Infinite Networks Pty Ltd ACN 097 243 055

BACKGROUND

  1. The Customer wishes to access the internet.
  2. The ISP is an internet service provider.
  3. The ISP will provide internet service provider services to the Customer on the terms of this agreement.

OPERATIVE PROVISIONS

1     Definitions & Interpretation

1.1           Definitions

In this Agreement, the following words have this meaning unless the context otherwise requires:

Agreement means this agreement and any Schedule duly executed by the Parties.

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).

Benchmark Interest Rate means the benchmark interest rate for an income year rate published by the Australian Taxation Office for the purposes of Division 7A of Part III of the Income Tax Assessment Act 1936 as applicable from time to time.

Acceptable Use Policy means the conditions of use applicable to the Service as published by ISP from time to time.

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the Australian Capital Territory.

Charges means the charges payable by the Customer to the ISP under this Agreement.

Claim includes any claim, action, demand or proceeding:

(a)            under, arising out of, or in any way in connection with this Agreement;
(b)            arising out of, or in any way in connection with the Services or either party’s conduct before the Commencement Date; or
(c)            arising otherwise at law including in equity, by statute, tort (whether for negligence or otherwise), contract, for restitution or unjust enrichment.

Commencement Date means the dates in the Service Schedule for the commencement of each Service.

Confidential Information means all commercially valuable or sensitive information:

(a)            disclosed in any form by a party to the other party in relation to, or arising through the Services, before, on or after the date of this Agreement; or
(b)            which the party regards as confidential, proprietary or of a commercially sensitive nature;

but does not include information which:

(c)            is in the public domain;
(d)            was in the party’s possession before it was disclosed; or
(e)            was lawfully received from a person who had unrestricted legal right to disclose that information free from any obligation to keep the information confidential.

Corporations Act means the Corporations Act 2001 (Cth).

Force Majeure Event means an event or cause beyond the reasonable control of the party claiming force majeure, including fire, flood, earthquake, elements of nature, acts of war, terrorism, riots, civil disorder, revolutions, strikes or lockouts, power failures, telecommunication provider failures or other adverse environmental conditions or factors.

GST has the meaning given to it in the GST Act or any replacement or other relevant legislation and regulations.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Initial Term means a period of three years from the date this Agreement is executed by the Customer.

Insolvency Event means circumstances in which a Party is:

(a)            unable to pay its debts as they fall due, makes or commences negotiations with a view to making a general re-scheduling of its indebtedness, a general assignment, scheme of arrangement or composition with its creditors;
(b)            takes any corporate action or any steps are taken or legal proceedings are started for:

(i)             its winding-up, dissolution, liquidation, or re-organisation, other than to reconstruct or amalgamate while solvent on terms approved by the other Party (which approval will not be unreasonably withheld);
(ii)            the appointment of a controller, receiver, administrator, official manager, trustee or similar officer of it or of any of its revenues and assets;
(iii)           seeks protection or is granted protection from its creditors, under any applicable legislation; or
(iv)           ceases or threatens to cease to carry on its main business.

Internet means the worldwide connection of computer networks providing for the transmittal of electronic mail, online information, information retrieval and file transfer protocol.

ISP means the internet service provider party Infinite Networks Pty Ltd ACN 097 243 055 who will provide the internet service provider Services to the Customer.

Liability all liabilities, costs, damages, losses, expenses and outgoings of whatever description, including the costs and expenses of defending or settling any Claim.

Parties means the ISP and the Customer and Party means any of them.

Prescribed Terms means any terms, conditions and warranties which the law expressly provides may not in respect of this Agreement be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent.

Rates means the ISP’s published rates, which may be updated from time to time.

Renewal Period means a period of 12 months commencing on each anniversary date of the date this Agreement was executed by the Customer.

Service means interactive access to ISP’s connection to the Internet, the provision of World Wide Web data and the incidental storage of data, as detailed in either a Service Schedule or the selected service and plan noted via the ISP’s website;

Service Schedule means the document titled Quote and Service Order Form, duly executed by the Customer.

Service Level Standards means the level of performance to be achieved by the Support Services as stated in the Service Schedule.

Support Services means the provision of ongoing support management, internet network maintenance, help desk and technical support services as set out in this Agreement and any Service Schedule.

Tax means a tax, levy, charge, impost, fee, deduction, withholding or duty of any nature.

Tax Invoice has the meaning it has in the GST Act.

Telecommunications Consumer Protection Code means the Telecommunications Consumer Protections Code C628:2015 (Incorporating Variation No. 1/2016).

