IMPORTANT CUSTOMER INFORMATION : YOUR RIGHTS AND OBLIGATIONS
These terms and conditions are a Standard Form of Agreement formulated for the purposes of Section 479 of the Telecommunications ACT 1997.
We, Yourtility, will provide you, our Customer, with Services in accordance with these terms and conditions, the applicable charges notified to you from time to time and the Yourtility Full Service Application (the "Application") (collectively, the "Agreement").
1. PROVISION OF SERVICES
1.1 Services: We will provide you with the telecommunications
services nominated, or assumed to be nominated, by you on the
Application and other services we may agree to provide to you
from time to time ("Services") on the terms of this Agreement. If
you fail to nominate telecommunication services on the
Application, you acknowledge that we will assume you wish to
select Yourtility as your default carrier for local, national
and international long distance calls and calls to mobile services. Services will only be provided if you are either a residential
customer, a small to medium business customer or a corporate
customer.
1.2 Provision of Services: We will provide you with the Services for
all your local, national and international long distance calls and
calls to mobile services (as applicable) unless you dial another
override code for local, long distance, international calls or calls
to mobile services (as applicable) on a call by call basis. We will
provide the Services using our facilities and services or those of
other carriers, telecommunications service providers or
equipment suppliers ("Supplier").
1.3 Variations: Without notice to you we may change a Supplier
or its products or vary our charges from time to time. We may
otherwise vary these terms on 30 days written notice to you.
2. CHARGES FOR SERVICES
2.1 Invoicing: We will bill you monthly for the Services in
accordance with our current charges as notified to you from
time to time. We may vary invoice frequency at our discretion.
2.2 Method of Billing: Unless otherwise expressly stated in this
Agreement, we will generally bill you in advance for periodic
charges, connection and service fees (where applicable) and in
arrears for usage charges, although this may vary in certain
cases. We will endeavor to bill you within the next normal billing
period for charges billed in arrears, but we reserve the right to bill
you for those charges in later billing periods. As per 8.2.2 of ACIF
CS42 - Industry Code - Billing, we will not bill charges older then
190 days from the date the charge was incurred by the
customer.
2.3 Time for Payment: All charges must be paid by the due date
shown on the invoice.
2.4 When available, we may debit amounts directly from your
nominated bank or credit card account as they become owing
where you have chosen that method of payment. In any event,
if you have provided your bank account or credit card details,
where amounts remain outstanding after 30 days we may debit
those amounts from your nominated bank or credit card
account without further notice unless we have received written
notice from you of a bone fide dispute of those amounts. If a
direct debit fails or is rejected, we reserve the right to pass on
any charges that we may incur due to the failure or rejection.
2.5 Our charges to you; we may pass on any charges another
Supplier charges to us (including increases and special or one-off
charges) without notice to you.
2.6 Other Charges: You will pay us in accordance with clause 2.5
any charge which any other Supplier or other person renders to
us:
(a) if you approach that other Supplier or person directly, or
otherwise than through us; or
(b) for connection or initiation of any Service or for cancellation
of any Service.
2.7 Billing from other Suppliers: If you use an override code to
access services offered by another Supplier, you will be billed by
that Supplier for charges you incur unless we have a separate
arrangement in place for the Supplier to charge us directly, in
which case we will pass on the charges to you in accordance
with clause 2.5.
2.8 Interest: We reserve the right to charge interest on any part of
the charges not paid to us by the due date. Interest, calculated
daily, will be charged from the due date until payment at a rate
of 5% above our prime lenders overdraft rate published on the
first working day of each calendar month.
2.9 Suspension: We reserve the right to suspend provision of
Services to you, where charges owing to us or any amount owing
under this clause remain outstanding after 30 days, unless we
have received written notice from you of a bona fide dispute of
those charges. If we suspend or terminate the Services for unpaid
charges or any other reason, subsequent reconnection may
incur a reconnection fee.
