1. Terms and Conditions - Internet Service

1.1 By making your Request for Service you agree that:

• you must comply with this Agreement;
• you are over the age of 18 years;
• you are legally capable of entering into this Agreement;
• all information provided in your application is true and correct to the best of your knowledge and belief; and
• your Computer and DSL modems and routers meets, and will continue to meet for the Term, the System Requirements.

1.2 We may amend this Agreement at any time without notice to you. However, if the proposed amendment represents a material change to this Agreement to your detriment, we will give you 30 days' notice of the proposed amendment by posting it on our website at http://www.empcom.net/

2. Associated Documents

2.1 In addition to complying with these Terms of Service, you must comply with the terms of:

1. your Request for Service;
2. your Plan Summary;
3. the EMPCOM Acceptable Use Policy;
4. the User Privacy Policy; and
5. any EMPCOM Terms of Use, together, the "Associated Documents". These Terms of Service and the Associated Documents together form EMPCOM's Terms and Conditions.

2.2 If you breach a term of an Associated Document we are entitled to terminate this Agreement under clause 17.2

3. Term

3.1 This Agreement commences on the Commencement Date.

3.2 Subject to earlier termination under this Agreement, the Term of this Agreement will continue for the Fixed Period.

3.3 Upon expiry of the Fixed Period, this Agreement will continue on the same terms and conditions on a month-by-month basis until an Upgrade occurs under clause 4 or this Agreement is terminated under clause 17.

3.4 For each Term Upgrade, subject to earlier termination under this Agreement, the Term will continue for the new Fixed Period for the Term Upgrade.

4. Early Termination and Upgrade

4.1 If you terminate this Agreement prior to the end of the Fixed Period you will become liable to pay an amount equal to: (Monthly fee x Number of months or part thereof remaining until the end of the fixed period) + any other fees outstanding which amount is referred to in this Agreement as the "Termination Fee". The full amount of the Termination Fee can also be payable in other circumstances as set out in this Agreement.

4.2 By notice to us (by telephone or online) during the Term, and subject to our prior approval, you may Upgrade to another Plan without any obligation to pay the Termination Fee. However, for a Service Speed Upgrade you must pay us the Service Speed Upgrade Fee.

4.3 If you choose to Upgrade to another Plan under clause 4.2: your request to Upgrade will be deemed to be your Request for Service for the purposes of this Agreement; and this Agreement will continue on the same terms and conditions in respect of your new Plan.

4.4 Upgrades take effect from your next Billing Date following the date of notification provided that a request to Upgrade has been lodged at least 5 days before your next Billing Date. A Service Speed Upgrade is deemed as having occurred on your next Billing Date following the date of notification even though it may actually take effect several days either side of your next Billing Date.

5. Our Responsibilities

5.1 Under this Agreement we will: receive and assess your Request for Service to determine whether

a. the Broadband Service is commercially available in your area;

b. an ADSL connection necessary for the provision of the Broadband Service is available at your local telephone exchange; and

c. your telephone service is technically able to make an ADSL connection necessary for the provision of the Broadband Service; if we are able to provide your telephone service with the Broadband Service, arrange for the activation at your local telephone exchange of the ADSL connection to your Premises through your telephone service; and provide the Broadband Service to you for the Term.

6. Broadband Service

6.1 The Broadband Service is an Asymmetric Digital Subscriber Line (ADSL) service provided by us to the telephone service specified in your Request for Service.

6.2 You acknowledge that:

1. we may modify the Broadband Service from time to time as we consider necessary to continue, improve and enhance the Broadband Service;
2. we may obtain ADSL transmission capacity from third party service providers to provide you with the Broadband Service;
3. we may use our affiliates, vendors or subcontractors to provide any of the services specified in this Agreement;
4. all telephone equipment connected to your telephone service (which may include security alarm monitoring equipment) is required, at your cost, to be isolated from ADSL interference by installation of one or more ADSL line filters and/or splitters;
5. installation of the Equipment and Software may cause some temporary disruptions to your telephone service;
6. we cannot provide the Broadband Service if your telephone service is disconnected for any reason;
7. the actual throughput Speeds achieved with the Broadband Service may be lower than the Speeds specified for your Plan in the Plan Summary, which are maximum theoretical Speeds;
8. the Broadband Service may be unavailable on some telephone services or in conjunction with some third party services active on telephone services; and
9. we are unable to give any service level commitment for the Broadband Service due to the nature of the ADSL service and cannot guarantee that the Broadband Service will work on your telephone service.

