx Internet customer.

(6.4)

All portions of Usage are Charged for and unused allocations are not transferable or refundable.

(6.5)

Maxx Internet reserves the right to re-issue an invoice if any error is subsequently discovered.

(6.6)

Your invoice will be calculated by reference to data recorded or logged by Maxx Internet. Records held by Maxx Internet will be conclusive evidence of the Usage of the Service and the Charges payable by You.

(6.7)

Unless otherwise stated in the Service Schedule, Invoices may be paid by Cash, Cheque, Credit Card, EFTPOS, BPAY, Direct Debit or at a National Australia Bank.

(6.8)

You must pay an invoice by the Due Date. Payment must be made in full by the manner prescribed for the Service in the Service Schedule. You may not make any allowance by way of set-off or withholding.

(6.9)

Where You are permitted to pay at the National Australia Bank, by BPay, cheque or automated credit card payments over the phone, You must pay the amount at least 5 business days before the Due Date. This is due to processing times of third parties.

(6.10)

Unless expressly stated otherwise, all Charges under this Agreement are inclusive of GST. Where Charges are expressed to be exclusive of GST, You must pay to Maxx Internet in addition to the Charges for the Services, an amount equal to any GST payable on the supply of the Services. That additional amount is payable at the same time as any part of the Charges for the Services is payable. Maxx Internet will issue a tax invoice to You for the supply of those Services at or before that time.

(6.11)

The following instances incur additional Charges:

(a)

dishonored or cancelled payments;

(b)

overdue invoiced amounts. In addition, Maxx Internet reserves the right to pass on details to a Credit Reporting Agency for any payments which are more than 60 days overdue. This information may include personal details and account particulars, and listing of default and clearout status;

(c)

any expenses, costs or disbursements incurred by Maxx Internet in recovering any outstanding monies including dishonour fees, debt collection, agency fees, and legal fees;

(d)

requests for Your Usage logs;

(e)

requests for logs of Your recorded calls to Maxx Internet support;

(f)

any Prohibited Activity that in Maxx Internet's reasonable opinion adversely affects Maxx Internet's network;

(g)

calls made by You to a third party that results in a charge levied against Maxx Internet; and

(h)

any additional instance(s) which cause a charge to be levied against Maxx Internet.

(6.12)

If You provide a credit card or direct debit authority, it will be automatically debited for future invoices. If Your Service does not require credit card details and You do not want a payment to be charged against an existing credit card or direct debit authority, 14 days notice is required.

(6.13)

Where credit card details are supplied by You or required for a Service, the credit card will also be used for all invoices for other Services grouped with this Service.

(6.14)

Any refunds granted will be less an administration Fee except where Maxx Internet is found to be at fault. All refunds are reimbursed by cheque only.

(6.15)

Maxx Internet does not refund unwanted Purchased Equipment. If You require a different model, Maxx Internet allows 7 business days, from the date You receive the Purchased Equipment, to return to Maxx Internet at Your own cost, any unopened Purchased Equipment from Maxx Internet. Credit to Your account will be less a 15% restock fee. No credit will be applicable on any Purchased Equipment returned unopened or after the 7 business day period.

7.0 Suspension and Termination


(7.1)

Maxx Internet may suspend the Service without notice where:

(a)

Maxx Internet is required to undertake the repair, maintenance or Service of any part of the Maxx Internet network;

(b)

it is reasonably required to reduce or prevent fraud or interference within the Maxx Internet network;

(c)

Maxx Internet is required to comply with Maxx Internet's Legal Obligations;

(d)

You:

(i)

do not pay any Charge due by the Due Date;

(ii)

breach Your obligations outlined in clause3.2; or

(iii)

any of the events described in clause 7.6(a) - (d) occurs; or

(e)

Your continued use of the Service in Maxx Internet's reasonable opinion adversely affects Maxx Internet's network.

(f)

You verbally or physically threaten any staff member of Maxx Internet.

(7.2)

Where Maxx Internet suspends the Service, that suspension will be without prejudice to Maxx Internet's right to terminate supply of the Service to You for the same breach in accordance with clause 7.6.

(7.3)

Despite any other provisions of this Agreement, Maxx Internet will not be liable to You, or any person claiming through You, in contract, tort or otherwise (including negligence) for any loss or damage arising from suspension of the Service in accordance with clause 7.0.

(7.4)

You may terminate this Agreement at any time on the provision of 5 business days written notice to Maxx Internet.

(7.5)

Where You terminate this Agreement and have:

(a)

pre-paid Fees for a set term, no refund is payable;

(b)

a Service with a contract period, Service termination within the contract period will incur a break fee; or

(c)

a volume charged Service, you will immediately be invoiced for any volume usage during the month.