2.10 Barring: We reserve the right to bar provision of Services to
you, where charges remain outstanding past the due date as
stated on your invoice, your unbilled calls exceed your credit
limit with us, or we become aware of unusual calling patterns.
2.11 Unclaimed amounts: In the event that your account is
terminated and monies are owed to you by us, we will notify you
of these amounts. In the event you do not claim those monies
within 3 months of being notified we will retain the money and
you agree that you will have no further claim in relation to those
monies.
2.12 Costs incurred in Recovery of Overdue Amounts: If we incur
costs in recovering overdue amounts from you, including
(without limitation) mercantile agents' costs, disconnection of
services costs, costs incurred in commencing legal action such
as service fees and search fees, we reserve the right to recover
all these amounts from you in addition to the overdue amounts.
2.13 Dishonoured cheques: Yourtility reserves the right
to terminate the Agreement without notice to you in the event:
(a) you have not paid amounts owing to us in accordance with
this clause; and
(b) a cheque provided by you in payment of that invoice is
dishonoured without a valid explanation being provided by you.
We will also charge you a dishonour fee if a cheque used to
pay a bill is dishonoured.
2.14 Security Bond: We may require you to lodge a security bond
as a condition of us providing Services to you. You authorise us to
deduct from that bond any amounts remaining owing to us 30
days after the date of an invoice. If you have paid all of our
invoices on time for 12 consecutive months, we may either
refund the bond or credit it to your account. The amount of the
security bond will be no greater than the credit limit described in
clause 2.15.
2.15 Credit Limit: We may from time to time set a credit limit for
the provision of the Services to you. You will be notified of this
credit limit and any variation thereof.
2.16 GST: Unless expressly stated otherwise, the charges payable
for the Services under this Agreement are inclusive of GST. Where
the charges are expressed to be exclusive of GST, the Customer
must pay to Yourtility in addition to the charges for the
Services, an amount equal to any GST payable on the supply of
the Services. That additional amount is payable at the same time
as any part of the charges for the Services is payable. Yourtility will issue a tax invoice to the Customer for the supply of
those Services at or before that time.
3 PERIOD OF AGREEMENT
3.1 Commencement of Agreement: This Agreement starts when
you sign the Application, complete a voice recording, or when
you first access our Services after receipt of these terms and
conditions and continues until terminated.
3.2 Commencement of Services: The provision of Services
commences when your accounts are transferred from your
current Supplier to us and upon completion of installation of any
necessary equipment and any other arrangements with another
Supplier for the provision of the Services have been completed.
3.3 If the Agreement is a non-fixed length agreement we will
provide the service to you in accordance with the Agreement
until the Service is cancelled in accordance with Clause 9.1 or
9.2 below.
3.4
(a)For fixed-length agreements, this contract will continue
(i) For the fixed term of the contract; or
(ii) Until it is terminated in accordance
with Clause 9.1 or 9.2.
(b) If the Agreement is a fixed-length agreement and neither you
nor we cancel the service at the end of the fixed term the
agreement becomes a non-fixed length agreement and we will
continue to supply the Service to you on a month to month basis
in accordance with the Agreement. If you do not wish to
continue to use the Service on a month to month basis after he
end of the fixed term of your Agreement you must inform us, in
accordance with clause 9.1 below, by giving us 30 days notice in
writing, before the end of the minimum term, that you wish to
cancel the service at the end of the fixed term.
(c) Yourtility Pty Ltd will not be able to automatically
renew the Agreement for the same duration as the initial
Contract period for a fixed term contract without your written
consent.
4 TRANSFER OF SERVICES TO US
4.1 Changing your current arrangements: If in providing the
Services, we need to change your arrangements with your
current Supplier, then we will do so in accordance with this
clause.
