NBN Services Terms and Conditions
It is agreed that Snapfrozen will supply, and Customer will acquire, Services on the terms and conditions of:
i. These NBN Terms and Conditions and Acceptable Use Policy;
ii. All other Snapfrozen Terms and Conditions.
This document sets out the general terms and conditions that will apply between the Customer and Snapfrozen. The Customer agrees to these terms and conditions when engaging Snapfrozen or Bello Broadband services.
It is agreed as follows:
1 Definitions and Interpretations
In this Agreement the following definitions apply unless the context requires otherwise:
Snapfrozen Equipment means any equipment owned by Snapfrozen and/or provided by Snapfrozen to Customer for use in connection with the Services but does not include Purchased Equipment.
Snapfrozen and/ or Bello Broadband means Snapfrozen Pty Ltd (ABN 571 494 819 25).
Agreement and/ or Terms and Conditions means these Terms and Conditions and the Acceptable Use Policy, any Operations Manuals supplied by Snapfrozen in relation to the Service, and any other document(s) attached to, or subsequently incorporated into, any of those documents.
Billing Dispute means a dispute relating to a Charge and/or an invoice issued by Snapfrozen Pty Ltd.
Business Day means a day on which banks (as defined in the Banking Act 1959 (Cth) are open for general banking business in New South Wales, excluding Saturdays and Sundays.
Charges means the charge(s) in respect of a Service as set out or provided for in any Order(s) for Service as varied from time to time in accordance with this Agreement.
Claim includes any action, claim, claim for compensation, claim for abatement of any obligation (monetary or otherwise), claim for any Cost, Damage, expense, injury, liability and/or loss, counter-claim, demand, proceeding, remedy, right, right of action, set-off and suit and includes any Damage suffered, incurred and/or sustained in connection with any one or more of any of them.
Commencement Date means the date that Customer requested Service(s).
Committed Term means, in respect of a Service or Individual Service, the period from the Service Start Date specified in the Order for Service as the Committed Term. If no period of Committed Term is specified it will be taken to be 3 months from the Service Start Date.
Confidential Information of a party includes this Agreement and all information of a party marked as confidential or which the other party knows or ought reasonably to be aware is confidential (regardless of its form and whether the other party becomes aware of it before, on or after the date of this Agreement) but excludes information that is publicly known other than as a result of a breach of the obligations of confidentiality under this Agreement.
Customer means the entity named as “Customer” or “Client” in Snapfrozen invoice(s) or Proposal, and thus party to this Agreement.
Downgrade means any modification to the Service or an Individual Service which reduces the capacity, use or utility of that Service or Individual Service.
Downgrade Charge means the relevant downgrade charge (if any) calculated in accordance with the Product Pricing offered by Snapfrozen Pty Ltd.
Event of Default occurs where:
(a) Customer fails to pay any sum payable under this Agreement, by the due date for payment shown on invoice(s) from Snapfrozen to Customer;
(b) Customer breaches any provision of this Agreement and the breach is not capable of remedy;
(c) Customer breaches any provision of this Agreement which is capable of remedy and fails to remedy the breach within 7 days of the date of a notice from Snapfrozen demanding that the breach be remedied;
(d) any step is taken (including without limitation, an application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for:
(i) Customer’s winding up, dissolution, or administration; or
(ii) Customer’s entering into any arrangement, compromise or composition with or assignment for the benefit of Customer’s creditors or any class of them,
(iii)Except for the purposes of a solvent reconstruction or amalgamation;
(e) A receiver, receiver and manager, or other controller, administrator or similar officer is appointed with respect to, or takes control of, Customer or any of Customer’s assets and undertakings;
(f) In Snapfrozen.’s reasonable opinion there has been a material adverse change in Customer’s financial position since the Commencement Date including, without limitation, as a result of a change in the value, nature or saleability of Customer’s assets; or
(g) Customer has a Change in Control.
Excluded Event means:
(a) a breach of the Agreement by Customer,
(b) an Intervening Event;
(c) a negligent or fraudulent act or omission of Customer or any of Customer’s Personnel; or
(d) a failure of any of Customer’s equipment.
Force Majeure Event means an event or cause beyond the reasonable control of the party claiming force majeure including, without limitation, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any Intervening Event.
General Terms means the terms set out in this Terms and Conditions, as well as other Snapfrozen Terms and Conditions.
Individual Service means each individual service making up the Service; for example, an individual circuit or connection. For clarity, there may be more than one Individual Service making up the Service.
Insolvency Event means in relation to a party means any of the following events concerning a party, unless the events take place as part of a solvent reconstruction, amalgamation, merger or consolidation:
(a) if an administrator, liquidator, receiver, receiver and manager or other controller (as defined in the Corporations Act) is appointed to, or over, any of the property or undertaking of the party;
(b) if an order is made or an effective resolution is passed for the winding up or dissolution of the party without winding up;
(c) if the party is made bankrupt, declared bankrupt or files a petition for relief under bankruptcy laws;
(d) if the party or the party’s property or undertaking becomes subject to a personal insolvency arrangement under part X Bankruptcy Act or a debt agreement under part IX Bankruptcy Act;
(e) if the party is unable to pay its debts as and when they fall due or other than in the case of a legitimate dispute has stopped or suspended, or threatened to stop or suspend, payment of all or a class of its debts;
(f) if the holder of a Security Interest takes possession of the whole or substantial part of the undertaking or property of the party; or
(g) if any event happens in Australia or any other country or territory in respect of a party that is similar to any of the events or circumstances referred to in this definition.
Intellectual Property Rights means all forms of intellectual property rights which may subsist anywhere in the world, whether protected at common law or under statute, including, without limitation, patents, petty patents and utility marks, rights in designs, trademarks, signs and service marks, trade and business names, copyrights (including rights in
computer software), database rights, semiconductor topography rights and rights in circuit layout designs, whether or not registered and including applications for registration of any such thing.
Intervening Event affecting a person means any event outside that person’s reasonable control, and includes failure or fluctuation in any electrical power supply, failure of air conditioning or humidity control, electromagnetic interference, fire, storm, flood, earthquake, accident, war, labour dispute (other than a dispute solely between that person and its
own staff or staff under its control), materials or labour shortage, the change or introduction of any law or regulation (including the Telecommunications Legislation) or an act or omission of any third party, or any failure of any equipment owned or operated by any third party (including any Regulator, any Supplier or any of their Personnel).
Invoice Amount means the amount showing as due to be paid by the Customer to Snapfrozen for any Services and/or Products provided by Snapfrozen to the Customer in any month or year.
Product Price List means the current published Snapfrozen product prices as shown on the Snapfrozen website, snapfrozen.com.au, as the current fees and charges for services.
Minimum Spend means any minimum spend specified by Snapfrozen or shown in an Order for Service.
OFS Charges means the Charges in the Order(s) for Service that are subject to the Price Review.
Operations Manual means the most recently updated manual made available by Snapfrozen to Customer (by placement on a website or as otherwise determined by Snapfrozen) regarding the operation of the Service(s).
Order has the same meaning as Order for Service.
Order for Service (OFS) means an order for any Service that Customer has submitted to Snapfrozen:
(a) as part of the process of a Project Proposal and Acceptance, in person with a representative of Snapfrozen and signed in person, or in writing on an Snapfrozen Contract and order form signed by Customer which may be sent via email to such email address (as appropriate) as may be notified by Snapfrozen to Customer from time to time; or
(b) electronically via Snapfrozen electronic order entry system in accordance with the procedure specified by Snapfrozen from time to time, and which has been accepted by Snapfrozen, as such Order for Service is amended from time to time in accordance with this Agreement. Personnel of a person, business, or company means that person’s employees, agents, contractors or other representatives and, in the case of Snapfrozen, includes the employees, agents, contractors or other representatives of any of its Related Bodies Corporate.
Premises means locations at which Snapfrozen supplies the Service and locations to which Snapfrozen needs to have access to supply the Service.
Pricing Information means documentary evidence from Snapfrozen that sets out all of the costs (including time length of term) and fees and charges (including one-off, recurring and usage charges) at which Snapfrozen is offering to supply services to the Customer.
Privacy Act means the Privacy Act 1988 (Cth).
Purchased Equipment means any equipment that Customer purchases from Snapfrozen under this Agreement.
Regulator means the Australian Communications Authority, the Australian Competition and Consumer Commission, the Australian Communications Industry Forum Limited, the Telecommunications Industry Ombudsman or any other government or statutory body or authority.
Representative means any director, employee, agent, or contractor of the Customer.
Review Period means, in respect of an Order for Service, the 30 day period preceding the annual anniversary of the date on which the Committed Term commences.