7. Email

7.1 As part of our provision of the Broadband Service we must provide you with a User name Email Address and the facility to send and receive email.

7.2 We must also provide you with additional Email Addresses as set out in your Plan. As User name Email Address holder, you are responsible for all activity from your User name Email Address and additional Email Addresses.

7.3 If we send a notice to you by email, we will send it to your User name Email Address.

7.4 You acknowledge that the Broadband Service is not a secure and confidential method of communications and you transmit and receive data on the Broadband Service and via the Email Addresses at your own risk.

8. Termination before the Activation Date

8.1 You may terminate this Agreement by giving us notice (by telephone or online) of termination before the Activation Date.

8.2 Upon such notice of termination, we will charge your account and you must pay the Administration Fee.

8.3 You and we acknowledge that the amount of the Administration Fee is a genuine pre-estimate of the loss or damage suffered by us arising from the termination of this Agreement before the Activation Date.

9. Installation, Your Premises, and Your Computer

9.1 Self Installation Only
It is your responsibility to supply your own modem or other devices for use with the Broadband Service: you must first obtain approval from EMPCOM; and EMPCOM reserves the right to amend this Agreement to reflect your provision of such devices, including increasing the Fees.

10. Software

10.1 We grant to you a revocable, non-exclusive license to use the Software only on your Computer in conjunction with the Broadband Service and in accordance with the terms and conditions of this Agreement.

10.2 We may provide you with upgrades, updates or enhancements to the Software from time to time.

10.3 You must not sublicense, assign, share, sell, rent, lease or otherwise transfer your right to use the Software.

10.4 Except as permitted under the Copyright Act 1968 (Cth), you must not and must not procure another to copy, translate, adapt, modify, alter, decompile, disassemble, reverse engineer or create any derivative work of the Software or alter or remove any notifications of Intellectual Property Rights applied to the Software.

10.5 You acknowledge that you do not acquire ownership of any Intellectual Property Rights in the Software.

10.6 If this Agreement is terminated your licence to use the Software is also terminated. You must then, if requested, return the Software and any copy of the Software to us immediately.

10.7 Any Software that is owned by a third party is subject to the terms and conditions provided with that Software and not to the terms and conditions of this Agreement. We will not be responsible for such third party Software.

10.8 Except as otherwise required by law, any liability of a third party developer or supplier of Software that we provide to you is excluded. Where it may not be excluded, to the extent permitted by law, it is limited to the resupply or the cost of resupply of the relevant software, at the option of that third party developer or supplier.

11. User Names and Passwords

11.1 You will receive one or more user names and passwords to use in association with the Broadband Service and other confidential information. You are responsible for maintaining the confidentiality of your user names and passwords and other confidential information relating to the Broadband Service, and accept full responsibility for all activities that occur under your user names and passwords.

11.2 You agree to immediately notify us of any unauthorised use of any of your user names or passwords.

12. Use of the Broadband Service

12.1 You agree that you or another responsible adult will monitor any use of the Broadband Service by a minor. We will not be responsible for any Internet content that may be accessed using the Broadband Service, including Members-only Content.

12.2 You do not acquire any Intellectual Property Rights in the Broadband Service or any content provided as part of the Broadband Service.

12.3 You agree that you are responsible for all activity and usage of the Broadband Service and will be responsible for payment of all usage related to the Broadband Service under your user names and passwords (whether authorised or not).