(7.6)

Where You terminate this Agreement and have:

(a)

You have breached this Agreement and in Maxx Internet's opinion such breach is not capable of remedy;

(b)

You have breached this Agreement (NB: such breach is capable of remedy) and after notification You fail to remedy such a breach within 14 days of receiving email notice of that breach;

(c)

a provisional liquidator, liquidator, receiver or receiver and manager or any other administrator of Your business or assets is appointed or if You enter into any composition or arrangement with Your creditors;

(d)

Your Service has been suspended for an extended period of time;

(e)

You change Your address or billing account contact details without notifying Maxx Internet; or

(f)

You are an individual and in the event of Your death.

(7.7)

You remain liable for all Charges payable under the Agreement in respect of the provision of Services from the time of termination to the end of the relevant payment period or Contract Period.

8.0 Consequence of Termination


(8.1)

On termination of this Agreement:

(a)

Your right to use the Service ceases;

(b)

if You have not paid to Maxx Internet the Equipment Charges for any Purchased Equipment, Maxx Internet will immediately invoice You for any outstanding amount on the Purchased Equipment;

(c)

all Charges for use of the Service and all other amounts owing by You to Maxx Internet (including Equipment Charges) will become immediately due and payable. Any payment details held on record will be used against outstanding invoices. In addition, where a Service is charged at the end of the month, Charges will be applied at the end of the month; and

(d)

where a Service requires the payment of a Cancellation Charge You are responsible for paying that Cancellation Charge in full, by the specified due date.

(8.2)

Termination of this agreement does not affect any of the accrued rights or liabilities of either party, nor does it affect any provision that is expressly or by implication intended to operate after termination.

9.0 Third Parties


(9.1)

Maxx Internet is not liable for any call charges incurred by You dialing into our service. It is Your sole responsibility to ensure that the Maxx Internet number You are dialing into is a local call only. You are responsible for any third party carrier costs incurred for call connection fees from Your modem to Your Maxx Internet dialup number.

10.0 Purchase of Equipment


(10.1)

If You choose to Purchase Equipment from Maxx Internet the following terms apply:

(a)

You must pay the Equipment Charges in accordance with the manner prescribed in clause 6.0;

(b)

the responsibility for the well being and risk in of the Purchased Equipment is passed to the address indicated on Your application form or by You, on delivery from Maxx Internet; and

(c)

title in Purchased Equipment passes to You upon the receipt by Maxx Internet of all the Equipment Charges.


11.0 Warranties


(11.1)

Maxx Internet makes no warranty about the performance characteristic or capability of the Software.

(11.2)

Maxx Internet does not warrant that Services will be free of blockages, delays or faults and Maxx Internet is not responsible for any loss or damage which may occur as a result. Downtime will not be compensated for unless it is required by State or Federal law.

(11.3)

Connection speeds cannot and will not be guaranteed, nor can Maxx Internet guarantee connection to any particular Internet site.

(11.4)

Network performance may vary among Services, and Maxx Internet may manage Maxx Internet's network to ensure fair and equitable Usage.

(11.5)

You warrant that You have not relied on any representation made by Maxx Internet, its officers, employees or agents, which has not been stated expressly either in this Agreement or upon any description, illustrations or specifications contained in any document (including brochures, advertising or publicity material) produced by Maxx Internet and You acknowledge that to the extent Maxx Internet has made any such representation You have been provided with an opportunity to independently verify the accuracy of that representation and You entered into this Agreement solely in reliance upon either Your verification or Your decision not to verify (as the case may be).

(11.6)

To the extent permitted by law Maxx Internet excludes all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise, relating to the provision by Maxx Internet of the Services or Software.

(11.7)

To the extent that Maxx Internet's liability by operation of law cannot be excluded under clause 11.6 Maxx Internet's liability shall be limited to:

(a)

in the case of goods:

(i)

to Maxx Internet repairing or replacing those goods; or

(ii)

where re-supply of the goods is not possible, fees paid for those goods.

(b)

in the case of services:

(i)

to Maxx Internet re-supplying those Services; or

(ii)

where re-supply of the Services is not possible, to the extent of fees paid for the Service for the period the Service was not supplied. Where a substitute Service has been supplied, liability is limited to the difference in cost between the two Services.


12.0 Limitations of Liability


(12.1)

Except as provided by clause 11.7, Maxx Internet excludes all liability for any other loss or damage (including but not limited to consequential or indirect loss or damage or any economic loss or business interruption loss or lost profits or loss of opportunity or Your liability to other people under contracts or otherwise) however caused (whether by negligence or otherwise) which may be suffered or incurred by You as a result of, or which may arise directly or indirectly in respect of, a failure or omission on the part of Maxx Internet to comply with its obligations under this Agreement.