Services means the services and products described in the Order for Service(s).
Service Delivery Point means the point at which a Service is made available for connection to your equipment or cabling.
Service Description means the part of the Product Pricing which describes a Service.
Service Option means certain features and characteristics of a Service which may be selected by Customer and which are described as a ‘Service Option’ (together with any additional terms on which the Service Option is supplied) in the Product Pricing.
Service Start Date for the Service or an Individual Service means the date on which Snapfrozen starts supplying that Service or Individual Service to Customer under the Agreement. For clarity, where an Order for Service is requested by Customer to re-contract an existing Service with Snapfrozen, then the Service Start Date will be deemed to be the date of any order, or where incompatible, it will be deemed to mean the most recently requested Order.
Supplier means any supplier of goods or services (including interconnection services) which are used directly or indirectly by Snapfrozen to supply the Service.
Supplier Network means any telecommunications network, equipment, facilities or cabling controlled by a Supplier.
Telecommunications Act means the Telecommunications Act 1997 (Cth).
Total Monthly Invoice Amount means, in any given month, for any given Services the total dollar amount (as assessed by Snapfrozen in its sole discretion) that is spent in that month on: (i) Services acquired from Snapfrozen by Customer; and (ii) any services that are similar to the Services acquired by Customer or any of its Related Bodies Corporate, directly or indirectly, from any other person (and in making an assessment Snapfrozen may have regard not just to amounts actually spent but also amounts which have or will become payable by Customer or any of its Related Bodies Corporate).
Term means the term of this Agreement as determined in accordance with clause 14.
Agreement means this document titled ‘NBN Terms and Conditions’, as amended from time to time in accordance with this Agreement.
You or you means Customer (and ‘your’ will be construed accordingly).
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) The singular includes the plural and conversely.
(b) A reference to a gender includes all genders.
(c) The word “includes” is not a word of limitation.
(d) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(e) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
(f) A reference to a clause, Description or Annexure is a reference to a clause of, a schedule or an annexure to, this Agreement.
(g) A reference to an agreement or document (including, without limitation, a reference to this Agreement) is to the agreement or document as amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other agreement or document.
(h) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(i) A reference to any party to this Agreement includes its successors or permitted assigns.
(j) A reference to dollars or $ is to Australian currency.
(k) A reference to a “day” or a “month” is a reference to a calendar day or to a calendar month, as applicable.
(l) References to a “quarter” in relation to a quarter year mean a period of 3 months commencing 1 January, 1 April, 1 July or 1 October.
(m) All representations, warranties and indemnities are continuing and survive termination or expiry of this Agreement.
(n) In the event, and to the extent, of any inconsistency or where intended to be a replacement rather than an addition, the most recent Order for Service will prevail over any earlier Order(s) for Service.
2 Payment Terms
2.1 Invoice Payment or Initial Invoice Amount Payment
Customer agrees to provide Snapfrozen with the following in a way satisfactory to Snapfrozen:
An initial payment, to Snapfrozen for the due amount shown on Invoice issued to Client, and punctual performance of Customer’s obligations under this Agreement and in respect of which:
(i) Snapfrozen may set-off any amounts due by the Customer to Snapfrozen in the event that Customer fails to pay such amounts by the due date for payment; and
(ii) Customer will ensure that the original Invoice Amount is restored within 2 Business Days of any set-off by Snapfrozen pursuant to the previous paragraph;
2.2 Payment to be provided promptly
Customer agrees that it will comply with its obligations under clause 2.1 by paying all invoiced by the due date shown, and under this Agreement the Customer acknowledges that Snapfrozen will not be obliged to commence providing Services to Customer until Customer has complied with clause 2.1. And that in the event that Customer does not pay the relevant invoice(s), Snapfrozen may discontinue providing Service.
In the event of an adverse change in Customer’s creditworthiness as identified in a creditworthiness if review by Snapfrozen or an increase in:
(a) the most recent monthly forecast provided to Snapfrozen by Customer;
(b) the number of Services and/or Order for Services executed by the Customer;
(c) Snapfrozen’s estimate of Customer’s likely Charges in the following month; or
(d) Customer’s actual Charges in the previous month,
Customer will provide security (or further security) to that referred to in clause 2.1, within 10 Business Days of receiving a request from Snapfrozen either to provide what Snapfrozen considers to be sufficient additional security, in light of the material adverse change in Customer’s creditworthiness, and/or in order to cover this increase (or likely increase) in Snapfrozen Charges.
2.4 Condition of ongoing provision of Services
(a) The ongoing provision of Services by Snapfrozen under this Agreement is conditional upon:
(i) Customer adherence to Snapfrozen General Terms and Conditions.
(ii) Customer adherence to this Agreement.
(iii) Customer payment of all invoices for the services, by the due date on the invoice.
(b) Snapfrozen reserves and maintains the right to:
(i) modify, change, suspend, limit or disconnect any Service, aspect, feature or functionality of or relating to Services at any time, with notice to Customer as soon as is suitable in Snapfrozen’s opinion.
(ii) Interrupt the availability of all Services from time to time, as and when we deem appropriate for the purpose of maintenance or evaluation.
(iii) Change fees at anytime, immediately following notice.
(iiii) Suspend, disconnect or terminate Services when, in Snapfrozen’s reasonable opinion the Customer has been transmitting, sending, transponding, distributing, receiving, downloading, or uploading illegal material via services provided by Snapfrozen.
(v) disconnect any Service to Customer with a refund of the one (1) relevant months’ Invoice Amount.
2.5 Determining Initial Invoice Amount
In determining the Initial Invoice Amount referred to in clause 2.1, or any other applicable amount that Snapfrozen may request Customer to provide, Snapfrozen will have reference to the total amount of Charges that Customer is likely to incur in the 60 day period following Snapfrozen determination.
2.6 No waiver
If Snapfrozen performs or continues to perform its obligations under this Agreement despite Customer’s noncompliance with any clause of this Agreement, then that performance does not constitute a waiver by Snapfrozen of its rights under this Agreement in relation to any further performance by Snapfrozen.
3.1 Supply of Services
(a) Snapfrozen will make reasonable endeavours to supply the Services to Customer, in accordance with this agreement and the Acceptable Use Policy this Agreement.
(b) Customer will use the Services (and will ensure that End-users use the Services) in accordance with this Agreement and all applicable laws.
(c) Services will be provided until the services are cancelled by either party, as governed by this agreement.
(d) In the provision and/or execution of Services to Customer, Snapfrozen shall not be held responsible or liable for any:
(i) personal injury or loss of life;
(ii) loss of business income, or personal income;
(iii) loss of, or damage to, property.
(e) Snapfrozen liability for damages, and warranties, shall not exceed the Invoice Amount or Total Monthly Invoice Amount for Service(s) to the relevant customer, due in the relevant month.
(f) Abusive behaviour towards Snapfrozen Staff will not be tolerated, and can result in immediate termination of Service(s) without delay.
(g) No life saving or vital equipment may be run on Snapfrozen Service(s) as we cannot assure or guarantee Service provision. Customer indemnifies Snapfrozen for any Customer use of Services in contravention or disregard of this Clause.
(h) Snapfrozen endeavours to be transparent about the internet speeds that could be available to Customer in relation to their Order of Service. However, Snapfrozen does not offer any guarantee in relation to any speed or efficacy of Services.
(i) Where Service uses a Wireless Broadband connection, no internet speed or reliability guarantees can be given.
(j) In order to be able to receive the NBN Fibre Service: (i) your Premises must be connected to the NBN Optical Fibre Access Network; (ii) you must meet all of our System Requirements; (iii) the NBN Co equipment must be installed by NBN Co or a NBN Co approved installer; and (iiii) if using multiple devices, you will require an NBN ready router.
3.2 End-user Contracts
Customer must enter into End-user Contracts with all its End-users on its own account and Customer will be responsible for all billing, collection, and first-line customer support under those End-user Contracts.
3.3 Amendment of this Agreement
(a) Snapfrozen may amend any part of this Agreement at any time where in Snapfrozen’s reasonable opinion the amendment;
(ii) relates to improvements in the Service;
(iii) relates to, but is not limited to, situations where Snapfrozen is acting in the interest of its fiscal, health and safety, or legal obligation to Snapfrozen staff or operations.
(b) If Snapfrozen wishes to amend the terms of this Agreement otherwise than in accordance with clause 3.3(a), Snapfrozen may do so at any time by giving Customer 1 Business Days prior notice (the Amendment Notice Period).
(c) Upon receipt of a notice under clause 3.3(b), Customer may terminate this Agreement or, where the amendment is to be made to one or more Order(s) for Service, the relevant Order(s) for Service by giving not less than 30 Business Days prior notice to Snapfrozen during the Amendment Notice Period. Any such termination must take effect within 30 Business Days of the end of the Amendment Notice Period.
