General Terms and Conditions (Standard Form of Agreement)
OMNIconnect is a Licensed Telecommunications Carrier and operates as a Carriageway Access Provider (CSP), Internet Service Provider (ISP), Application Service Provider (ASP) and Data Centre Provider (DCP) operating digital microwave and fibre optics networks and provides DSL and other access methods throughout Melbourne, Victoria and nationally.
The Customer has contracted OMNIconnect to provide chosen telecommunications Services.
These General Terms and Conditions will govern the relationship between OMNIconnect and the Customer, together with the Customer Service Agreement and Acceptable Use Policy (AUP) to form the Agreement in relation to the provision of products and services entered into. A Service Level Agreement (SLA) can also form part of this agreement for business grade customers upon request of the customer to OMNIconnect and upon agreement of OMNIconnect.
In the case that you wish to use additional Omniconnect services not detailed in the attached Service and Pricing Agreement, you will be asked to sign additional Service and Pricing Schedules which will form an addendum to this Agreement.
Customer Terms and Conditions Updated: September 20th, 2011
Definitions and Interpretations
"Access" means the telecommunication carriage access method provided by OMNIconnect.
"Agreement" means these General Terms and Conditions, Customer Order Form, any applicable Product Terms and Conditions and any other written conditions entered into.
"Acceptable Use Policy" means the conditions of use of Internet and carriageway. AUP will be available on the Website.
"Business Hours" means 9.00am to 5.30pm Monday to Friday excluding Public Holidays.
"Charges" means all monies due to OMNIconnect for use of the Service, in accordance with this Agreement.
"Confidential Information" means all information exchanged between the parties pursuant to this agreement, but does not include information that: is in the public domain; or enters the public domain without any breach of this Agreement.
"CPE" means Customer Premises Equipment owned and installed by OMNIconnect at Customer premises to supply service under this Agreement.
"Customer" means the business or organization that has entered into an Agreement.
"Customer Service Agreement" means the document containing description of products, services and pricing.
"Commissioning" means the handing over of Services following installation.
"Consumer" means a Customer that has or will have an annual spend with OMNIconnect.
"Customer Equipment" means the equipment of the Customer within Customer network that is beyond the demarcation point of OMNIconnect's Network.
"Effective Date" means the date the Term commences following Commissioning at which date the monthly Charges commence.
"GST" means the Goods and Services Tax under The New Tax System (Goods and Services Tax) ACT 1999 (Cth).
"Network" means the OMNIconnect telecommunications network and any other third party network engaged by OMNIconnect to provide services.
"OCDC" means the OMNIconnect Data Centre.
"Renewal" means to recontract the service agreement.
"Service" means products and services provided under the Agreement.
"Service Call-out" means a visit to a Customer site, due to any fault or delay caused by the Customer. Service Call-out and travel time charges may apply.
"Service Suspension" means temporary disablement of a service.
"Service Reconnection" means restoration of a suspended service.
"Site" means the premises of the Customer to which Services are delivered as set out in Customer Order Form.
"Term" means the Initial Term and all renewals thereof collectively commencing from the Effective Date.
"Termination" means the ending of the Agreement by either party under the terms of this Agreement or at the conclusion of the Term.
"Usage Charges" means the charges for Internet data charged by the Megabyte, for voice calls or any other variable charges.
"Website" means the OMNIconnect Website accessible on the Internet.
1. Customer Obligations
Billing and Charges
1.1. The Customer must pay OMNIconnect the amount(s) set out in the Customer Service Agreement as agreed.
1.2. Charges for Setup (where applicable) and first month Service are payable in advance upon invoice prior to Commissioning of Services. If payment is not received prior to Commissioning, Services will be provisioned in a decommissioned state until payment is made.
1.3. Monthly Service charges will commence upon OMNIconnect notifying Customer of Commissioning.
1.4. Payment for all contracted Service charges is required monthly in advance.
1.5. A power consumption surcharge of an additional $6/100W applies to any device that is not energy efficient as defined and listed at www.80plus.org
1.6. OMNIconnect will pass onto Customer its share of any future carbon tax imposed upon OMNIconnect for the consumption of power to equipment.