(12.2)

Maxx Internet is not liable to You or to any other person for any other loss or damage (including but not limited to consequential or indirect loss or damage or any economic loss or business interruption loss or lost profits or loss of opportunity or Your liability to other people under contracts or otherwise) that arises directly or indirectly in respect of:

(a)

acts or defaults of a third party;

(b)

faults or defects in the Services, Software or Purchased Equipment which are caused to any material extent by Your own conduct or misuse; and

(c)

faults or defects that arise in telecommunications services not provided under this Agreement.

13.0 Indemnities


(13.1)

You must indemnify and keep Maxx Internet indemnified against any loss, cost, liability or damage (including, without limitation, legal costs on a solicitor/client basis) incurred or suffered by Maxx Internet, which arises from or is connected with:

(a)

Your breach of this Agreement;

(b)

any claim or demand against Maxx Internet (including, without limitation, for negligence) by any person other than You to or through whom the Service, or any service which uses or relies on the Service, is supplied or distributed, which arises from or is connected with Maxx Internet's supply of the Service or any ancillary service; and

(c)

any damage which You or Your employees, agents or contractors cause to the Maxx Internet Network, Maxx Internet equipment or any other Maxx Internet property.

14.0 Privacy


(14.1)

Maxx Internet's privacy policy can be found at http://www.Hyp.net.au


15.0 Complaints Procedure


(15.1)

If You wish to make a complaint about Maxx Internet, our Services or any associated matter, You may contact us by email, telephone, post, facsimile or by using the online feedback form at http://www.Hyp.net.au. Wherever possible, complaints will be dealt with promptly, and where possible You will receive a response within 5 working days.

(15.2)

If You are dissatisfied with the outcome of Your complaint, You may choose to escalate the complaint internally by requesting to speak to a supervisor.

(15.3)

As a last resort, the Telecommunications Industry Ombudsman offers a full complaint procedure. Details are online at http://www.tio.com.au/


16.0 Invalidity


(16.1)

If a provision of this Agreement or a right or remedy of a party under this Agreement is invalid or unenforceable in a particular jurisdiction:

(a)

It is read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability; and

(b)

It does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.

(16.2)

This clause is not limited by any other provision of this Agreement in relation to severability, prohibition or enforceability.

17.0 Waivers


(17.1)

A waiver of a provision of this Agreement or a right or remedy arising under this Agreement, including this clause, must be in writing and signed by the party granting the waiver. Unless otherwise specified a waiver is valid for 7 business days.

(17.2)

A single or partial exercise of a right does not preclude a further exercise of that right or the exercise of another right.

(17.3)

Failure by a party to exercise a right or delay in exercising that right does not prevent its exercise or operate as a waiver.

(17.4)

A waiver is only effective in the specific instance and for the specific purpose for which it is given.

18.0 Cumulative Rights


(18.1)

The rights and remedies of a party under this Agreement does not exclude any other right or remedy provided by law.

19.0 Force Majeure


(19.1)

Maxx Internet is not liable for:

(a)

any delay in installing any Service;

(b)

any delay in correcting any fault in any Service;

(c)

failure or incorrect operation of any Service; or

(d)

any other delay or default in performance under this Agreement, if it is caused by any event which is reasonably beyond our control, including but not limited to compliance with Maxx Internet's Legal Obligations, war, accident, industrial action, embargo, delay or failure or default by any other supplier.

20.0 Continuing indemnities and survival of indemnities


(20.1)

Each indemnity contained in this Agreement is a continuing obligation despite a settlement of account or the occurrence of any other thing, and remains fully effective until all money owing, contingently or otherwise, under an indemnity has been paid in full.

(20.2)

Each indemnity contained in this Agreement:

(a)

is an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity; and

(b)

survives the termination of this Agreement.

21.0 Entire Agreement


(21.1)

This Agreement contains the whole understanding between Maxx Internet and You to the exclusion of any prior or collateral Agreement or understanding of any kind relating to the Services.

22.0 No Assignment


(22.1)

Maxx Internet may on 30 days' written notice to You, assign all its rights and obligations under this Agreement.

(22.2)

You may not assign Your rights under this Agreement or otherwise transfer the benefit of this Agreement or a right or remedy under it, without the prior written consent of Maxx Internet.

23.0 Notice


(23.1)

Any notice provided under this Agreement must be provided in writing. For the purposes of this clause, You agree that an e-mail constitutes notice in writing and that an email will be deemed to have been received by You where Maxx Internet sends an email to Your Maxx Internet email address, and Maxx Internet does not receive a delivery failure report for that email.