4.2 Transfer to us: By signing this Agreement you:
(a) authorise us to sign on your behalf and in your name forms
of authority to your current Supplier to transfer your accounts into
our name; and
(b) authorise your current Supplier of telecommunications
services to transfer to us all telecommunications services relating
to the telephone numbers transferred to us; and
(c) will remain responsible for all amounts owing to your current
Supplier of telecommunications services for any services they
supply, or have supplied, to you.
4.3 Credits: If your current Supplier credits us with any amount
concerning services provided before the date of transfer, we will
credit that amount to your account.
4.4 Charges for Transferred Services: If your current Supplier raises
a proper charge relating to a service it provided to you before
the commencement of Services under clause 3.2, we will advise
you accordingly, and you must pay your current Supplier that
amount. If you dispute the amount claimed, you must notify us in
writing.
4.5 Indemnity: We will not accept any liability for any amounts
owing by you to your current Supplier for services which your
current Supplier provided to you prior to the commencement of
Services under clause 3.2. You must indemnify us against any
claims made by your current Supplier to us in relation to any such
amounts.
5 TRANSFER OF SERVICES FROM US TO ANOTHER SUPPLIER
5.1 Transfer: If in the future you ask us to transfer any of the
Services to another Supplier, then you remain responsible to us
for amounts payable prior to the transfer, and you will
immediately pay us that amount on receipt of our invoice.
5.2 If after the transfer you elect to use any of our Services by the
use of an override code, you agree to pay us for any charges
incurred for those Services.
5.3 Termination of Services: The provision of Services ceases when
we transfer those accounts to another Supplier.
5.4 Billing: We will endeavour to bill you for those Services within
the next normal billing period but we reserve the right to issue
subsequent invoices in relation to unbilled fees and charges.
5.5 Dispute: If we become aware of other proper charges
(including fees payable to any other Supplier) for those Services
up to the date of transfer, or we resolve any dispute so that any
liability of ours relating to those Services is quantified, then you
will immediately pay us all such amounts on receipt of our
invoice.
5.6 Credits: We will credit you with any amount credited to us by
another Supplier for those Services provided up to the date of
transfer.
6 PERSONAL INFORMATION
6.1 We may collect personal information about you ("your
personal information").
6.2 You acknowledge and agree that:
(a) we may collect your personal information from you or
(subject to the requirements of Part IIIA of the Privacy Act) from a
credit provider or credit reporting agency. If we do not collect
your personal information we may not be able to provide the
Services to you.
(b) we may use your personal information:
(i) to assess any application by you for credit or commercial
credit to be provided by us;
(ii) to collect payments that are overdue in respect of any
credit or commercial credit provided by us;
(iii) to provide the Services to you (including the investigation
or resolution of disputes relating to any Services provided to you)
and to provide credit or commercial credit to you in respect of
the Services;
(iv) as otherwise authorised or required by law.
(c) at any time, we may disclose your personal information to a
credit reporting agency:
(i) to obtain a consumer credit or a commercial credit report
about you;
(ii) to allow the credit reporting agency to create or maintain
a credit information file containing information about you.
The information we disclose to a credit reporting agency will be
limited to identity particulars about you, the fact that you have
applied for credit and the amount, the fact that we are a
current credit provider to you, loan repayments that are more
than 60 days overdue and for which debt collection action has
started, information that in our opinion you have committed a
serious credit infringement (that is, acted fraudulently or shown
an intention not to comply with your credit obligations), and
cheques drawn by you for $100 or more which have been
dishonoured more than once
(d) we may also disclose your personal information to:
(i) other credit providers named in a consumer credit report
we obtain from a credit reporting agency about you for the
purposes of:
(A) assessing any application by you for credit or commercial
credit or your credit worthiness;
(B) notifying other credit providers of a default by you; and
(C) exchanging information with other credit providers as to
the status of any credit or commercial credit provided by us
where you are in default with those other credit providers;
(ii) other Suppliers for the purpose of enabling us to provide the
Services to you (including the investigation and resolution of
disputes or complaints concerning the provision of the Services);
(iii) government agencies or individuals appointed by a
government (including the Telecommunications Industry
Ombudsman and Australian Communications and Media
Authority) responsible for the investigation and resolution of
disputes or complaints concerning your use of the Services for
the purpose of enabling investigation and resolution of those
disputes or complaints;
(iv) government agencies or individuals appointed by a
government (including the Telecommunications Industry
Ombudsman and Australian Communications Authority)
responsible for the investigation and resolution of disputes or
complaints concerning your use of the Services for the purpose
of enabling investigation and resolution of those disputes or
complaints;
(v) other entities with whom we have established or will
establish an affinity program to enable you to participate in the
affinity program;
(vi) other entities who provide services to us related to the
provision of the Services to you (including SMS, a mail house and
resellers (or contractors engaged by resellers) to enable them to
provide those services to us or administer payment arrangements
in connection with those services.