(d) If at the end of the Amendment Notice Period Customer has not elected to terminate this Agreement, or the relevant Order(s) for Service, Customer will be deemed to have accepted the amendment(s) notified to Customer in accordance with clause 3.3(b) and Customer will lose Customer’s right of termination under clause 3.3(c).
3.4 Excessive Data Download or Upload
(a) Excessive use of Service, or excessive use of Data on Service may result in changes in download and upload speeds and internet quality.
(b) Snapfrozen reserves the right to deal with excessive use as deemed necessary by Snapfrozen.
3.5 Residential Customers
(a) Residential Customers can only access or order Snapfrozen Services by way of a referral by a Referrer, or invitation by Snapfrozen. The relevant Referrer shall then be the contact for the Customer in relation to any telephone or in-person support requests or queries.
(b) Residential customers may not use Snapfrozen telephone support, but can lodge Support Tickets with Snapfrozen.
(c) Snapfrozen recommends that all Residential customers should have their telephone line checked for capacity by a suitably qualified tradesman to give an accurate indication of what they can expect in terms of internet speed and availability.
4 Procedures for Placement and Acceptance of Orders
Customer may place an order for Services by contacting Snapfrozen or by submitting an order via the Snapfrozen website, or their Snapfrozen Client Area.
(a) Customer may order additional Services from Snapfrozen by submitting an Order for Service (Additional Order for Service) to Snapfrozen.
(b) An Additional Order for Service constitutes a binding offer from Customer capable of acceptance by Snapfrozen. Snapfrozen will not be required to accept any Order or Additional Order for Service. If for any reason Snapfrozen will not provide the Service in the Additional Order for Service, Snapfrozen will notify Customer within a reasonable period (which notification may be sent by email to Customer).
4.3 Request for additional Service
(a) Customer may order additional Service(s) by submitting an Order to Snapfrozen.
(b) An Order for Additional Service(s) constitutes a binding offer from Customer capable of acceptance by Snapfrozen. Snapfrozen will not be required to accept any Order for Additional Service(s). If for any reason Snapfrozen will not provide the additional Service quantities in the Order for Additional Service(s), Snapfrozen will notify Customer within a reasonable period.
5 Purchased Equipment
5.1 Purchase of equipment from Snapfrozen
Where Customer agrees to buy from Snapfrozen any Purchased Equipment the following provisions will apply:
(a) The Customer must pay the total price for the Purchased Equipment and any installation charges specified in the relevant Order for Service on delivery or on a date specified by Snapfrozen.
(b) Title (both legal and beneficial) in the Purchased Equipment remains with Snapfrozen until Snapfrozen has received from Customer the purchase price for the Purchased Equipment.
(c) Risk in Purchased Equipment passes to Customer on delivery.
(d) Snapfrozen will deliver and install the Purchased Equipment at the locations specified in the Order for Service or as otherwise agreed in writing between the parties.
(e) Snapfrozen will use its reasonable endeavours to transfer any manufacturer’s warranty in respect of the Purchased Equipment to the Customer at the time of the transfer of title in the Purchased Equipment.
(f) Snapfrozen will not be liable in any way for damage to or loss of property, loss of business, loss of income, injury to person or persons, or death of any person or persons that is caused, or attributed to, the function or malfunction of Purchased Equipment.
6 Snapfrozen Equipment
Where Snapfrozen provides Customer with Snapfrozen Equipment, the provisions of clause 6 apply.
6.1 Use of Snapfrozen Equipment
(a) must use Snapfrozen services, Equipment, and Purchased Equipment in accordance with agreed procedures and any directions of Snapfrozen notified to Customer from time to time;
(b) will ensure that the Snapfrozen Equipment is not damaged and remains in good condition;
(c) must notify Snapfrozen promptly on becoming aware of any damage to or malfunction of the Snapfrozen Equipment or that any Snapfrozen Equipment requires maintenance of any kind; and
(d) acknowledge that Snapfrozen may, subject to giving reasonable notice and at Snapfrozen’s cost, change, modify, replace or remove the Snapfrozen Equipment in our absolute discretion, provided such change, modification, replacement or removal does not adversely affect Snapfrozen’s provision of the Services to Customer or Customer’s ability to conduct Customer’s business.
(e) Snapfrozen will not be liable in any way for damage to or loss of property, loss of business, loss of income, injury to person or persons, or death of any person or persons that is caused, or attributed to, the function or malfunction of Snapfrozen Equipment.
6.2 Ownership of Snapfrozen Equipment
If Snapfrozen provides any Snapfrozen Equipment to Customer then:
(a) the Snapfrozen Equipment remains the property of Snapfrozen;
(b) Customer will not enter into any agreement for the transfer, sale, mortgage, granting of any security interest or other dealing in connection with the Snapfrozen Equipment;
(c) Customer will not remove or obscure any identification marks on the Snapfrozen Equipment;
(d) Customer will comply with all reasonable instructions Snapfrozen gives Customer to protect Snapfrozen’s ownership of the Snapfrozen Equipment;
(e) Customer will not part with possession or control of the Snapfrozen Equipment except to provide it to Snapfrozen;
(f) Customer will allow Snapfrozen to and, where applicable, will ensure that Customer’s landlord or any other relevant third party allows Snapfrozen to, enter and remove the Snapfrozen Equipment from Customer’s premises upon expiry or termination of this Agreement; and
(g) Customer will return the Snapfrozen Equipment to Snapfrozen possession as soon as practicable in accordance with any Snapfrozen request to do so where the Snapfrozen Equipment is no longer used by Customer or this Agreement has expired or is terminated.
6.3 Customer’s Responsibilities for Snapfrozen Equipment
(a) it should be in accordance with clause 6.2(e), in Customer’s possession and/or control and Customer indemnifies Snapfrozen in respect of any such loss or damage.
(b) Snapfrozen may charge Customer, in accordance with Snapfrozen’s standard time and material rates and terms, for any repair, maintenance or replacement of Snapfrozen Equipment which is required due to events other than normal wear and tear including, but not limited to:
(i) acts of God (for example, fire or tempest), provided that the charge will be no more than the total cost for any such repair, maintenance or replacement of the Snapfrozen Equipment (as appropriate);
(ii) any negligent act or omission, or act of wilful damage or interference by a party other than Snapfrozen, Snapfrozen’s employees or agents;
(iii) any failure or fluctuation of the electrical power supply to that equipment, or any external electromagnetic interference, or any failure of air conditioning and humidity control for that equipment; or
(iv) the performance of maintenance services by a person other than Snapfrozen.
(c) Subject to Snapfrozen’s compliance with Customer’s reasonable security and access requirements for Customer’s point of presence, Customer will allow Snapfrozen access to the Snapfrozen Equipment during normal business hours (or at such other times as Snapfrozen arranges with Customer) for, among other reasons, maintaining the Snapfrozen Equipment. This right of access will continue until all of the Snapfrozen Equipment is returned to Snapfrozen, even if this Agreement has expired or been terminated.
(d) Customer will ensure that the Snapfrozen Equipment, and any other equipment, facilities and connections which Customer use in connection with receiving the Service(s), is not altered, maintained, repaired or connected to, or disconnected from, any power source or line except by personnel who are able to establish to Customer’s reasonable satisfaction that they have been approved by Snapfrozen to perform the relevant work.
(e) Customer will make available an adequate power supply and environment (including air conditioning) for the operation of any Snapfrozen Equipment used in the provision of the Service(s) at Customer’s points of presence. Where Customer’s point of presence is located inside an Snapfrozen controlled environment, Snapfrozen will make available an adequate power supply for the operation of the relevant Snapfrozen Equipment.
(f) Customer are liable to pay Snapfrozen on demand any cost and/or expenses incurred in repairing or replacing the Snapfrozen Equipment, or other property owned by Snapfrozen or for which Snapfrozen is liable, which is damaged or destroyed as a result of connection to Customer’s network.
(g) Snapfrozen will not be liable in any way for damage to property, loss of business, loss of income, injury to person or persons, or death of any person that is caused, or attributed to, the function or malfunction of Snapfrozen Equiptment.
6.4 Charges in respect of Snapfrozen Equipment
If any charge is payable for Customer’s purchase or use of the Snapfrozen Equipment, Customer will pay that charge in accordance with clause 13 of this Agreement.
7 Authority to execute Order for Service
Customer represents and warrants that:
(a) all of its Representatives are authorised to act on Customer’s behalf in connection with this Agreement, including ordering any Services, additional Services or additional Service quantities; and
(b) all Orders for Service that are signed by a Representative have been executed with authority of Customer.