Term means the Initial Term and each Renewal Period.

Third Party Service Provider means a carrier (as defined in the Telecommunications Act 1997 (Cth)), carriage service provider (as defined in the Telecommunications Act 1997 (Cth)) or an equipment supplier, other than the ISP.

World Wide Web means a method of representing and obtaining graphical data and linking data items used by Internet users.

1.2           Interpretation

(a)            In this Agreement, unless otherwise indicated by the context:

(i)             words importing the singular include the plural and vice versa;
(ii)            words which are gender neutral or gender specific include each gender;
(iii)           a reference to a thing (including, but not limited to, a chose-in-action or other right) includes a part of that thing;
(iv)           Agreement headings are for convenience only and do not affect interpretation of this Agreement;
(v)            a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;
(vi)           where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(vii)          an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
(viii)        a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements of it;
(ix)           a reference to a document includes all amendments or supplements to that document, or replacements or novations of it;
(x)            a reference to a party to a document includes that party’s legal personal representatives, successors and permitted assigns;
(xi)           a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally;
(xii)          a reference to an agreement, other than this Agreement, includes an undertaking, deed, agreement or legally enforceable arrangement or understanding, whether or not in writing;
(xiii)        a reference to a body, whether statutory or not:

A.             which ceases to exist; or
B.             whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which substantially succeeds to its powers or functions; and

(xiv)        ‘including’ and similar expressions are not words of limitation.

(b)            Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the following Business Day.

(c)            This Agreement may not be construed adversely to a Party just because that Party prepared this Agreement.

(d)            A term or expression starting with a capital letter:

(i)             which is defined in this Agreement, has the meaning given to it in this Agreement; or
(ii)            which is defined in the GST Act has the same meaning given in the GST Act unless otherwise provided in this Agreement.

2     Term

2.1           The ISP will provide the Services to the Customer from the relevant Commencement Dates stated in the Service Schedule.

2.2           This Agreement continues for the Initial Term, after which time the Agreement will automatically renew for subsequent Renewal Periods, subject to approval by the ISP, until such time as the Customer notifies the ISP with at least 30 days notice in writing prior to the next anniversary date to cancel the Agreement.

2.3           Renewal of this Agreement for a subsequent Renewal Periods may involve an adjustment to the Charges as a condition of ISP providing its consent to the renewal.

3     Provision of service

3.1           The ISP will provide to the Customer the Services by such means as the ISP determines.  The ISP will provide the Customer with identification and log in details sufficient to connect to the Services.

3.2           The ISP aims to provide, but does not promise, continuous, fault-free or completely secure Services.

3.3           The Customer acknowledges that the ISP may be required to intercept communications over the Service and may monitor the Customer’s usage of the Services and communications sent over it for the purpose of ensuring the Customer’s compliance with the Acceptable Use Policy and compliance with the law and regulatory authorities.

3.4           The Customer acknowledges and agrees that

(a)            the network is not secure and data is transmitted at own risk;
(b)            ISP does not and cannot in any way supervise, edit or control the content and form of any information or data accessed through the Service and ISP shall not be held responsible in any way for any content or information accessed via the Service; and
(c)            the ISP is not responsible for ensuring data transmitted is sent or received correctly.

3.5           The Customer warrants that in accessing and using the Service:

(a)            it will comply with all applicable laws, standards and codes in respect to the use of the Services;
(b)            it will only use software that it is legally entitled to use; and
(c)            will adhere to operational procedures and technical specifications advised by the ISP from time to time.

3.6           ISP has no responsibility for and disclaims all or any liability for any material on the Internet that the Customer finds offensive, upsetting, defamatory or personally offensive.

3.7           The Customer must refrain from disruptive activities which may include, but are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and viruses, use of the Service to gain unauthorised access to any other computer system, the sending of harassing, obscene, offensive or threatening electronic mail, forgery of electronic mail and the placement or transmission or storage of any defamatory material on the Internet.

3.8           The Customer will not access, nor permit any other party to access, the Service for any purpose or activity of an illegal or fraudulent nature.

3.9           The Customer will not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from the Service that would infringe the intellectual property right of any person.

3.10        The Customer is responsible for preparing and maintaining sufficient backup files and data storage capacity for all Customer data including electronic messages.

3.11        ISP has no responsibility to provide training in the use of the Service pursuant to this Agreement. Training may be provided or procured for an additional fee.