6.3 If required by law, we will provide you with access to your
personal information that we have in our possession upon
request.
6.4 If you change your address or other billing contact details,
you must notify us within 14 days.
7 YOUR COMPLIANCE
7.1 Compliance: You will ensure that you comply at all times with
all laws and obligations, including licence conditions, applicable
to the Services and their use.
7.2 You will not use the Service to transmit or publish any material
which is defamatory of any person, or any material in breach of
copyright or any obligations of confidentiality, or otherwise in
breach of any law, and you will indemnify us for any loss or
expense we suffer as a result of you doing so.
8 EQUIPMENT SUPPLIED TO YOU
8.1 Maintenance: You are responsible for maintaining any
equipment supplied by us or a Supplier. You indemnify us or the
Supplier against any loss or damage to the equipment unless it is
due to fair wear and tear.
8.2 Interference: You will ensure that any equipment supplied to
you, facilities and connections used in providing the Services, are
not altered, maintained, repaired or connected to or
disconnected from any power source or line except by a person
approved by us.
8.3 Access: We, or a person approved by us, may require access
to your premises from time to time in connection with the
provision and maintenance of equipment or Services. If you do
not own the premises, you must obtain the owner's permission for
access and warrant to us that you have such permission. You
indemnify us, or any serviceman approved by us, against a claim
by the owner of the premises in relation to such entry on the
premises. If you do not provide access as we reasonably request,
we may limit, suspend or cancel the Services.
8.4 Return: On the termination of this Agreement for any reason,
you must return any equipment to us or the relevant Supplier, or
make it available for collection, in accordance with our
instructions. If you fail to return the equipment or make it
available for collection:
(a) if the equipment is ours, we may recover the value of the
equipment, and the cost of recovering the equipment, from you
as a debt due; or
(b) if the equipment is a Supplier's, you must indemnify us
against any claims made by the Supplier in relation to the
equipment
9 TERMINATION
9.1 Termination: Either of us may terminate the Agreement
(whether it is a non-fixed length agreement or a fixed-length
agreement) by giving 30 days written notice to the other at any
time. The notice to cancel the service will be effective on the
date on which we receive that request.
9.2 Immediate Termination: We may terminate this Agreement
immediately:
(a) you have breached this Agreement;
(b) a provisional liquidator, liquidator, receiver or receiver and
manager or any other administrator of your business or assets is
appointed or if you enter into any composition with your
creditors; or
(c) you change your address or billing contract details without
notifying us in accordance with clause 6.4
9.3 You remain liable for all charges payable under the
Agreement in respect of Services up to the time of termination.
9.4 If the Customer is an individual, in the event of the Customer's
death, Yourtility reserves the right to terminate this
Agreement without notice as soon as Yourtility
becomes aware of the Customer's death. All outstanding
charges under this Agreement must be paid by the Customer's
estate.
10 LIMITATION OF LIABILITY
10.1 Performance: Because the performance of some Services
may be affected by your levels of use, the levels of use of other
users and of facilities related to providing the Services, we do not
warrant that Services will be free of blockages, delays or faults of
this kind and we will not be responsible for any loss or damage
which may result.