8 Responsibilities of Snapfrozen
Snapfrozen must provide Customer with reasonable information and assistance in relation to the Service. This assistance will be available to business customers via telephone support during business hours, and 24/7 online support ticket submition.
9 Customer’s obligations
9.1 General obligations
Customer agrees that it will:
(a) provide all information, assistance and cooperation reasonably requested by Snapfrozen;
(b) comply with all reasonable directions given by Snapfrozen in relation to Customer’s obligations under this Agreement;
(c) not do, or permit to be done, any act which damages the reputation of Snapfrozen;
(d) ensure that all equipment that Customer or Customer’s End-users connect to the Snapfrozen Network is adequately maintained and conforms to Australian Communications Authority standards and does not interfere with the operation of the Snapfrozen Network;
(e) ensure that End-user Contracts exclude Snapfrozen (as Customer’s supplier of the Services) from any liability to End-users;
(f) not represent expressly or by omission or implication that Customer are approved by, an agent of, or affiliated with Snapfrozen; and
(g) provide, and ensure End-users or any other relevant persons provide, Snapfrozen and/or our suppliers with full, free and safe access to the relevant premises if required for Snapfrozen and/or our suppliers to repair or restore the Services or the Snapfrozen Network or in order for Snapfrozen to exercise our rights under this Agreement.
9.2 Customer and End-user premises
Customer agrees that in the event that it has any End-users it will:
(a) comply and ensure that its End-users comply with Snapfrozen Acceptable Use Policy as updated by Snapfrozen from time to time (a current version of which is set out in this Agreement);
(b) comply and ensure that its End-users comply with any rules imposed by any third party whose content or services are accessed using the Service or whose network Customer’s data traverses; and
(c) not and ensure that its End-users do not infringe any person’s Intellectual Property Rights.
9.3 Access to Customer or End-user premises
Customer agrees that it will procure safe and prompt access for Snapfrozen (or Snapfrozen’s agents or contractors) to Customer and /or End-user premises:
(a) for Snapfrozen to inspect or test any equipment which may be causing interference with the Snapfrozen Services; and
(b) as required by Snapfrozen in connection with the provision, maintenance and repair of the Services and to enable Snapfrozen to provide the Services in accordance with this Agreement.
9.4 Representations and warranties
Customer must not make any representation or give any warranty in relation to the Services that is inconsistent with written materials supplied by Snapfrozen.
9.5 No delegation
(a) Customer shall not exercise any of its rights or perform any of its obligations under this Agreement through any person other than it and its employees without Snapfrozen’s prior written consent (which shall not be unreasonably withheld or delayed).
(b) Whether or not Snapfrozen has provided its consent as referred to in clause 9.5(a), Customer shall remain responsible for the exercise of Customer’s rights and obligations under this Agreement.
10 Operations Manuals
10.1 Incorporation of Operations Manuals
Customer acknowledges that the Operations Manuals impose a number of obligations on the Customer and Snapfrozen. Customer must use the Services in such a manner and at such times as to enable Snapfrozen to meet its obligations to Snapfrozen’s suppliers. Customer must, unless to do so is inconsistent with this Agreement:
(a) do all such things as are necessary to ensure that Snapfrozen is able to comply with all the obligations imposed on it by the Operations Manuals;
(b) comply with, abide by and give the benefit of all provisions in the Operations Manuals which are relevant to the Services as if the obligations there owed to Snapfrozen’s suppliers by Snapfrozen were owed to Snapfrozen by Customer; and
(c) do all such things as are necessary to enable Snapfrozen to enjoy all its rights under the Operations Manuals
which are relevant to the Services.
10.2 Obligation to stay current
(a) Snapfrozen will make the Operations Manuals available to Customer from time to time, as suits Snapfrozen.
(b) If such a manual exists, Customer must ensure that it reviews and understands the Operations Manual for a Service within 2 days of executing the applicable Order of Service and that it regularly checks the website and reviews any updated Operations Manuals.
(c) If Customer discovers any inconsistency in an Operations Manual it must promptly notify Snapfrozen of its discovery.
(d) Customer acknowledges that the Operations Manuals may be updated or changed from time to time and it agrees to comply with the most currently available versions.
11 Fault Reporting
11.1 Reporting Procedures
(a) Customer must report any faults by lodging a Support Ticket with Snapfrozen or calling 130 0655 722 for support.
(b) The telephone number for reporting all faults is 1300 655 722, or such other number as advised by Snapfrozen from time to time.
(c) Snapfrozen may charge Customer $85 per hour, or at commercial rates, for fault restoration services if Snapfrozen responds to a request from Customer and Snapfrozen is able to demonstrate that:
(i) the failure to provide the Service to Customer or in respect of any End-user was not due to a matter for which Snapfrozen is responsible; and
(ii) the fact that Snapfrozen is not responsible for that matter would have been disclosed upon reasonable investigation by Customer.
Snapfrozen’s restoration obligations do not extend to faults caused by Force Majeure, planned outages or faults in any network component that is not owned by Snapfrozen.
12.1 Privacy Obligations
(a) Customer must comply with Customer’s obligations under the Privacy Act.
(b) Without limitation, Customer must ensure that all personal information of End-users is handled in accordance with the Privacy Act.
(c) Customer will comply with any reasonable direction of Snapfrozen with respect to the collection, use, disclosure, storage and disposal of personal information.
(a) Each party shall comply with all relevant local, State and Commonwealth laws and regulations and any registered industry based codes of practice.
(b) Each party shall comply with the provisions of the Telecommunications Act. In particular, Customer acknowledges that Snapfrozen may be required to disclose information to comply with Part 13 of the Telecommunications Act. In such a case, Snapfrozen will use our reasonable endeavours to advise Customer of the information provided to the enforcement agency.
(c) Each party must provide the assistance that the other party reasonably requires to comply with relevant local,
State, and Commonwealth laws and regulations and any registered industry-based codes of practice.
13.1 Charges for the Services
(a) The Charges payable by Customer for the Services are payable in Australian dollars in accordance with this clause 13.
(b) Customer must pay all Charges (and any other amounts payable in accordance with this Agreement) in Snapfrozen’s invoice by the due date of the invoice. If Customer fails to pay Snapfrozen the Charges (and any other payable amounts) within this period, Customer will pay interest on the outstanding amount. Or Snapfrozen may terminate or suspend the Service until the matter is resolved, to Snapfrozen satisfaction.
(c) In the event the invoice(s) remains unpaid and requires the use off debt collection or a mercantile agency, Customer agrees to indemnify Snapfrozen for all Loss suffered by Snapfrozen under this clause.
(d) Snapfrozen may immediately call on the Invoice Amount to recover any Loss incurred by Snapfrozen due to Customer’s failure to pay by the due date for payment.
(e) Snapfrozen will (in Snapfrozen’s sole discretion) invoice some components of the Charges in arrears and some components in advance.
(f) To the extent that Snapfrozen invoices Charges in advance it will not (without Customer’s prior agreement) invoice for a period of more than a month in advance.
(g) Snapfrozen will usually issue invoices on a monthly billing cycle but Snapfrozen reserves a right to issue invoices on a shorter billing cycle.
(h) Customer warrants that for each month of the Committed Term it will at least incur the Minimum Spend (if any) that is set out in the Order(s) for Service.
(i) Customer agrees that if it does not incur at least the Minimum Spend (if any is stated in the Order(s) for Service), then Snapfrozen may from time to time invoice Customer for any shortfall, in addition to Charges actually incurred and Customer will pay any such Snapfrozen invoice in accordance with this clause 13.
(i) Snapfrozen may charge Customer an additional amount:
(ii) to service, modify, repair or replace the Service or any equipment, as a result of an Excluded Event;
(iii) for installation, if the information Customer provided to Snapfrozen to determine the installation required was incomplete or inaccurate; or
(iv) for installation, maintenance or other services that Customer requests Snapfrozen to provide outside normal business hours (Sydney time).
Customer must pay all amounts owing by Customer under this Agreement by credit card or Paypal, or other methods indicated on the invoice issued by Snapfrozen, and without set-off, counterclaim or deduction. Payments by some credit cards may only be made with Snapfrozen’s prior written approval and will incur an additional processing fee of 1.5% of any amounts paid.
(a) All Charges quoted for supplies made or to be made under this Agreement are exclusive of GST.
(b) If GST is applicable to any supplies made by Snapfrozen under this Agreement, it is entitled to add to the amount otherwise payable, an additional amount equal to the applicable GST.
(c) Customer agrees to pay Snapfrozen such GST charge in the same manner and at the same time as the payment for that supply.