12.4 We reserve the right to take any responsive action we deem appropriate, where there are reasonable grounds for suspecting that illegal or unacceptable usage of the Broadband Service is occurring, as set out in the EMPCOM Acceptable Use Policy. We co-operate fully with Federal and State Police and other bodies investigating unlawful behaviour on or via our Broadband Service. We reserve the right to suspend our provision of the Broadband Service to you in accordance with clause 17.1 if your use is subject to any investigation.

13. Relocation of Your Premises

13.1 If you notify us that you wish to move from your Premises to new premises ("your New Premises") during the Term and continue using the Broadband Service, and EMPCOM determines in its absolute discretion that the Broadband Service may be provided on the same terms and conditions at your New Premises: you must pay the Relocation Fee; and we must provide the Broadband Service at your New Premises on the same terms and conditions for the remainder of the Term.

13.2 If you notify us that you wish to move from your Premises to your New Premises during the Term and continue using the Broadband Service, and EMPCOM determines in its absolute discretion that the Broadband Service may not be provided on the same terms and conditions at your New Premises, you are deemed to have given notice of termination under clause 17.4.

14. Fees and Payments

14.1 By providing your credit card details you irrevocably authorise EMPCOM to charge the Fees to your credit card in accordance with your Plan and these Terms of Service. Every time you use the Broadband Service, you reaffirm that we are authorised to charge the Fees to your credit card. You must ensure that there are sufficient funds in or available credit on your credit card to pay the Fees to us in the amount and in the manner specified in the Plan Summary.

14.2 The Fees include: the Set UpLine Activation Fee Fee , which is any the fee payable for the Starter Kit, and the Line Connection on your initial Billing Date; the Monthly Fee, which is a fee payable commencing on the Billing Date for each month (or part thereof) that we provide you with access to the Broadband Service; the Relocation Fee, which is a fee payable under clause 13 if you relocate your Premises during the Term; the Professional Installation Missed Appointment Fee, which is a fee payable under clause 10.1 if you miss your Professional Installation appointment; the Service Speed Upgrade Fee, which is a fee payable under clause 4.2 if you change to a higher Speed Plan; The Administration Fee, which is a fee payable under clause 8 and is in respect of our administrative costs incurred up to and arising from termination of this Agreement; the Termination Fee, which is a fee payable under clauses 17.2 or 17.4 and is the amount equal to the Fees which would have been, but for the termination of this Agreement, payable for the remainder of the Fixed Period; and any other fees which are specified in the Plan Summary.

14.3 We may charge you interest on late payments at the rate specified from time to time by the St George Bank for its Visa Classic Credit Card (with interest free period).

14.4 You acknowledge that you may incur additional costs in accessing specific content on the Internet, for which we will not be liable.

14.5 Capitalised expressions in this clause bear the same meaning as those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). If a party makes a Taxable Supply in connection with this Agreement for a Consideration which represents its Value, then the Recipient of the Taxable Supply must also pay, at the same time and in the same manner as the Value is otherwise payable, the amount of any GST payable in respect of the Taxable Supply.

15. Personal Information

You acknowledge that Empcom may give information about you to a credit reporting agency for the following purposes:

a. To obtain a consumer credit report about you; and/or
b. To allow the credit reporting agency to create or maintain a credit information file containing information about you; provided that:
c. This information is limited to:
1. identity particulars - your name, sex, address (and the previous two addresses), date of birth, name of employer and drivers licence number;
2. your application for credit or commercial credit - the fact that you have applied for credit and the amount;
3. the fact that Empcom is a current credit provider to you;
4. payments which are overdue by more than 60 days and for which debt collection action has started;
5. advice that your payments are no longer overdue in respect of any default that has been listed;
6. information that, in the opinion of Empcom, you have committed a serious credit infringement (that is, acted fraudulently or shown an intention not to comply with your credit obligations); and
7. dishonoured cheques - cheques drawn by you for $100 or more which have been dishonoured more than once; and
8. this information may be given before, during or after the provision of credit to you.

d. You agree that Empcom may obtain information about you from:

• a business which provides information about the commercial credit worthiness of persons; and/or
• a credit reporting agency, for the purpose of assessing your application for consumer credit.

