Always Online

ADSL Conditions of Use

1. Definitions

Where used in these conditions, the following terms shall have the following respective meanings, unless the context otherwise requires:

• "Application Fee" means the registration fee (if any) payable by the Customer to the Company of such amount as may be specified in the Company's Schedule of Charges from time to time.
• "Application Form" means the Company's standard form of application for provision of the Service.
• "Company" means AlwaysONLINE Pty Ltd Limited ACN 093 918 015
• "Contract" means the contract between the Company and the Customer comprised of the Application Form and these conditions.
• "Customer" means the applicant specified in the Application Form.
• "Service" means access via the Customer's computer(s) to the Company's network including computer communications facilities, computer resources and disk storage, as specified on the Application Form.
• "Service Fees" means the service fees payable by the Customer for the Service as published by the Company in its Schedule of Charges from time to time.

2. Supply and Use of Service

2.1 Subject to the due compliance by the Customer with its obligations under the Contract, the Company shall supply the Service to the Customer at such times and by such means as the Company from time to time deems appropriate.

2.2 The Customer acknowledges that, in providing the Service, the Company relies on factors outside its control. Accordingly, the Company does not warrant that Customers will have continuous or error free access to the Service. In the case of the Data Backup service, whilst all efforts are made to ensure that backed up data is made available for restoration, no liability is accepted by the Company in the event that data cannot be restored

2.3 The Company has no obligation to review or edit the content of any materials produced, displayed, published or transmitted by the Customer and reserves the right to refuse to post or to remove any materials.

2.4 The Customer shall not use the Service or permit the use of the Service by any other person or entity:

(a) for any illegal or fraudulent purpose;

(b) for sending to any person any communication which is illegal, offensive, abusive, obscene, indecent, menacing, false, misleading or deceptive, fraudulent or which containing content prohibited or deemed prohibited by law;

(c) for sending unsolicited commercial e-mails;

(d) in any way which causes or is intended to cause annoyance, inconvenience or anxiety to any person; or

(e) in any way which does not conform with the Company's standards as advised from time to time.

2.5 The Customer will at all times will comply with all statutes, regulations, ordinances, standards, codes, permits and other lawful directions of all competent authorities relating to or otherwise affecting the subject matter of the Contract. Without limiting the foregoing, the Customer shall at all time comply with all relevant Internet industry codes, and will not, by any act or omission, prevent or interfere with the compliance by the Company with such codes.

2.6 It is the Customer's responsibility to ensure that any computer(s) used for access to the Service are appropriately licensed for any software used in such access. 

2.7 The Customer must be at least eighteen (18) years of age. A minor's parent or legal guardian may authorise the minor's use of the account, but must assume all liabilities resulting from the minor's use of the Company's services.

2.8 The Company makes no guarantees of access speed in respect to the service in terms of reporting line synchronisation speed nor download nor upload speeds obtained to any Internet connected host.

3. Third Party Providers

3.1 The Customer acknowledges and agrees with the Company that third party providers of information may impose additional terms and conditions regarding the provision and/or use of their information and/or services and that such terms and conditions may limit or purport to limit such third parties from liability regarding the information and/or services provided by them, and the Customer agrees to comply with those terms and conditions at all times.

4. Access

4.1 The Customer must at all times comply with verbal, written or electronic (including electronic mail and web pages) instructions given by the Company from time to time in respect of access to the Service.

4.2 The maximum transfer speed or the latency of the Service is not guaranteed.

5. Service Charges

5.1 A Schedule of Charges for subscription to and use of the Service is published by the Company from time to time.

5.2 The Customer acknowledges and agrees with the Company that the charges for subscription to and use of the Service are subject to variation upon the giving by the Company of not less than seven (7) days' notice.

5.3 The Customer shall pay the Application Fee (if any) to the Company upon the earlier of submission of the Application Form and when the Customer first uses the Service.

5.4 The Customer shall pay the Service Fees to the Company within seven (7) days after the date of the relevant invoice by the Company. Unpaid accounts may be locked (services temporarily stopped) after seven (7) days with a $5 unlocking fee applying to return accounts to a functional state.

5.5 The Customer shall pay to the Company interest calculated at the rate of twelve per centum (12%) per annum on any monies (including unpaid interest) not paid on or before the due date for payment of the same. Interest is payable on demand being made therefor.

5.6 Insofar as it is lawful, neither the Application Fee (if any) nor any part of the Service Fees which may be paid in advance is refundable in any circumstances.

5.7 Any charge incurred by the Company or payment which is subsequently rejected by a bank or other financial institution will be passed on to the Customer.

6. Confidentiality

6.1 The Customer acknowledges the confidential nature of, and the Company's intellectual and industrial property rights in respect of the Service. 

6.2 The Customer shall not, without the Company's prior written consent, copy or cause to be copied or disclose any details of the Company's confidential, intellectual or industrial property rights in respect of the Service. 

6.3 The Customer shall not disclose its password(s) to any third party. 

6.4 The Customer's obligations under this Clause 6 shall survive termination of the Contract. 

7. Liability and Indemnity of the Company

7.1 The Company shall use all reasonable care in respect to provision the Service, however, except as otherwise expressly stated in the Contract or to the extent required by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating n any way to the provision of the Service or to the Contract, are excluded. 

7.2 Without limiting the generality of the foregoing, the Company shall not be liable to the Customer or any third party in respect of any loss of damage (including consequential loss or damage) howsoever caused, which may be suffered or incurred or which may arise directly or indirectly in respect of the Service or any inability of the Customer to use the Service or the failure or omission on the part of the Company to comply with its obligations under the Contract. 