(d) Snapfrozen will issue Customer with a tax invoice which enables Customer, if permitted by the GST law, to claim a credit or refund of GST in respect of each taxable supply made by Snapfrozen to Customer under this Agreement.
13.4 Disputed invoices
(a) In the event of a Billing Dispute, Customer may, in accordance with clause 13.5, invoke the dispute resolution mechanism in this clause 13.4.
(b) Customer must pay the invoice containing the Charge that is being disputed in full in accordance with this Agreement and Snapfrozen is not obliged to accept a notice of a Billing Dispute in relation to an invoice unless Customer has paid it in full.
(c) Snapfrozen will investigate a Billing Dispute following receipt of a Billing Dispute Notice in accordance with clause 13.5, and will report to Customer after such investigation.
13.5 Billing Dispute Notice
(a) Customer must notify Snapfrozen of any Billing Dispute within 30 days of the date of receipt of the invoice to which the dispute relates (in relation to which time is of the essence) by submitting a completed Billing Dispute Notice electronically via Snapfrozen’s Electronic Ticket System.
(b) Customer may be requested to provide further details of Customer’s Billing Dispute to Snapfrozen in accordance with a notice in writing provided to Customer by Snapfrozen
13.6 Failure to notify Snapfrozen
In the event that Customer does not:
(a) notify Snapfrozen of a Billing Dispute within the time period specified in clause 13.5; or
(b) provide requested additional information to Snapfrozen within 14 days of receipt of Snapfrozen’s request for further information; or
(c) pay all amounts (including any disputed amounts) in the invoice to which the Billing Dispute relates by the due date, then all amounts in the invoice to which the Billing Dispute relates will be deemed to be agreed and accepted by Customer and acknowledged as a debt immediately due and payable by Customer.
14 Term, Termination and Cancelation
14.1 Accrued Rights
Termination or expiry of this Agreement will not affect the rights or remedies accrued by either party prior to termination or expiry (as the case may be).
14.2 Term of the Agreement
This Agreement will commence on the Service Commencement Date and continue to remain in effect until terminated in accordance with clause 14 of this Agreement.
14.3 Term of Services Agreement
(a) The Services Agreement will commence on the Commencement Date and will continue to remain in effect unless terminated in accordance with clause 14 of this Agreement.
(b) Either party may terminate this agreement by written notice to the other party if:
(i) in the reasonable opinion of either party, the other party is in breach of its obligations under this agreement and fails to remedy that breach within 14 days of being requested in writing by the other party to do so;
(ii) an order is made to wind up either party or either party goes into liquidation whether voluntarily or otherwise;
(iii) either party is dissolved, whether by statute or otherwise;
(iv) either party makes an assignment for the benefit of, or enters into an arrangement or composition with, its creditors or has an administrator appointed.
14.4 Term of individual Orders for Service
(a) In respect of any Order for Service which specifies the relevant Committed Term, such Order for Service will remain in effect for the Committed Term and, unless otherwise stated in the applicable Order for Service, will be automatically renewed for successive periods of one month each (each a Further Period) unless and until terminated by either party according to the terms of Agreement.
(i) Customer can cancel or terminate the Service by giving Snapfrozen written notice of termination not less than 30 days prior to the expiry of the Committed Term or Further Period (as applicable); or
(ii) otherwise in accordance with this clause 14.
14.5 Termination by Customer
Customer may terminate a Service on written notice to Snapfrozen, in accordance with the terms of the Order of Service. Or if Snapfrozen materially breaches this Agreement in relation to that Service and fails to remedy the breach within 14 days of receipt of written notice from Customer requiring the breach to be remedied.
14.6 Termination or suspension by Snapfrozen
(i) Customer commits an Event of Default;
(ii) Any condition listed in clause 2.1 is not satisfied within 14 days of the date of this Agreement;
(iii) Customer is affected by an Insolvency Event;
(iv) Snapfrozen believes it is necessary to do so to comply with any law, to protect any person, equipment or the Snapfrozen Network and/or to attend to any emergency; or
(v) A Force Majeure Event prevents either party from performing all or substantially all of its obligations under this Agreement (other than an obligation to pay money) for a period exceeding 1 month, then Snapfrozen may, without prejudice to its other rights and remedies limit or suspend the supply of any Service temporarily or permanently without giving Customer prior notice.
(b) Without prejudice to its other rights and remedies, if any of the matters listed in clause 14.6(a) occurs, Snapfrozen may also immediately terminate this Agreement (including all Order(s) for Service) by notice in writing
(i) Snapfrozen is unable to supply, or continue to supply, Customer with the Services due to the cancellation, suspension or termination of any agreement with our suppliers, for whatever reason; or
(ii) Snapfrozen is unable to supply, or continue to supply, Customer with the Services for whatever reason (for example, due to geographical coverage, capacity or technical capability limitations), then Snapfrozen may in its absolute discretion, upon giving Customer as much notice as is reasonably possible in the circumstances, cease, limit or suspend the supply of any Service temporarily or permanently or terminate the relevant Order(s) for Service, as applicable.
14.7 Terminate a Service
For the purposes of this clause 14, a reference to “terminate a Service” is a reference to the termination of any Order(s) for Service.
14.8 Cancellation of Service by Customer
Customer can cancel their ordered service following the initial 3 month Committed Term.
15 Consequences of Termination
15.1 Use and return of confidential information
On termination of this Agreement, Customer must immediately discontinue use of and return to Snapfrozen all Confidential Information of Snapfrozen including, but not limited to, any manuals and any other materials in any form furnished to Customer by Snapfrozen.
15.2 Cancellation charges
(a) Customer acknowledges that it will be liable to pay Snapfrozen cancellation charges (Cancellation Charges) if:
(i) Customer terminates a Service otherwise than in accordance with clause 14.5;
(ii) Snapfrozen exercises any of its rights under clause 14.6(a) (i) or (ii) of the Agreement.
(b) Cancellation Charges will be a reasonable estimate of Snapfrozen’s likely financial loss (as notified by Snapfrozen to Customer) arising from termination of a Service and/or Individual Service before the end of the applicable Committed Term.
16.1 Mutual Warranties
Each party represents and warrants to the other party that:
(a) it has full power and all necessary rights to enter into this Agreement and to perform its obligations according to the terms of this Agreement; and
(b) none of the following has occurred nor is subsisting or threatened:
(i) the appointment of an administrator to the party;
(ii) any step taken (including, without limitation, an application or order made, proceedings commenced, a resolution passed or proposed in a notice of meeting) for:
(i) the winding up, dissolution, or administration of the party; or
(ii) the party entering into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
(iii) the party being (or taken to be under applicable legislation) unable to pay its debts, other than as the result of a failure to pay or a debt or claim the subject of a good faith dispute;
(iv) the party stopping or suspending, or threatening to stop or suspend, payment of all or a class of its debts; or
(v) the appointment of a receiver, receiver and manager, administrator, receiver or similar officer to any of the assets and undertakings of the party.
16.2 Customer’s End-users
Customer warrants that Customer’s End-users are the customers of and are contracted to Customer and, in relation to the Services, are not the customers of any other party, including any of Customer’s Related Bodies Corporate, and that Customer will not transfer those End-users to any other party for the term of this Agreement without the prior written consent of Snapfrozen.
17 Liability and Indemnity
(a) Customer indemnifies Snapfrozen and its Related Bodies Corporate, and will keep Snapfrozen and its Related Bodies Corporate fully indemnified, from and against any losses, damages, costs and/or expenses (including legal costs assessed on a solicitor client basis) which Snapfrozen and/or its Related Bodies Corporate may suffer or incur arising out of or in connection with an action or claim brought by a third party against Snapfrozen and/or its Related Bodies Corporate which relates to Customer’s (or any of Customer’s End-users’) use or misuse of the Service(s) including, without limitation, as a result of:
(i) the transmission of any illegal, fraudulent or offensive material by Customer (or any of Customer’s End-users);
(ii) any breach of this Agreement by Customer; or
(iii) any wilful, unlawful or negligent act or omission of Customer (or any of Customer’s End-users).
(b) Snapfrozen does not warrant that the Services will be free of interruptions, delays, faults or errors.
(c) All terms, conditions and/or warranties that may be implied into this Agreement, statutory and otherwise, relating to the provision of the Services by Snapfrozen are excluded to the fullest extent permitted by law.
(d) Snapfrozen’s liability for breach of any term, condition or warranty, or under any remedy implied by law, which cannot be lawfully excluded, will be:
(i) limited (if permitted by law), at Snapfrozen’s option, to the repair or re-supply of equipment or Services or the payment of the cost of having the equipment or Services re-supplied; and
(ii) reduced to the extent that such liability is caused by Customer’s negligent acts and/or omissions and/or a breach by Customer of the terms of this Agreement.