e. You agree that Empcom may exchange information about you with those credit providers names in your credit application or names in a consumer credit report issued by a credit reporting agency for the following purposes:

1. to assess an application by you for credit;
2. to notify other credit providers of a default by you;
3. to exchange information with other credit providers as to the status of this credit facility where you are in default with other credit providers; and/or
4. to assess your credit worthiness.
5. You acknowledge that the information exchanged pursuant to clause 5.3 can include anything about your credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act. You acknowledge that, if you do not bar calling line identification in respect of call made using the Service, your telephone number may be sent automatically to the equipment of the called party and you shall have no claim against Empcom in this regard.

16. Liability

16.1 Due to limitations that may be placed on us if we obtain ADSL transmission capacity from a third party, we provide the Broadband Service on an "as is" basis. You acknowledge that you have no claim against us or any third party service provider for loss or damage arising from the provision or failure to provide the Broadband Service or in connection with this Agreement.

16.2 We do not warrant that the Broadband Service will work or be uninterrupted or error-free. We cannot guarantee a timeframe for restoration of the Broadband Service should it fail.

16.3 We are not liable for any breach by you of this Agreement or use or misuse of the Broadband Service.

16.4 All statutory or implied conditions and warranties are excluded to the extent permitted by law. To the extent permitted by law, liability under any condition or warranty which cannot legally be excluded is limited to resupplying the goods or services or paying the cost of that resupply, at our option.

16.5 Subject to clause 19.4, we limit our liability for breach of this Agreement and all loss, damage, liability, expense, cost or charge suffered or incurred by you in connection with the Broadband Service (whether arising in contract, tort (including negligence) or under statute) to resupplying the goods or services which gave rise to the loss or damage or paying the cost of that resupply, at our option.

16.6 We exclude all liability to you (whether arising in contract, tort (including negligence) or under statute) for any indirect or consequential loss or damage you may suffer or incur in connection with the Broadband Service.

16.7 You must indemnify us against any loss, damage, liability, expense, cost or charge arising directly or indirectly from or incurred in connection with: your breach of this Agreement; or your negligent act or omission or wilful misuse of the Broadband Service, Equipment or Software.

16.8 You must release and indemnify us and any third party service provider we use to provide the Broadband Service, its infrastructure or ADSL transmission capacity from all liability (including third party claims) arising from the following (to the extent that the liability is caused by the provision or cancellation of the Broadband Service): disruption in the delivery of telephone services; cancellation of the ADSL service in respect of the Broadband Service for any reason; suspension of the provision of the Broadband Service to particular Internet Protocol (IP) addresses; cancellation of or refusal to provide services deemed to be incompatible with the provision of the ADSL service on the analog telephone line; and possible breaches of the Telecommunications (Customer Service Guarantee) Standard 2000 in respect of the issues specified in this clause 16.8.

17. Suspension and Termination

17.1 Notwithstanding and without prejudice to the rights in clauses 17.2, 17.3 and 17.4, we may suspend our provision of the Broadband Service immediately without notice to you if you breach a term of this Agreement. We may cease such suspension upon remedy of the breach. You will still be liable to pay the Monthly Fee during the period of suspension.

17.2 We may terminate this Agreement immediately by giving you notice if you breach a term of this Agreement (this includes a breach of these Terms of Service, the EMPCOM Acceptable Use Policy, the EMPCOM Privacy Policy or any EMPCOM Terms of Use). You must then pay the Termination Fee to us, which will be charged to your account on termination.

17.3 We may terminate this Agreement without cause at any time immediately by giving you notice. In such case, you will not then have any obligation to pay the Termination Fee.

17.4 You may terminate this Agreement at any time by giving us 1 month's notice (by telephone or online). You must then pay the Termination Fee to us, which will be charged to your account on termination.

17.5 You and we acknowledge that the amount of the Termination Fee is a genuine pre-estimate of the loss or damage suffered by us arising from the termination of this Agreement before the expiry of the Fixed Period.