1.7. Pre-paid data not used in the specified time period will be forfeited.
1.8. Any variable charges or amounts resulting from data usage beyond any cap amount/s are calculated and invoiced in the following month services charges.
1.9. Data is billed on single direction of flow, whichever is deemed to be the greatest unless otherwise specified in the customer service agreement.
1.10. Methods of payment:
1.11. Direct Debit Authorisation
1.12. Overdue Accounts may attract an overdue account fee at the rate of 2% above Reserve Bank of Australia Cash Rate with a minimum of $10.00 per month.
1.13. Installations and Maintenance
1.14. Dispute of Invoice
If the Customer disputes the validity of any charges in an invoice:
2.1. The Agreement shall be for the Term specified in Customer Service Agreement. No month-to-month is available.
2.2. The Customer may negotiate to re-contract at any time during the Term.
2.3. Customer may provide OMNIconnect 30 days prior to the end of the Term, written notification of either Termination or Renewal.
2.4. Except as in clause 2.5, in the event that either party does not provide 30 days written notice to the other party of Termination or Renewal, the Agreement will automatically renew at the end of the Term for a successive contracted period of 12 months.
2.5. In case of Consumer, OMNIconnect may send a Renewal Notice 30 days prior to the end of the Term. In the event that Customer does not renew the existing Agreement, or execute a new Agreement, by the end of the Term to continue Service/s, then the Agreement will be deemed terminated and the Service/s decommissioned.
3.1. Prior to Commissioning
OMNIconnect may terminate this Agreement prior to completing the Installation and Commissioning if it is determined that the Services cannot be provided to the Customer for any reason. Upon any termination of this Agreement by OMNIconnect, the Customer will be refunded any amounts that they have paid for the Set-up Fee and/or Monthly Service Fee.
3.2. Early Termination by Customer
If the Customer cancels a service before the end of Term, the Customer must pay OMNIconnect the remainder of contract value and must cease all use of the software and equipment relating to the OMNIconnect services.
3.3. The Customer may terminate the service at any time with 30 days written notice only in the following circumstances:
3.4. Termination of Service prior to completion of the Term will render the Customer liable for full payment of all outstanding contract items, including but not limited to the following:
Suspension of Service
3.5. Suspension of Service due to non-payment of account and subsequent reconnection will require full payment of outstanding account plus a Service Reconnection Fee as applicable in the table below:
3.6. Termination by OMNIconnect for Material Breach
OMNIconnect may restrict and/or immediately terminate this Agreement or suspend the Service upon providing notice of Service Suspension or Termination to Customer at any time at its discretion for violation of any term of this Agreement including but without limitation to the following:
Effect of Termination
3.7. Upon Termination of Agreement, Service/s will be deactivated by 4pm on date of Termination.
3.8. Customer will permit OMNIconnect to access the Site to remove OMNIconnect's Equipment in a reasonable timeframe from date of Termination or the customer shall remove its own equipment, at its own expense, from the OCDC, being liable for any and all costs and or damages caused by the removal of their equipment.
3.9. Any termination of this Agreement shall not relieve Customer of any obligations to pay fees and costs accrued prior to the Termination and any other amounts owed by Customer to OMNIconnect as provided in this Agreement. The provisions contained in this Agreement that by their context are intended to survive termination or expiration will survive, including without limitation, the sections entitled, Privacy, Acceptable Use Policy, Disputed Charges, Term, Disclaimers; Limitation of Liability, Indemnification, Applicable law, Arbitration and General Provisions.
3.10. Should this Agreement be terminated for any reason, OMNIconnect will not be liable to Customer for compensation, reimbursement or damages on account of the loss of prospective profits, anticipated sales, goodwill or on account of expenditures, investments, leases or commitments in connection with Customer's use of the Services, or for any other reason whatsoever flowing from such Termination.
4. Dispute Resolution
4.1. Before resorting to external dispute resolution processes, OMNIconnect and the Customer must attempt to resolve any dispute internally. The customer may make a complaint to OMNIconnect by sending an email to: email@example.com
4.2. Either party must not start arbitration or court proceedings (except proceedings seeking interlocutory relief) until it has complied with Clause 4.