(e) The aggregate liability of Snapfrozen and its Related Bodies Corporate for all direct, indirect and consequential losses, damages, costs, expenses, actions and claims arising out of, or otherwise in connection with, this Agreement, whether based on an action or claim in contract, equity, negligence, intended conduct, tort or otherwise, is limited to the total fees paid by Customer for the affected Service(s) in the 1 months preceding the relevant cause of action accruing or, if there are more than one, the last cause of action accruing.
(f) Snapfrozen has no liability to Customer, any of Customer’s End-users or to any other person, for:
(i) the acts or omissions of any third party, including the suppliers which have been engaged by Snapfrozen for the purpose of supplying or maintaining a Service supplied to Customer under this Agreement;
(ii) faults or defects in Services which are caused by Customer’s own conduct or misuse or the conduct or misuse of Customer’s End-users;
(iii) faults or defects that arise in telecommunication services provided to Customer other than under this Agreement (even if they are connected with Snapfrozen’s consent to Services which Snapfrozen has supplied under this Agreement);
(iv) any loss of revenue or profits, loss of data, loss of bargain and damage to reputation or for any form of indirect or consequential loss, whether in respect of breach of contract, equity, negligence, intended conduct, tort or otherwise, arising out of, or in connection with, the provision of the Services or this Agreement;
(v) faults or defects in the Services that arise due to equipment or cabling owned or leased by Customer or an End-user or otherwise in Customer’s control or Customer’s End-users’ control; or
(vi) faults or defects in the Services that arise due to failure by Customer or any third party to appropriately maintain any equipment or cabling relevant to the supply of the Services.
(g) Customer agrees to indemnify Snapfrozen for all losses,liabilities, damages, costs and expenses (including without limitation reasonable legal fees) that we may suffer or incur arising out of or relating to your use or misuse of Snapfrozen Services or breach of this Terms of Service, or in respect of any claim made or legal or regulatory action brought against us arising out of or relating to your conduct or your use or misuse of Snapfrozen Services or breach of this Agreement.
18 Confidential Information
18.1 Obligation of non-disclosure
(a) Confidential Information must not be disclosed to any third party without the prior written consent of the other party; and
(b) no party will, without the prior written consent of the other party, whether during or after expiry of this Agreement, use any of the other party’s Confidential Information for any purpose.
Subject to this clause, no announcement or communication of any kind relating to the negotiations of the Parties or the subject matter or terms of this Agreement will be made or authorised by or on behalf of any Party without the prior written approval of each of the other Parties unless that announcement or communication is required to be made by law. In any event no communication of any kind may be released without giving either Party sufficient opportunity to review and comment on the communication.
The obligations of confidentiality under this Agreement do not extend to information that (whether before or after this Agreement is executed):
(a) is disclosed to a Party (Recipient) under this Agreement, but at the time of disclosure is rightfully known to or in the possession or control of the Recipient and not subject to an obligation of confidentiality on the recipient;
(b) is public knowledge (otherwise than as a result of a breach of this Agreement or any other obligation or confidence); or
(c) is required by law or by the rules of a stock exchange to be disclosed and the Recipient required to make the disclosure has taken all reasonable steps to oppose or prevent the disclosure and to limit, as far as reasonably possible and in consultation with the other Parties, the extent of the disclosure.
19 Intellectual Property Rights
19.1 Ownership of Intellectual Property Rights
(a) All Intellectual Property Rights which are owned by either party as at the date of this Agreement will at all times remain owned by that party exclusively.
(b) Except as otherwise agreed between the parties in writing, nothing in this Agreement confers on Customer any right or interest in, or licence to use, any of Snapfrozen’s or any third party’s Intellectual Property Rights.
19.2 Developments to Intellectual Property Rights
(a) All rights in any improvements or developments to, or adaptations or modifications of, any of Snapfrozen’s Intellectual Property Rights created as a result of either party’s performance of its obligations under this Agreement will be the sole property of Snapfrozen. At the request of Snapfrozen, Customer will do anything that may be reasonably necessary to vest such rights in Snapfrozen.
(b) Subject to clause 19.2(a), any Intellectual Property Rights created as a result of either party’s performance of its obligations under this Agreement, including as a result of improvements or developments to, or adaptations or modifications of, Intellectual Property Rights of that party already in existence as at the Commencement Date, will be owned by the party which created that Intellectual Property Rights unless the parties agree otherwise in writing.
19.3 Joint Intellectual Property Rights
If, during the term of this Agreement, the parties develop or are likely to develop any Intellectual Property Rights jointly,
they will discuss in good faith and agree in writing arrangements governing each party’s ownership and use rights in
respect of such jointly developed Intellectual Property Rights.
20 Software License and Rights
During the term of the Agreement, Snapfrozen grants Customer a non-transferable, nonexclusive license to use Snapfrozen proprietary software provided to Customer by Snapfrozen (Software) in object code form only, in conjunction with the Services.
20.2 Proprietary Rights
This Agreement does not transfer to Customer any title nor any proprietary or intellectual property rights to the Software, documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the rights expressly granted herein.
20.3 Licence Restrictions
Customer agrees that it will not itself, or through any parent, subsidiary, affiliate, agent or other third party: copy the Software except as expressly allowed under this Agreement. In the event Customer makes any copies of the Software as allowed under this Agreement, Customer shall reproduce all proprietary notices of Snapfrozen on any such copies. Customer shall not under any circumstances: reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Software; sell, lease, license or sublicense the Software or the documentation; write or develop any derivative software or any other software program based upon the Software or any Confidential Information; or use the Software to provide processing services to third parties, or otherwise use the Software on a ‘service bureau’ basis.
20.4 Suspension or restriction of Licence
Snapfrozen may suspend or restrict Customer’s rights to use Software by giving Customer 14 days written notice of such suspension or restriction.
21 Force Majeure Event
(a) Neither party shall be liable for any default or delay in the performance of its obligations under this Agreement (other than an obligation to pay money) which is due to a Force Majeure Event.
(b) Any party who is, by reason of a Force Majeure Event, unable to perform any of its obligations under this Agreement (other than an obligation to pay money) must notify the other party as soon as possible, specifying in reasonable detail the circumstances causing such delay and the measures that party proposes to implement to remedy the Force Majeure Event.
(c) Subject to the non-performing party complying with this clause 21, that party will be excused from further performance or observance of the obligations affected by the Force Majeure Event (other than an obligation to pay money) for as long as the Force Majeure Event continues or prevails.
22 Dispute Resolution
(a) If any dispute or difference arises between the parties out of, or in connection with, the Services or the performance of a party’s obligations under this Agreement (excluding the parties’ obligations of confidentiality), the disputing party must give the other party written notice of such dispute within 30 days. The parties agree that they will make every reasonable effort to resolve the difference in a commercially reasonable and amicable way within 20 days of receipt of the notice of dispute by the non-disputing party under this clause.
(b) If resolution cannot be reached under clause 22(a), a meeting will be held within 15 days of the end of the period referred to in clause 22(a) between the relevant managers of the parties with the purpose of agreeing on appropriate corrective actions to be implemented within an agreed timeframe (which is not to exceed 30 days).
(c) If resolution cannot be reached under clause 22(b), a meeting will be held within 15 days of the end of the period referred to in clause 22(b) between the respective Chief Executive Officer (or his or her delegate) of each party with the purpose of agreeing appropriate corrective actions to be implemented within an agreed timeframe (which is not to exceed 30 days).
(d) If resolution cannot be reached under clause 22(c), either party may exercise its rights at law.
(e) If Customer has failed to pay any amount, including a disputed amount, owed to Snapfrozen under this Agreement, Snapfrozen may take such steps as it considers appropriate (including to commence court proceedings or seek urgent interlocutory relief) without complying with this clause.
(f) All disputes shall be dealt with exclusively in the Coffs Harbour region of New South Wales.
23 Assignment of Customer’s Business
Customer must not assign, charge or deal with any of Customer’s rights and obligations under this Agreement, or attempt or purport to do so, without the prior written consent of Snapfrozen. The consent of Snapfrozen may be withheld acting reasonably and having regard to all relevant factors including, without limitation, the following:
(a) there must be no subsisting breach of any of Customer’s obligations under this Agreement;
(b) the proposed assignee must be reputable, responsible, financially sound in Snapfrozen’s opinion and meet
Snapfrozen’s other requirements of Snapfrozen’s resellers at that time;
(c) if the proposed assignee is a company, the directors of that company must execute in favour of Snapfrozen such form of guarantee and indemnity in respect of the obligations of the company as Snapfrozen requires;
(d) the proposed assignee, and any guarantor of its liabilities, must execute a replacement wholesale agreement;
(e) if Customer are indebted or liable to Snapfrozen on any account, Customer must give effect to any arrangements required by Snapfrozen for the payment and satisfaction of that indebtedness or liability prior to the date of assignment.