3.12        The Customer and its users must comply with the Acceptable Use Policy when using the Services.

3.13        The ISP may amend the Acceptable Use Policy from time to time by posting the amended Acceptable Use Policy on its website.

3.14        If the Customer and/or its users breach the Acceptable Use Policy or clauses 3.7, 3.8, or 3.9, the ISP may without notice suspend or limit some or all of the Services and/or terminate the Service.

3.15        The ISP does not promise to monitor the Customer’s service for excessive or unusual usage. The ISP may suspend or cancel your service if it is used in an excessive or unusual way, but do not promise to do so. If the ISP does suspend or cancel the Customer’s service, the Customer will still have to pay any charges incurred for any excessive or unusual usage.

3.16        The ISP will comply with all mandatory industry codes or standards registered under the Telecommunications Act 1997 (Cth) and/or the Telecommunications (Interception and Access) Act 1979 (Cth) (“Mandatory Codes”) in the provision of the Services. If there is a conflict between a Mandatory Code and a provision of this Agreement, the Mandatory Code will prevail to the extent of the inconsistency.

4     Customer Obligations

4.1           The Customer must:

(a)            comply with all reasonable requests from the ISP for access, information or directions in carrying out the ISP’s obligations and cooperate with the ISP’s reasonable investigation of Service outages, security problems, and any suspected breach of this Agreement;
(b)            provide its own access facilities and maintain the security of its network and environment;
(c)            ensure that each person who is authorised by the Customer to access and use the Services complies with this Agreement;
(d)            comply with any restrictions on access to and use of the Services stipulated in the Service Schedule including (without limitation) any restriction on the type or maximum number of authorised users;
(e)            maintain the secrecy and confidentiality of all identification and log-in information required by the Customer to access the Service; and
(f)             not disclose to any other person, corporation, entity or organisation any identification or log-in information, whether in use or not, nor any other confidential information relating to the Services.

4.2           The Customer is liable for all fees resulting from use of the Service accessed through the Customer’s identification or log-in information, whether authorised by the Customer or not (including hacking or other breach of security, viral infection, misuse of log-ins or otherwise).

4.3           The Customer must keep its account permissions, billing, support contacts and other account information up to date.

4.4           The Customer may appoint a third party as its contact and grant the third party access to its account information (“Managed Service Provider”) in writing to the ISP.  A Managed Service Provider may be revoked by the Customer by 10 Business Days notice in writing to the ISP.

4.5           The Customer releases the ISP from any Claims the Customer may have against the ISP arising from or relating in any way to the ISP acting in accordance with the Managed Service Provider directions or providing any information to the Managed Service Provider.

4.6           The Customer represents and warrants that:

(a)            (if a corporate entity) it is a business duly incorporated, validly existing, and in good standing under the laws of its incorporation;
(b)            it has all requisite power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
(c)            it has not suffered an Insolvency Event; and
(d)            it will comply with all applicable laws and regulations applicable to the performance by it of its obligations under this Agreement.

5     Payment

5.1           The Customer will pay the Charges at the rate and in the manner specified in the Service Schedule.  Recurrent Charges will be invoiced either fortnightly or monthly in advance.

5.2           The ISP will issue Invoices for the Charges. All Invoices are due within 14 days of the date of the Invoice.

5.3           If the recurrent Charges are greater than $500 per charging period then the Customer agrees to establish a direct deposit facility for automatic payment of the Charges to the ISP.

5.4           If a genuine dispute arises regarding the amount of a Charge, the Customer may suspend payment of the disputed amount pending resolution of the dispute but must pay the undisputed portion on the due date.

5.5           The Customer must pay all charges resulting from the use of the Services whether authorised by the Customer or not.

5.6           If a Service is cancelled or terminated before any minimum period stated in the Service Schedule, a termination fee will be charged equal to the recurring Charge for the balance of the minimum period.

5.7           Subject to clause 5.11, the ISP may increase or decrease the Charges which apply to the Services by giving 30 days written notice to the Customer but no more frequently than once every 6 months.

5.8           Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.

5.9           In addition to paying the Charges and any other amount payable or in connection with this Agreement (which is exclusive of GST), the Customer will:

(a)            pay to the ISP an amount equal to any GST payable from any supply by the ISP in respect of which the Charges or any other amount is payable under this Agreement; and
(b)            make such payment either on the date when the Charges are due or within 14 days after the Customer is issued with a tax invoice, whichever is the later.