18. Unforseen Events

18.1 We are not liable for any delay or failure to perform an obligation under this Agreement caused by technical difficulties beyond our reasonable control or other matters beyond our reasonable control including acts of god; war, riot, insurrection, vandalism or sabotage; strike, lockout, ban, limitation of work or other industrial disturbance; or law, rule or regulation of any government or governmental agency or executive or administrative order or act of general or particular application ("Unforseen Event").

18.2 We must notify you as soon as practical of any anticipated delay or failure caused by an Unforseen Event. The performance of our obligations is then suspended for the period of delay caused by the Unforseen Event.

18.3 If: performance of an obligation is permanently prevented by an Unforseen Event; or a delay caused by the Unforseen Event exceeds 14 days, we may terminate this Agreement at the expiration of not less than 14 days' written notice to you. In that case no Termination Fee is payable by you and no loss, liability or claim will be payable by us.

19. General

19.1 You must not assign or transfer this Agreement except with our prior written consent. We may not assign this Agreement unless we give prior written notice to you.

19.2 We may use sub-contractors to supply the Broadband Service.

19.3 Any notice given by us to you in connection with this Agreement may be given by any method we choose including sending an email to your User name Email Address.

19.4 Notwithstanding any delay, we do not waive our rights under this Agreement unless the waiver is in writing and signed by our authorised representative.

19.5 If anything in this Agreement is unenforceable, illegal or void then it is severed and the rest of this Agreement remains in force.

19.6 This Agreement is the entire agreement and understanding between you and us on everything connected with the Broadband Service.

19.7 In this Agreement reference to the singular includes the plural and the plural includes the singular.

19.8 The law of New South Wales governs this Agreement and you submit to the non-exclusive jurisdiction of the courts of New South Wales and of the Commonwealth of Australia.

20. Definitions Used in this Agreement

20.1 "Acceptable Use Policy" means the current EMPCOM Acceptable Use Policy published by us on our website and varied in accordance with clause 1.2, which specifies what constitutes your acceptable use of the Broadband Service.

20.2 "Activation Date" means the date upon which the ADSL connection to your Premises is activated at your local telephone exchange and available for use. You can monitor the progress of your Request for Service and determine whether your service has been activated on our website or by calling us.

20.3 "Administration Fee" means the fee specified in the Plan Summary, and payable under clause 9, in respect of termination of this Agreement before the Activation Date.

20.4 "ADSL" (or Asymmetric Digital Subscriber Line) means a form of digital subscriber line which provides asymmetric transmission of data at a bandwidth depending upon your Plan and on the length and quality of the telephone line connecting your Premises to your local telephone exchange.

20.5 "Agreement" means these Terms of Service and the Associated Documents, which together form the "EMPCOM Terms and Conditions".

20.6 "EMPCOM", "we" and "us" means EMPCOM Pty Limited ABN72 088 110 258, IBC, Australian Technology Park, Eveleigh NSW 1430, and includes our employees, agents and contractors, and "our" has a corresponding meaning.

20.7 "Associated Documents" means: your Request for Service; your Plan Summary; the EMPCOM Acceptable Use Policy; the User Privacy Policy; and any Terms of Use.

20.8 "Billing Date" means: The "Billing Date" is the 1st day of every calendar month The Billing cycle starts on the 1st day of each calendar month. If the service starts during the month the first bill will be for a pro rata amount for that month. For each subsequent month of service will be charged at the plan rate

20.9 "Broadband Service" means the EMPCOM branded broadband Internet content distribution service operated by us in Australia, described in clause 6.

20.10 "Commencement Date" means the date upon which you make your initial Request for Service (and not the date upon which you request any Upgrade).

20.11 "Delivery Address" means the address specified in your Request for Service to which the Starter Kit will be delivered.

20.12 "Email Address" means the alphanumeric string used to specify the source or destination of an electronic mail message.

20.13 "Equipment" means the new or refurbished devices (which may include a modem, filter, central splitter, associated cables and CD) that we provide togenerally provided by you to use with the Broadband Service, including any associated documentation.