4.3. The party claiming the dispute must notify the other party that a dispute has arisen.
4.4. If a resolve cannot be met, either party may refer the dispute for mediation by the Australian Commercial Disputes Centre (ACDC – www.acdc.com.au) for resolution in accordance with the guidelines for Commercial Mediation of the ACDC.
5.1. OMNIconnect shall provide telephone support and email support to the Customer relating to the use and operation of the Services (other than problems with Customer Equipment, operating system software or any other software) as described in the Customer Service Agreement. However if the telephone support exceeds 15 minutes for email configuration and/or support, OMNIconnect reserves the right to invoice for support charges at the current applicable rate, available upon request from OMNIconnect. This does not apply to "remote hands" for colocation services.
5.2. OMNIconnect will troubleshoot and support the Customer on Services and OMNIconnect CPE issues pertaining to the OMNIconnect network and Services only, and reserves the right to determine that a problem or issue is the Customer's responsibility.
5.3. The Customer must ensure that any faults reported to OMNIconnect are located on the OMNIconnect network.
5.4. In the event that Customer requests a service call to Customer's Site and OMNIconnect determines in its sole discretion that the problem is Customer's responsibility, Customer shall reimburse OMNIconnect for the Service Call-Out at OMNIconnect's then current hourly rates for on-site service calls, including any and all minimum fees.
5.5. While OMNIconnect will use reasonable efforts to respond to Customer's enquiries, OMNIconnect assumes no responsibility to resolve any problem or defect in the Services, except as expressly provided herein.
5.6. Customer is responsible for integrating and troubleshooting Customer's local area network and internal network, as necessary. OMNIconnect will not be responsible for any loss of use of Services or degradation in performance resulting from Customer's use of incompatible equipment or for any damage to any additional equipment Customer connects to the OMNIconnect Equipment.
5.7. Service Level Agreement (SLA)
The OMNIconnect Service Level Agreement (SLA) is one of the most competitive in the Australian hosting industry.
To view our agreement please visit the Service Level Agreement page.
6. Service Terms and Conditions
6.1 Service Installation, Maintenance and Access to the OMNIconnect network are provided to the Customer subject to the following terms and conditions:
6.2. Use of the OMNIconnect Data Centre: The client and/or its representatives shall not do or participate in any of the following:
6.3. Cleanliness in the OCDC: The client shall not do the following, except as otherwise agreed to in writing by OMNIconnect:
7. Modifications of Service
8. OMNIconnect Legal Rights
8.1. OMNIconnect reserves the right to terminate or suspend Services at any time, after due consultation with Customer, and establishment of due cause, in accordance with OMNIconnect terms and conditions, without refund of prepaid access, or data usage.
8.2. OMNIconnect takes no responsibility for the legality or factual integrity of any information retrieved from files stored on OMNIconnect's servers, or servers hosted at OMNIconnect's hosting site.
8.3. OMNIconnect accepts no liability for damages or loss of income due to system downtime, connection difficulties, termination of the Customers' account, or the Customers' use of the OMNIconnect network or its Products and Services.
8.4. OMNIconnect reserves the right to act in an appropriate legal manner if there is evidence, either documented, recorded or circumstantial, that malicious, unauthorised, or irresponsible access of OMNIconnect's computer systems, or any other computer system accessible via OMNIconnect, is occurring or that any of these terms and conditions are being or are likely to be contravened.
9. Confidential and Proprietary Information
Each party of this agreement including directors, offices, shareholders and employees, shall not disclose information relating to either parties business, products, services, trade secrets, technical information, product design information, payment, and other proprietary information, with the exception of information:
The customer shall inform its employees and agents of the confidentiality obligations set forth herein. Customer shall take all steps reasonably necessary to assure that confidentiality is maintained by its employees and agents and shall take all reasonable steps requested by OMNIconnect to assure such confidentiality.
Customer shall indemnify and hold OMNIconnect harmless for any losses, claims, damages, awards, penalties, or injuries incurred by any third party, including reasonable legal fees, which arise from any alleged breach made under this Agreement, provided that OMNIconnect is promptly notified of any such claims. Customer shall have the sole right to defend such claims at its own expense. OMNIconnect shall provide, at the Customer's expense, such assistance in investigating and defending such claims as the Customer may reasonably request. This indemnity shall survive the termination of this Agreement.