5.10        ISP will promptly create an adjustment note for (and apply to the Commissioner of Taxation for) a refund, and refund to the Customer, any overpayment by the Customer for GST but ISP need not refund to the Customer any amount for GST paid to the Commissioner of Taxation unless ISP has received a refund or credit for that amount.

5.11        The Customer agrees and acknowledges that the ISP may pass on any increase or special Third Party Service Provider fees incurred by the ISP if such fees impact on the costs of the Services provided to the Customer.

5.12        If the Customer fails to pay all outstanding amounts by the due date for payment:

(a)            interest will accrue on the outstanding balance at the Benchmark Interest Rate calculated on a daily basis from the date that the outstanding balance was due and payable to the date it is paid in full; and
(b)            the Customer will be liable for all debt collection fees and charges incurred by the ISP, including but not limited to mercantile/debt collection agent’s fees and solicitor’s costs and disbursements; and
(c)            the ISP may, at its discretion with 5 Business Days’ notice to the Customer in writing, restrict, suspend or disconnect the provision of any or all of the Services until such time as such material breach or failure to pay has been remedied.  The ISP may give less than 5 Business Days notice if permitted to do so under the Telecommunications Consumer Protections Code.

6     Premises

6.1           The Customer must ensure that any equipment used by the Customer or any end users in connection with the Service or the network:

(a)            has all necessary regulatory approvals;
(b)            are not used in any manner prohibited by a regulatory authority;
(c)            are maintained in good repair and working condition; and
(d)            comply with this Agreement and all applicable laws.

6.2           The Customer agrees to provide prompt and safe access to the ISP to its premises if required by the ISP:

(a)            to install any equipment for a Service;
(b)            to inspect, test, maintain, modify, repair or replace any equipment; and
(c)            to recover any of the ISP’s equipment after the termination or expiry of this Agreement.

6.3           If the Customer does not own its premises, the Customer warrants to the ISP that it has obtained the owner’s permission for the ISP to access the premises for the purposes set out in clause 6.2.

6.4           The Customer indemnifies the ISP against any claim by the owner of the premises relating to the ISP entering the premises or installing or maintaining any equipment at the premises.

7     Support and Maintenance

7.1           From time to time Services may be interrupted as a result of scheduled or unscheduled maintenance requirements.  The ISP will endeavour to provide the Customer with notice, on its website, of scheduled maintenance or other activities which may interrupt Services and the ISP will endeavour to minimise the length of any interruption of Services and, where possible, to schedule interruptions outside normal business hours on a Business Day.

7.2           The ISP will provide Support Services to the Customer as described in the Service Schedule in accordance with the Service Level Standards.

7.3           The ISP may charge an additional amount at its then current Rates if:

(a)            the ISP determines the fault is due to the Customer’s equipment, not the Services; or
(b)            the ISP is requested to service, modify, repair or replace the Services or any equipment the Customer uses as a result of a breach of this Agreement, a failure of the Customer’s equipment, a failure or fluctuation of the electrical power supply at the Customer’s premises, including where caused by an electrical storm.

8     Third Party Provider

8.1           If the ISP no longer sources services from a particular Third Party Provider, then the ISP may, by giving the Customer prior reasonable notice:

(a)            migrate the Customer to an alternative Third Party Provider service; or
(b)            cancel the Services.

8.2           If the proposed alternative service is materially detrimental to the Customer, then the Customer may cancel the Service without the payment of any early termination charges.

9     Variation

9.1           Telecommunications legislation allows the ISP to set standard customer terms in a “Standard Form of Agreement”. These terms are a “Standard Form of Agreement”. Under the legislation:

(a)            the Customer and the ISP must comply with these terms unless the parties have agreed differently;
(b)            if the ISP varies the terms and it would cause detriment to the Customer, the ISP must first publish an advertisement or tell the Customer directly; and
(c)            if the ISP varies the terms and it does not cause detriment to the Customer, the ISP can make the change without having to first publish an advertisement or tell the Customer directly.

9.2           The ISP may vary these terms from time to time in accordance with clause 9.1 provided the variation is reasonably necessary in order to protect the legitimate interests of the ISP or to comply with legislative or regulatory changes.

10    Termination

10.1        If:

(a)            the Customer breaches this Agreement and does not remedy that breach within 14 days of written notice detailing the breach;
(b)            it is necessary to comply with a law, or an order or request from any government or regulatory body, to protect any person, equipment or the network or to attend to any emergency;
(c)            the ISP is unable to continue to supply due to the cancellation, suspension or termination of any agreement with a Third Party Provider; or
(d)            a Force Majeure Event prevents either party from substantially complying with the Agreement (except an obligation to pay money)
then the ISP may:
(e)            immediately cease, limit or suspend the supply of the Service temporarily or permanently, with notice if possible; or
(f)             terminate the Agreement with immediate effect by notice in writing.