10.2 Warranties: Except as provided in clause 10.1 and as
required by law, and subject to clause 10.3, all terms, conditions,
warranties, undertakings, inducements and representations,
whether express or implied, statutory or otherwise, relating to the
provision by us of the Services are excluded, and we will not be
under any other liability in respect of any loss or damage
(including consequential loss or damage) however caused
(whether by negligence or otherwise) which may be suffered or
incurred or which may arise directly or indirectly in respect of the
Services.
10.3 Limitation of Liability: Our liability for any breach of any term, condition, warranty or under any remedy implied by law (which cannot be excluded), will be limited at our 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.
10.4 No Liability: We have no liability to you or to any other
person for:
(a) acts or defaults of other Suppliers;
(b) faults or defects in Services which are caused to any
material extent by your own conduct or misuse; or
(c) faults or defects that arise in telecommunication services not
provided under this Agreement (even if they are connected,
with our consent, to Services which we have arranged under this
Agreement) which are due to incompatibility with the Services.
11 CONFIDENTIALITY
11.1 We retain all intellectual property rights in any information
relating to the Services, the design or operation of our network
and other technical information relating to the provision of the
Services ("Confidential Information").
11.2 You will keep the Confidential Information confidential, and
will not allow any written or electronically recorded material to
be copied.
11.3 On the termination of this Agreement for any reason, you will
return all Confidential Information to us. If you have destroyed
these, or any of them, then you will give us a written declaration
accordingly.
11.4 You will keep confidential the manner in which we arrange
Services under this Agreement, including our charges and
discounts, and other financial information.
11.5 You will not use information which you acquire from us for
any purpose unauthorised in writing by us or in any manner
which may cause us loss, whether by way of damage to our
reputation, financial loss or otherwise.
12 FORCE MAJEURE
12.1 Subject to clause 14.7, we are not liable for:
(a) any delay in installing any Service,
(b) any delay in correcting any fault in any Service,
(c) failure or incorrect operation of any Service, or
(d) any other delay or default in performance under this
Agreement,
if it is caused by any event reasonably beyond our control,
including but not limited to war, accident, act of God, industrial
action, embargo, delay or failure or default by any other
Supplier.
13 ASSIGNMENT
13.1 You will not assign, charge or otherwise deal with your rights
under this Agreement except with our prior written consent.
13.2 We may, on 30 days' written notice, assign all our rights and
obligations under this Agreement.
14 GENERAL 14.1 Information: We may give to and receive from other
Supplier's information about your account, including particulars
of calls and call charges.
14.2 Governing law: Agreement is governed by the state and
federal laws of Australia.
14.3 Entire Agreement: This Agreement contains the whole
understanding between us to the exclusion of any prior or
collateral Agreement or understanding of any kind relating to
the Services.
14.4 No reliance: You acknowledge that you enter into this
Agreement entirely as a result of your own enquiries and that you
do not rely on any statement, representation or promise by us or
on our behalf not expressly set out in this Agreement.
14.5 Release: You accordingly release us and each of our
officers, agents and advisers from all claims, suits and demands
of every kind (including negligence) arising from the relationship
of the parties concerning this Agreement before it was signed,
and from the negotiations leading to it.
14.6 Waiver: The failure by either party to exercise any right or
remedy under this Agreement in a timely manner does not
constitute acceptance of the matter which gave rise to the right
or remedy, nor that party's waiver of such right or remedy.
14.7 Customer Service Guarantee: To the extent applicable, the
Customer Service Guarantee applies to the provision of Services
under this Agreement.
14.8 Standard Form of Agreement: These terms and conditions
have been formulated under section 479 of the Telecommunications Act and filed with the Australian
Communications Authority and will be referred to as the
Yourtility Standard form of Agreement : Revised 15.06.07