11. Limitations on Warranties
11.1. OMNIconnect shall not be liable for any indirect, special, incidental, punitive or consequential damages, including but not limited to access or loss of data, business interruption, or loss of profits, arising out of the use of or the inability to use the Service.
11.2. Nothing in section 11 is intended to exclude, restrict or modify or have the effect of excluding, restricting or modifying warranties implied by law which by law cannot be excluded, restricted or modified, and these clauses shall be construed appropriately and (if necessary) any provision which would have such an effect shall be severed. If Part V of the Competition and Consumer Act 2010 or any similar or equivalent state legislation is applicable, OMNIconnect's liability for breach of any implied warranty will be limited to one of the following as determined by it in its absolute discretion:
12. Independent Contractor
Customer acknowledges and agrees that OMNIconnect is at all times acting and performing as an independent contractor with respect to the subject matter of this Agreement. Customer shall neither have nor exercise any control or direction over the methods by which OMNIconnect performs the Services. This Agreement shall not be construed as creating a partnership between the parties or as creating any other form of legal association that would impose liability upon one party for the act or failure to act of the other party.
EXCEPT AS SET FORTH IN SECTION 10, CUSTOMER ACKNOWLEDGES THAT THE SERVICES, AND THE OMNICONNECT NETWORK (INCLUDING ANY SOFTWARE AND ANY OTHER ITEMS USED OR PROVIDED BY OMNICONNECT IN CONNECTION WITH ANY SERVICES HEREUNDER) ARE PROVIDED "AS IS" OR "AS AVAILABLE." OMNICONNECT OR ITS AGENTS DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PERFORMANCE OF THE SERVICES OR THE NETWORK, OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, OMNICONNECT OR ITS AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES WHATSOEVER THAT THE SERVICES AND THE NETWORK WILL BE UNINTERRUPTED, NOT DELAYED, ALWAYS ACCESSIBLE, OR FREE OF HARMFUL COMPONENTS, ACCURATE OR ERROR-FREE.
14.2. Force Majeure
Except as otherwise provided herein, OMNIconnect shall not be liable, or be in breach of any provision hereof, for any failure or delay on its part to perform any obligation under any provision of this Agreement because of circumstances of force majeure, including, but not limited, any act of God, flood, fire, explosion, strike, lockout, labour dispute, war, insurrection, riot, sabotage, or any injunction, law, ordinance or demand or requirements of any governmental authority, or inability to procure or use materials, labour, equipment or energy sufficient to meet the Customer's needs, or any other cause whatsoever whether similar or dissimilar to those enumerated herein, beyond the reasonable control of OMNIconnect.
The Customer may not assign, without the prior written consent of OMNIconnect, any rights, duties or obligations under this Agreement to any person or entity, in whole or in part, whether by assignment, merger, transfer of assets, sale of stock, operation of law or otherwise. OMNIconnect may assign this Agreement at any time without notice to Customer.
14.4. Entire Agreement
The Agreement including but not limited to Customer Service Agreement, Product Terms and Conditions, AUP and any other documents associated including applicable documents on the Website, sets forth the entire agreement among the parties and merges and supersedes all prior discussions and agreements among them with respect to the subject matter hereof. Neither party shall be bound by any condition, definition, warranty or representation with respect to any term or condition other than those provided for in this Agreement.
14.5. Invalid Provision
In the event that any provision of this Agreement is held to be invalid or illegal for any reason, such determination shall not affect the remaining provisions which shall be construed and enforced as if such illegal or invalid provision had never been included.
14.6. Descriptive Headings
All section headings, titles and subtitles contained herein are inserted for convenience and reference only and are to be ignored in any construction of the provisions hereof.
Privacy statement is available at our website.
All notices required or permitted shall be in writing and be deemed delivered when delivered in person or deposited in the mail, postage prepaid, addressed as follows:
OMNIconnect Pty Ltd
14 Elite Way,
Customer contact details as in Customer Service Agreement
Such addresses may be changed from time to time by either party providing written notice in the manner set forth above.
14.9. Applicable Law
This Agreement is governed by the law of Victoria, Australia, and the Customer and OMNIconnect submit to the non-exclusive jurisdiction of the Victorian courts.