10.2        If:

(a)            the ISP breaches this Agreement and does not remedy that breach within 14 days of written notice detailing the breach; or
(b)            a Force Majeure Event prevents the Customer from substantially complying with the Agreement for a period of at least 2 months (except an obligation to pay money)

then the Customer may terminate the Agreement with immediate effect by notice in writing.

10.3        The Customer may cancel one or more of the Services at any time with 30 days notice in writing provided that any termination fee due under clause 5.6 is paid by the Customer within 10 Business Days of receipt of a Tax Invoice.

11    Confidentiality & Privacy

11.1        Confidential Information

The parties each agree that they will:

(a)            not disclose any Confidential Information, except to the extent required by law or where such disclosure is made to an officer or employee of the party on a limited basis to give effect to the terms of this Agreement; and
(b)            use the Confidential Information only for the purposes of fulfilling this Agreement.

11.2        The ISP may disclose the Customer’s personal information to other Third Party Providers if it is relevant to the provision of the Services to the Customer or to any Managed Services Provider nominated by the Customer.

11.3        The Customer acknowledges and agrees that in relation to Confidential Information or Personal Information, the ISP:

(a)            will comply with its Privacy Policy (as amended from time to time); and
(b)            is subject to and will fulfil its obligations under the data retention provisions of the Telecommunications (Interception and Access) Act 1979 (Cth).

12    Liability

12.1        The ISP is not liable to the Customer, any of its end users or any other person in relation to a Claim to the extent that any of the following contributed to the Liability:

(a)            faults or defects in the Services caused by the Customer’s own conduct or misuse or the conduct or misuse by its end users;
(b)            for any unauthorised access to the Services or the unauthorised use of the Services;
(c)            the Customer’s breach of this Agreement, criminal or illegal act;
(d)            faults or defects that arise in telecommunication services provided to the Customer other than under this Agreement (even if they are connected with the ISP’s consent to Services which the ISP has supplied under this Agreement; or
(e)            faults or defects in the Services that arise due to the Customer’s equipment or failure to maintain that equipment.

12.2        To the full extent permitted by law and subject to clause 12.4:

(a)            except as expressly set out in this Agreement and except for any Prescribed Terms, all conditions, warranties, terms and obligations expressed or implied by law or otherwise relating to this Agreement or the performance of the obligations by the ISP under this Agreement or to any Services supplied or to be supplied by the ISP under this Agreement, are excluded;
(b)            the ISP’s total aggregate Liability under this Agreement for all Claims arising in relation to the Services in each 12 month period from the Commencement Date is limited to the amount actually paid by the Customer to the ISP during the 12 month period in which the Claims arose; and
(c)            the ISP’s Liability for a breach of any Prescribed Term implied into this Agreement is limited to:

(i)             in the case of goods, the repair or replacement of the goods or the supply of equivalent goods or the cost of repairing or replacing the goods or of acquiring equivalent goods; and
(ii)            in the case of services, the re-supply of the services or the payment of the cost of re-supplying the services.

12.3        To the extent permitted by law, neither party will be liable to the other in any way in respect of any Claim for loss of data, loss of profits, loss of revenues, loss of clients or contracts, wasted management time, increased costs or expenses or for any special, incidental, economic, consequential or indirect loss or damages, even if that party has been advised by the other or should have reasonably been aware of the possibility of such loss.

12.4        The limitations of Liability set out in clause 12.2 and 12.3 do not apply to the extent that the liability arises from:

(a)            any breach of any obligation of confidence;
(b)            any fraudulent act or behaviour; or
(c)            any personal injury or death.

12.5        Where Prescribed Terms apply under the Australian Consumer Law, the following applies:

Our goods come with guarantees that cannot be excluded by the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure, and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.

12.6       The Customer indemnifies the ISP, and will keep the ISP fully indemnified, from and against any Liability which the ISP may suffer or incur arising out of or in connection with a Claim brought by the Customer or a third party against the ISP which relates to or arises out of the Customer’s use of the Services including, without limitation, as a result of:

(a)            the transmission of any illegal, fraudulent or offensive material by the Customer or any of its end users;
(b)            infringement of the intellectual property rights of any person;
(c)            any breach of this Agreement by the Customer; or
(d)            any wilful, unlawful or negligent act or omission by the Customer or by any of its end users.