24.1 All Notices
Any notice, consent, approval or other communication required or permitted under this Agreement (each Notice), excluding Billing Dispute Notices in accordance with clause 13.5, must:
(a) be in writing;
(b) be delivered by personal service, email or by registered mail, addressed to the recipients’ address, or to any alternative address notified by either party; and
(c) absent proof of delivery to the contrary, be deemed to have been received at the following times:
(i) if served personally, on the date of service;
(ii) if sent by email, on the date the email was sent; and
(iii)if sent by prepaid registered mail, 3 Business Days after the date of posting.
25.1 No Agency or Partnership
This Agreement does not constitute any party the agent of the other party or imply that the parties intend constituting a partnership, joint venture or other form of association in which any party may be liable for the acts or omissions of the other party. Neither party has authority to pledge the credit of the other party.
25.2 No waiver
No failure to exercise and no delay in exercising any right, power or remedy under this Agreement will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy under this Agreement preclude any other or further exercise of that or any other right, power or remedy.
25.3 Snapfrozen Assignment and Sub-contracting
(a) Snapfrozen may sub-contract any of our obligations, or any part of our obligations, under this Agreement without Customer’s consent.
(b) Snapfrozen may assign any of our obligations, or any part of our obligations, under this Agreement to any of our Related Bodies Corporate without Customer’s consent.
25.4 Further Assurances
Each party shall take all steps, execute all documents and do everything reasonably required by the other party to give effect to any of the transactions contemplated by this Agreement.
25.5 Severability of Provisions
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction is ineffective in that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Agreement or affect the validity or enforceability of that provision in any other jurisdiction. If any provision or part thereof of this Agreement is made ineffective any jurisdiction in accordance with this clause 25.5, then that provision shall be replaced, to the extent legally possible, with a legal, enforceable, and valid provision that is similar in tenor to the ineffective provision.
Except as expressly provided for in this Agreement, this Agreement may be amended only by Snapfrozen, or by another agreement executed by all parties.
Any provisions of this Agreement which in order to give effect to their meaning, or to protect the legitimate interests of either party, need to survive its termination will survive termination of this Agreement.
25.8 Entire Agreement
This Agreement contains the entire agreement between the parties with respect to its subject matter. This Agreement sets out the only conduct, warranties and representations relied on by the parties and supersedes all earlier conduct, warranties and representations by the parties with respect to its subject matter.
Snapfrozen may, without prior notice to Customer, set-off any amount owing by Customer (or any of Customer’s Related Bodies Corporate) to Snapfrozen under or in respect of this Agreement and/or on any other account against any liability of Snapfrozen to Customer (or any of Customer’s Related Bodies Corporate) whether under or in respect of this Agreement or on any other account. Customer is not, at any time, except as permitted by law, entitled to any right of set-off against Snapfrozen.
25.10 Governing Law
(a) This Agreement is governed by and takes effect and will be construed in accordance with the laws of New South Wales and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of New South Wales and courts entitled to hear appeals therefrom.
Annexure A – Snapfrozen Acceptable Use Policy
The Snapfrozen Acceptable Use Policy is set out below. Please read it carefully.
1. Key Points
1.1 This Acceptable Use Policy (AUP) applies to the use of Snapfrozen Services.
1.2 Your use of the Service is subject to the following rules and guidelines contained in this AUP. Words used in this AUP that have special definitions are given capital letters. The definitions are set out in Section 10.
1.3 This AUP is designed to ensure that your use of the Service does not break any laws, hinder the efficient operation of the Snapfrozen Network, interfere with the rights of Snapfrozen customers, or interfere more generally with the rights of Internet users.
1.4 You are responsible for ensuring that the use of the Service through your Snapfrozen account complies with this AUP. You are also responsible for any use of the Service even for example, if it was committed, with or without your consent, by a friend, family member, guest, employee or customer who gains access to your Snapfrozen account.
1.5 Snapfrozen may amend this AUP from time to time by giving you notice. Snapfrozen may notify you, and you hereby consent to Snapfrozen sending you notices in such a way, by using one or more of the following methods:
a. mail (to the last address you have given Snapfrozen);
b. email (to your Primary Email Address) or;
c. notice on the Snapfrozen website (www.2sgwholesale.com.au).
You should consult this document regularly to ensure that your activities conform to the most recent version.
1.6 In the event of a conflict between the term(s) of any Customer Terms and this AUP, the term(s) of the AUP will govern.
1.7 The consequences of violation of this AUP are prescribed in Section 9 of this AUP, and include the right for 2SG
Wholesale to immediately cancel the provision of the Service.
1.8 Complaints of violations of this AUP by other Snapfrozen users can be directed to customer support at firstname.lastname@example.org.
2. Illegal Activity
2.1 You must not use the Service for any activity that breaches any law or violates any local, state, federal or international law, order or regulation. Prohibited activities include, but are not limited to:
a. Posting, disseminating or in some cases accessing material which is unlawful. This includes material that is or would be classified RC or X and includes material that is or would be classified R where a Restricted Access System, which complies with the criteria determined by the Australian Broadcast Authority (www.aba.gov.au), is not in place. R, RC and X content includes but is not limited to:
(i) Material containing detailed instruction in crime, violence or drug use; child pornography; bestiality; excessive violence or sexual violence; real depictions of actual sexual activity; obscene material.
(ii) Content hosted in Australia which is classified R and not subject to a Restricted Access System. R rated Content includes but is not limited to material containing excessive and/or sexual violence; implied or
simulated sexual activity; or materials which deal with issues or contains depictions that requires an adult perspective.
(iii) Posting or disseminating material which violates the copyright or other intellectual property rights of others.
You assume all risks regarding the determination of whether material is in the public domain.
b. Posting or disseminating material that defames, harasses or abuses anyone or violates their privacy.
c. Pyramid or other illegal soliciting schemes.
d. Any fraudulent activities, including impersonating any person or entity or forging anyone else’s digital or manual signature.
3.1 You are responsible for any misuse of the Service, as indicated in Section 1.3, therefore you must take reasonable steps to ensure that others do not gain unauthorised access to the Service through your account.
3.2 The Service must not be used to obtain or attempt to obtain unauthorised access to any computer, system or network. If you do not have authorisation, prohibited activities include, but are not limited to:
a. accessing, monitoring or using any data, systems or networks;
b. probing, scanning or testing the vulnerability of a system or network;
c. breaching any security or authentication measures for a system or network;
d. accessing the account or private information of any other user;
e. accessing any server in violation of any acceptable use policy of that server, including any attempt to do any of the things mentioned in a. to e. above.
3.3 Use (or attempts to use) or distribution of tools designed for compromising security (such as password guessing programs, cracking tools, packet sniffers or network probing tools) is prohibited. The transmission or dissemination of any information or software, which contains a virus or other harmful feature, also is prohibited.
3.4 You must not use (or attempt to use) the Service in a manner that may interfere with the technical operation of the Service or any other computer, system, network or telecommunications services, including, but not limited to denial of service attacks, flooding of a network, overloading a service, improper seizing and abuse of operator privileges and attempts to “crash” a host. You must not interfere (or attempt to interfere) with the regular workings of Snapfrozen’s systems or network connections.
3.5 You are solely responsible for the security of any device you choose to connect to the Service, including any data stored on that device.
3.6 Snapfrozen recommends against enabling file or printer sharing of any sort. Snapfrozen recommends that any files or services you do choose to make available for remote access be protected with a strong password or as otherwise appropriate to prevent unauthorised access.
3.7 You must notify Snapfrozen immediately of any unauthorised or attempted unauthorised use of your Service and any other breach or attempted breach of security.
4. Risks of the Internet
4.1 There are a number of activities that you can perform when accessing the Internet that may be harmful or cause loss to you, others that may access your service, or your equipment. Typical activities include but are not limited to the following:
a. Downloading Content from the Internet which may introduce viruses or other harmful features to your computer;
b. Purchasing goods or services using the Internet;
c. Transmitting confidential information over the Internet (such as your credit card number or other personal information);
d. Accessing and viewing Content on the Internet or otherwise available through the Service that may be offensive
to some individuals, or inappropriate for children. For example, it is possible to obtain access to Content that is
pornographic, offensive and/or unsuitable for children.