7.3 The liability of the Company for any cause shall be limited, at the Company's option, to one or more of: 

(a) the supplying of the services again; 

(b) the payment of the cost of having the services supplied again; or 

(c) the refund of all or a proportionate share of the Service Fees. 

7.4 Despite any other term of this Agreement, including any indemnity, the limit of the Company's liability to the Customer and to any third party in relation to the subject matter of this Agreement for any and all claims shall not in the aggregate exceed the amount of the Application Fee and Service Fees paid by the Customer, and in no event shall the Company be liable for any consequential or economic loss. 

7.5 The Customer shall at all times indemnify and hold harmless the Company and its officers, employees and agents from and against any loss (including reasonable legal costs and expenses) or liability arising out of or in relation to:
(a) a breach by the Customer of its obligations under the Contract; 

(b) any contract, arrangement or understanding between the Customer and any third party, including without limitation for the supply by the Customer of goods or services; or (c) any wilful, unlawful or negligent act or omission of the Customer. 

8. Force Majeure

8.1 The Company will not be liable for any delay or failure to perform its obligations under the Contract if such failure or delay is due to an act of god, insurrection or civil disorder, war, or military operations, national or local emergency acts or omission of Government or other competent authority, industrial disputes of any kind (whether involving the Company's employees or contractors), fire, lightning, explosion, flood, subsidence, inclement weather, acts or omission of persons or bodies for whom the Company is not responsible or any other case whether similar or dissimilar outside the control of the Company. 

9. Variation of Contract of Use 

9.1 The Company may from time to time vary the Contract by giving to the Customer not less than seven (7) days notice of such variation.

10. Term and Termination

10.1 The Contract shall commence on the earlier of acceptance by the Company of the Customer's Application Form or the date upon which the Customer first uses the Service, and shall continue until terminated in accordance with this Clause 10.

10.2 The Customer's account renews automatically when any prepaid period expires, and the Customer will be liable for all Service Fees payable for the renewed period as a debt due to the Company. Cancellation of the account must be specifically requested by the Customer in accordance with Clause 10.3.

10.3 The Customer may terminate the Contract at any time after an by giving fourteen (14) days written notice to the Company, delivered by e-mail, fax or postal mail, and containing the Customer's username, full name, address and contact phone numbers, in which case the Company shall be entitled to retain any monies paid by the Customer. Early termination fees may apply depending on the access plan chosen by the Customer. Details of fees are provided at the time of Application.

10.4 The Company may at any time, without reason, terminate the Contract on sixty (60) days written notice to the Customer, provided that the Company will refund a proportional amount of any prepaid Service Fees having regard to the unexpired portion of the period to which the prepayment related.

10.5 The Company may terminate the Contract immediately by notice in writing to the Customer if:

(a) any payment due from the Customer to the Company pursuant to the Contract remains unpaid for a period of seven (7) days; or

(b) the Customer breaches any provision of the Contract which is not capable of being remedied

(c) the Customer breaches any provision of the Contract which is capable of being remedied and fails to remedy the breach within seven (7) days of written notice by the Company

(d) the Customer provides false or misleading information in respect of the Customer's use of the Service or in the Application Form

(e) in the reasonable opinion of the Company the Customer has or may use the Service for any unlawful or improper purpose or in a manner that may jeopardise the security or interface in the proper operation of the Service of any part thereof

(f) the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration

(g) the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving

(h) the Customer, being a natural person, dies.

10.6 Except as provided in Clause 10.4 there will be no refund of any monies paid by the Customer on termination of the Contract.

11. Miscellaneous

11.1 Neither party is an agent, representative or partner of the other.

11.2 The Company may subcontract for the performance of part or all of its obligations under the Contract.

11.3 The benefit of the Contract shall not be dealt with in any way by the Customer (whether by assignment or otherwise) without the Company's prior written consent.

11.4 No right under the Contract shall be deemed to be waived except by notice in writing signed by each party. A waiver by the Company pursuant to this clause will not jeopardise its rights in respect of any subsequent breach of the Contract. Subject to this clause, any failure by the Company to enforce any provision of the Contract, or for any forbearance, delay or indulgence granted by the Company to the Customer, will not be construed as a waiver of the Company's rights under the Contract.

11.5 The Contract constitutes the entire agreement between the parties in respect of provision of the Service. Any prior arrangements, agreement, representations or undertakings are superseded. Subject to the provisions of Clause 11, no modification or alteration to any provision of the Contract will be valid except in writing signed by each party.

11.6 Headings used in these conditions are for convenience and ease of reference only, are not part of the Contract and shall not be relevant to or affect the meaning or interpretation of the Contract.

11.7 If any part of the Contract is held invalid, unenforceable or illegal for any reason, the Contract shall remain otherwise in full force apart from such provision which shall be deemed deleted.

11.8 Any dispute arising in connection with the Contract which cannot be settled by negotiation between the parties or their representatives shall be submitted to mediation in accordance with the Rules of the Law Society of New South Wales. During such mediation, both parties may be represented by a duly qualified legal practitioner. Nothing in this clause prevents the Company form seeking urgent injunctive relief.

11.9 Any express statement of a right of the Company under the Contract is without prejudice to any other right of the Company expressly stated in the Contract or arising at law.

11.10 Any notice or other document which may be given or served by the Company under the Contract shall be deemed to have been duly given or served if left at or sent by post to the address at which the Service is provided, or the address otherwise notified by the Customer or delivered to the Customer's mailbox on the Service. The Company's address for service of any notice by the Customer under the Contract shall be PO Box 4753, North Rocks, NSW 2151 or any different address notified to the Customer. Written notice shall include notice by facsimile transmission.

11.11 The Contract shall be governed by and construed in accordance with the laws in force in the State of New South Wales and each party hereto submits to the exclusive jurisdiction of the Courts sitting in that State.