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

12.8        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.

13    Unavoidable Delay or default

A Party is not liable for any delay or failure to perform its obligations under this Agreement due to a Force Majeure Event if:

(a)            it notifies the other party of the unavoidable delay and its likely impact as soon as reasonably practicable after that unavoidable delay arises; and
(b)            it has taken reasonable measures to avoid or minimise the impact of the unavoidable delay.

14    Notices

14.1        Giving of notice

A notice or other communication required or permitted to be given by one Party to another under this Agreement must be in writing and:

(a)            In the case of a notice by ISP to the Customer:

(i)             published on the ISP’s website.

(b)            In any other circumstance by either Party:

(i)             sent by email to the email address of the addressee specified in this Agreement:
(ii)            delivered personally;
(iii)           sent by pre-paid mail to:

A.             the address of the addressee specified in this Agreement;
B.             if a Party is a corporation, the registered office of the corporation; or
C.             the address of the addressee as may be specified by the addressee from time to time for the receipt of notices under this Agreement.

14.2        Service of notice

A notice or other communication under this Agreement is taken to have been given (unless otherwise proved):

(a)            if delivered personally, when delivered on a Business Day, or otherwise on the next Business Day;
(b)            if mailed, on the second Business Day after posting; or
(c)            if sent by email, on the day of sending on a Business Day, or otherwise on the next Business Day.

14.3        Change of address

A Party may change its address or email address for service by giving notice of that change in writing to the other Parties.

15    Problem Resolution

15.1        Objective

The Parties agree to use reasonable commercial efforts to resolve by negotiation any dispute that arises between them from this Agreement. No Party will resort to legal proceedings, or terminate this Agreement, unless the process under this clause 15 has been exhausted, except if it necessary to seek an urgent interim determination.

15.2        Notification

If a dispute arises (including a breach or an alleged breach) under this Agreement, which is not resolved at an operational level or which is sufficiently serious that it cannot be resolved at the operational level, a Party concerned about the dispute will notify the other Parties. The Parties will then endeavor in good faith to agree upon a resolution.

15.3        Mediation

Should the Parties fail to reach a solution in accordance with clause 15.1 within 5 Business Days (or such other timeframe agreed between the Parties), the Parties may agree to mediation. The mediator will be agreed between the Parties within 10 days of written notice of the referral by the referring Party to the other Parties, or, failing agreement, as appointed by the President of the Law Society of the Australian Capital Territory.

15.4        Proceedings

If mediation fails, or if any Party states that it does not wish to proceed with mediation, then any Party may:

(a)            commence legal proceedings against another or any others; or
(b)            terminate this Agreement in accordance with the provisions in this Agreement.

15.5        Continued Performance

Unless prevented by the nature of the dispute, the Parties will continue to perform this Agreement while attempts are made to resolve the dispute.

16    General

16.1        Assignment

The Customer shall not assign or sub-license, charge or encumber, delegate or sub- contract any or all of its rights or obligations under this Agreement without the written consent of the ISP.

16.2        Counterparts

This Agreement may be signed in one or more identical counterparts and those counterparts together will constitute the one document.

16.3        Governing law and jurisdiction

This Agreement is governed by the laws of the Australian Capital Territory.  Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.

16.4        No merger

(a)            Nothing in this Agreement merges, extinguishes, postpones, lessens or otherwise prejudicially affects any right, power or remedy that a Party may have against another Party or any other person at any time.
(b)            The covenants, conditions and provisions of this Agreement  which are capable of having effect after termination remain in full force and effect after the termination of this Agreement.

16.5        Severance

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.

16.6        No waiver

A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right or an election to waive that power or right.  The exercise of a power or right or the delay or failure to exercise a power or right does not preclude:

(a)            its future exercise; or
(b)            the exercise of any other power or right.

16.7        Waiver in writing

The variation or waiver of a provision of this Agreement or a Party’s consent to a departure from a provision by another Party, will be ineffective unless in writing and executed by the Parties.

16.8        Whole agreement

This Agreement and any duly executed Service Schedules are the complete and exclusive statement of the agreement between the Customer and the ISP and supersede and replace any proposals, representations or prior agreements, oral or written, and all other communications relating to the subject matter of this Agreement.

16.9       Relationship

The parties are independent contractors.  Nothing in this Agreement constitutes a partnership or joint venture relationship. Neither party may purport to act on behalf of the other party unless expressly authorised to do so in writing.

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