4.2 You must bear all risk associated with the activities referred to in Section 4.1 above, and Snapfrozen shall have no liability for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such activities.
4.3 Parents may minimise the risk of accessing illegal or offensive Content as well as manage children’s use of the Internet by using a Filtering Solution. The Internet Industry Association (www.iia.net.au) provides a list of approved Filtering Solutions. Snapfrozen will provide access to one or more of these Filtering Solutions at a reasonable cost to you as part of the Service.
4.4 You have the right to make complaints to the Australian Broadcasting Authority about Internet Content which is or would be rated X or RC, or R and does not have a Restricted Access System in place.
5. Content Publishing
5.1 You are solely responsible for any Content that you publish via websites, email, newsgroups or other publishing mediums accessed via the Service. You must not publish via websites, email, newsgroups or other publishing mediums accessible via the Service material that is or would be RC or X (Section 2.1a above). You must take appropriate precautions to prevent minors from receiving your Content that may be inappropriate for them. This includes implementing a Restricted Access System on Content that is or would be rated R by the classification Board.
5.2 Snapfrozen reserves the right to refuse to post or to remove any information or materials, in whole or in part, that it, in its sole discretion, deems to be offensive, indecent, or otherwise inappropriate regardless of whether such material or its dissemination is unlawful. This includes, but is not limited to: obscene material, fraudulent or deceptive statements, threatening, intimidating or harassing statements, or material which violates the privacy rights or property rights of others (copyrights or trademarks, for example) or is likely to be defamatory of another person.
5.3 Commonwealth legislation allows the Australian Broadcasting Authority to direct Snapfrozen to remove certain prohibited or potentially prohibited Content from its servers or to prevent users from accessing certain Internet Content. Snapfrozen may take any steps necessary in order to ensure compliance with any relevant industry code of practice, or notification or direction from the Australian Broadcasting Authority, including removing any Content (including part or all of a website) from its servers, closing or suspending your account, filtering the Internet Content made available to you or restricting access to a particular website. Snapfrozen may take these steps at any time and without notice to you.
5.4 Snapfrozen reserves the right to discontinue access to any Usenet newsgroup from a Usenet news feed provided by Snapfrozen at any time and for any reason.
5.5 Snapfrozen is under no obligation to monitor transmissions or published content on the Service. However, Snapfrozen or its agents have the right to monitor such transmissions or published Content from time to time and to disclose the same in accordance with the Customer Terms.
5.6 By using the Service to reproduce, publish, display, transmit or distribute Content, a user is warranting that the Content complies with this AUP and authorises Snapfrozen or their agents to reproduce, publish, display, transmit and distribute such Content as necessary for Snapfrozen to deliver the Content in a timely manner.
6. Electronic Messaging
6.1 Electronic Messaging includes all forms of electronic communications to other individuals including email, instant messaging, Web to SMS, Internet chat, and online forums.
6.2 The Service must not be used to send bulk and/or unsolicited messages. This includes, but is not limited to commercial advertising, informational announcements, charity requests, and petitions for signatures, chain letters and political or religious messages. Such messages must only be sent to those individuals who have explicitly requested it.
6.3 The Service must not be used to send messages to any individual who has indicated that he/she does not wish to receive messages from you.
6.4 The Service may not be used to collect or redirect responses from unsolicited email sent from accounts on other Internet hosts or email services which violates this AUP or the equivalent AUP or policy of any other Internet service provider or website. Moreover, unsolicited messages may not direct the recipient to any website or other resource that uses the Snapfrozen Network.
6.5 Obscuring, altering or deleting the source of messages that you send or forging message headers is prohibited.
6.6 Sending numerous copies of the same or substantially similar messages, or sending very large messages or files, to a recipient with the intent to disrupt a server or account is prohibited (i.e. “Mail bombing”).
6.7 The propagation of chain letters is similarly prohibited, whether or not the recipient wishes to receive such
6.8 Snapfrozen is not responsible for the forwarding of email sent to any account that has been suspended or cancelled. Such email may be returned to sender, ignored, deleted, or stored temporarily at the sole discretion of Snapfrozen.
7. Online Forums
7.1 There are forums accessible on the Internet that are generally devoted to the discussion of a specific topic areaand include, but are not limited to, newsgroups, message boards, chat rooms or mailing lists (“ Online Forums”).
The following rules are in addition to those in Section 0 for Electronic Messaging.
7.2 Messages posted to Online Forums must comply with the written charters for those forums. You are responsible for determining the policies of a given forum before posting to it. Binary files may only be posted to Online Forums that are specifically established for that purpose.
7.3 Posting or cross-posting the same or substantially similar messages to more than eight Online Forums is prohibited.
7.4 You must not disrupt or attempt to disrupt Online Forums by posting a large number of messages that contain no substantive content. Disruption occurs when normal discussion in the group is significantly hindered.
7.5 You must not use the Service to connect to an Online Forum from which you have been previously banned.
8. Automated Applications
8.1 The Service is provided for interactive use. However, if automated programs or programs that maintain a persistent connection to a remote service are used, they must only be used when you are physically present at the computer. These activities include but are not limited to automated Download software, IRC “bots”, continuous streaming media and peer-to-peer file sharing applications.
9. Violation of Acceptable Use Policy
9.1 If the Service is used by you or by someone with access to the Service through your account, in a way that Snapfrozen , in its sole discretion, believes violates this AUP or the Customer Terms, Snapfrozen may take any responsive action it deems appropriate.
9.2 Such actions may include, but are not limited to, temporary or permanent removal of Content, cancellation of newsgroup posts, filtering of Internet transmissions, and the immediate suspension or cancellation of all or any portion of the Service.
9.3 Snapfrozen has no liability for any such responsive actions and may take any other legal or technical action it deems appropriate, including taking action against offenders to recover the costs and expenses of identifying them. If your use of the service causes a loss to third parties, Snapfrozen may require you to pay compensation.
9.4 Snapfrozen is not obligated to regularly monitor your usage of the Service (including any Content posted, disseminated or accessed by you), however Snapfrozen reserves the right to monitor your use of the Service to identify violations of this AUP, and to protect the Snapfrozen Network and other users of this Service.
9.5 Snapfrozen reserves the right to investigate suspected violations of this Policy, including the gathering of information from the user or users involved and the complaining party, if any, and examination of material on Snapfrozen’s servers and network. During an investigation, Snapfrozen may suspend the account or accounts involved and/or remove material that potentially violates this Policy.
9.6 In order to enforce this AUP, you hereby authorise Snapfrozen or their agents, to cooperate with:
a. law enforcement authorities in the investigation of suspected criminal violations, and
b. system administrators at other Internet service providers or other network or computing facilities
9.7 Such cooperation may include Snapfrozen providing the username, IP address, or other identifying information about a user. Upon cancellation of an account, Snapfrozen is authorised to delete any files, programs, data and email messages associated with such account.
9.8 The failure of Snapfrozen to enforce this AUP, for whatever reason, shall not be construed as a waiver of any right to do so at any time. You agree that, if any portion of this AUP is held invalid or unenforceable, that portion will be construed consistent with applicable law as nearly as possible, and the remaining portions will remain in full force and effect.
9.9 This AUP is governed by the laws of the state of New South Wales. You agree to submit to the non-exclusive jurisdiction of the courts of that state.
AUP/Acceptable Use Policy – means the Snapfrozen Acceptable Use Policy prescribing the rules and guidelines which you must comply with in using the Services.
Australian Broadcasting Authority (ABA) – means the regulatory authority established by the Broadcasting Services Act 1992. For information about the regulatory regime applying to online Content go to www.aba.gov.au.
Content – means all forms of communication including narrative descriptions, graphics (including photographs, illustrations, images, drawings and logos), executable programs, video recordings and audio recordings.
Customer Terms – means the terms of the Snapfrozen standard Form of Agreement on which the individual user contracts with Snapfrozen for the Service.
Download / Downstream – means data moving from the Snapfrozen Network to your modem or connected device.
Filtering Solution – means Internet filtering software or system approved for use under the IIA Codes.
IIA Codes – means the Internet Industry Codes of Practice registered under the Broadcasting Services Act 1992 (see
Snapfrozen– means Snapfrozen Pty Limited and/or its distribution affiliates.
Snapfrozen Network – means the network of Snapfrozen through which the Service is provided, including all its constituent parts (both software and hardware).
Primary Email Address – means the first email address provided with your Service. This account may receive Service related communications from time to time.
Restricted Access System – means a Restricted Access System as referred to on the Australian Broadcasting Authority website at www.aba.gov.au.
Service – means the Snapfrozen Service, as applicable to the individual user.
Upload / Upstream – means data moving from your modem or connected device to the Snapfrozen Network.