20.14 "Fees" means the fees payable for the Broadband Service specified in the Plan Summary and include the:

1. Line Activation Fee;
2. Monthly Fee;
3. Relocation Fee;
4. Service Speed Upgrade Fee;
5. Administration Fee;
6. Termination Fee; and
7. any other fees listed.

20.15 "Fixed Period" means: the period commencing on the Billing Date and specified in your Request for Service in accordance with the Plan you select; or for each Term Upgrade, the period commencing on the Billing Date following the Upgrade and specified in your Request for Service in accordance with the new Plan you select.

20.16 "Intellectual Property Rights" means all intellectual property rights including copyright, trade mark, design, patent and semiconductor or circuit layout rights.

20.17 "Line Connection" means provisioning of ADSL on telephone line by network provider.

20.18 "Line Connection Fee" means a once off, upfront connection fee specified in the Plan Summary for your Plan.

20.19 "Monthly Fee" means the fee specified in the Plan Summary for your use of the Broadband Service (excluding the Dial Back-Up Service).

20.20 "Personal Information" means information or an opinion that can identify an individual.

20.21 "Plan" means a price plan as specified on our website.

20.22 "Plan Summary" means the current Plan Summary for each individual Plan as published by us on our website and varied in accordance with clause 1.2.

20.23 "Professional Installation" means an installation under clause 9.1.

20.24 "Professional Installation Missed Appointment Fee" means the fee specified in the Plan Summary, and payable under clause 9.1.

20.25 "Relocation Fee" means the fee specified in the Plan Summary for relocation under clause 13.

20.26 "Request for Service" means your request to use the Broadband Service, which may be in the form of a hard copy document, soft copy document or verbal instructions recorded by us over the telephone.

20.27 "Self-Installation" means an installation under clause 9.2.

20.28 "Service Speed Upgrade" means an upgrade from the Plan specified in your Request for Service to another Plan which has fees per month higher than the Fees payable per month and a faster Speed. A Fixed Period Upgrade and a Term Upgrade may also be a classified as a Service Speed Upgrade.

20.29 "Service Speed Upgrade Fee" means the fee specified in the Plan Summary, and payable under clause 4.2.

20.30 "Set Up Fee" means the fee payable for the Equipment, Line Connection and the Professional Installation (if any) as set out in the Plan Summary for your Plan.

20.31 "Software" means any computer software we provide to you to use with the Broadband Service, including any associated documentation.

20.32 "Speed" means the bandwidth of the Broadband Service.

20.33 "Starter Kit" means the Equipment and Software and instructions for their installation on your Computer.

20.34 "System Requirements" means the current computer hardware and operating system software required to obtain the Broadband Service (in conjunction with the Equipment) as published by us on our website and varied in accordance with clause 1.2.

20.35 "Term" means the term of this Agreement set out in clause 3.

20.36 "Terms of Use" means any terms governing the use of certain portions of the Broadband Service which are set out on our website where these portions of the Broadband Service are made available to you.

20.37 "Term Upgrade" means a change from the Plan specified in your Request for Service at the end of a Fixed Period, to a new Plan with a new Fixed Period.

20.38 "Termination Fee" means the amount calculated in accordance with the formula set out in clause 4.1.

20.39 "Upgrade" means either: a Fixed Period Upgrade; a Service Speed Upgrade; Term Upgrade, or all three, depending on the context.

20.40 "User name Email Address" means the Email Address containing the first user name that you select in respect of the Broadband Service.

20.41 "User Privacy Policy" means the current EMPCOM Privacy Policy as published by us on our website.

20.42 "you" means the person specified as the customer in your Request for Service and "your" has a corresponding meaning.

20.43 "your Computer" means the computer on which the Software will be installed and which is used by you to access the Broadband Service.

20.44 "your Plan" means the Plan specified in your Request for Service, on which you choose to acquire the Broadband Service.

20.45 "your Premises" means the premises specified in your Request for Service to which the Broadband Service will be provided.