Terms and Conditions

This document sets out the terms of an agreement for the provision of ADSL services by APCS to the customer who places an on-line or telephone order for the Service. This document applies to all ADSL and dial-up plans.

Things you should know:

1.

DEFINITIONS

• Acceptable Use Policy means the conditions of use applicable to the service as published by APCS Internet from time to time (click here to view the current version);
  
  
• Access Period means a renewable period of one calendar month, starting from the Activation Date;
  
  
• Activation Date means the date that the Service is available for use by you, provided that we have given you advance notice of this date.
  
  
• ADSL Hardware means hardware, including ADSL modems and line filtering equipment, which you order from APCS Internet when you place an order for the Service.
  
  
• Charges means the charges payable by you to APCS Internet pursuant to this agreement, in accordance with the information given to you at the time you place an order for the Service;
  
  
• Internet means the worldwide connection of computer networks providing for the transmittal of data by methods including electronic mail, the World Wide Web and other data transmission protocols;
  
  
• Minimum Period means the minimum period (for example, 18 months) for which you must stay connected to the Service as set out in the description of the plan you purchase. Not all our plans have a Minimum Period.
  
  
• Minimum Period Termination Charge means the number of months remaining in the Minimum Period as at the date of termination multiplied by the monthly access Charge applicable to your Service.
  
  
• Phone Connection means a standard telephone service purchased by you in your name from Telstra or a reseller of Telstra and connected to the Telstra public telecommunications network;
  
  
• Service means permanent ADSL connection access to APCS Internet’s connection to the Internet, the provision of a back-up dial up connection for those times when an ADSL connection is unavailable, the provision of email facilities and space on our World Wide Web server as set out in the description of the plan that you order;
  
  
• Unlimited Plan means access that that does not have a component of Usage Charges.
  
  
• Usage Charges means that part of the Charges that relate to any or all of the following:
  (a) the amount of data downloaded by you; and/or
  (b) the amount of data uploaded by you; and/or
  (c) the time you spend connected to the service;
  as set out in any information given to you at the time you place an order for the Service;
  
  
• Usage Plan means an access plan that involves a component of Usage Charges;
  
  
• World Wide Web means a method of representing and obtaining graphical and other data and linking data items used by Internet users.
  
  
• you means the customer who enters into this agreement (the customer must also be the account-holder of the standard telephone service which is to be connected to the Service).
  
  

2.

TERM AND ACCESS PERIOD

2.1

This Agreement starts on the date when you place an order for the Service using the APCS Internet on-line sign-up process or the telephone sign-up process.

2.2

APCS Internet will start providing the Service to you from the Activation Date for the duration of the Access Period or, if a Minimum Period applies, for the Minimum Period.

2.3

This agreement will automatically be renewed for subsequent periods of one month, starting from the monthly anniversary of the Activation Date, unless:

2.3.1

You give us at least 7 days notice before the end of the current Access Period that you wish to discontinue the service. If you give us less than 7 days notice, we may postpone the date of termination by one calendar month; or

2.3.2

We notify you in advance that we wish to discontinue providing the Service to you. We will only do this if:

2.3.2.1

we consider that you have breached these terms and conditions or the Acceptable Use Policy;

2.3.2.2

you disconnect your Phone Connection (including by changing service providers or moving premises); or

2.3.2.3

we are no longer able to supply the Service to you because our arrangements with our suppliers have ended and we have been unable to source alternative arrangements.

2.4

APCS Internet may adjust the Charges at the beginning of a new monthly period, provided that APCS Internet gives you at least 30 days advance notice of any increase.

2.5

If a Minimum Period applies and you cancel a Service under clause 2.3.1 or we cancel the Service under clause 2.3.2.1, you must pay the Minimum Period Termination Charge on the date your Service is terminated.

2.6

This agreement will automatically be renewed for subsequent periods of one month, starting from the monthly anniversary of the Activation Date, unless:

2.6.1

You cancel this agreement because you are moving premises; and

2.6.2

You apply to APCS Internet to provide ADSL services to you at your new premises for the remainder of the Minimum Period; and

2.6.3

The ADSL connection at your new premises is successfully provisioned.

APCS Internet may also reduce the Minimum Period Termination Charge at its discretion if APCS Internet is unable to provision an ADSL connection at your new premises.

3.

PROVISION OF SERVICE

3.1

APCS Internet, in accordance with the terms and conditions of this agreement, will provide the customer with the service by such means as APCS Internet determines.

3.2

APCS Internet will provide the service on a continuous basis during the term of this agreement. APCS Internet will inform the customer if the service is unavailable for access by the customer due to maintenance or any other foreseeable factor.

3.3

APCS Internet will provide you with all identification and log-in information required for connection to the Service.

3.4

If you wish to change you account down in speed or monthly value for the Service, you must request a change at least 14 days before the end of the current Access Period. The change will take effect at the start of the next Access Period. In addition to any changes in monthly fees, APCS Internet will charge a fee of $60 to your credit card at the time you request the change. If you have committed to a Minimum Period that applies to the plan you purchased this fee will be $119.

4.

CUSTOMER OBLIGATIONS

4.1

You must provide your own access facilities, including the Phone Connection.

4.2

You are responsible for maintaining the secrecy and confidentiality of all identification and log-in information required by the customer to access the service.

4.3

You agree not to 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 service or APCS Internet.

4.4

You are liable for all fees resulting from use of the service accessed through your identification or log-in information, whether authorised by you or not.

5.

USE OF THIS SERVICE

5.1

You must comply with all reasonable directions by APCS Internet regarding the access and use of the Service.

5.2

Throughout the Access Period, you must comply with the Acceptable Use Policy.

5.3

You warrant that in accessing and using the Service you will only use software that you are legally entitled to use.

5.4

You acknowledge that APCS Internet 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 APCS Internet will not be held responsible in any way for any content or information accessed via the Service (except where APCS Internet actually provides such content or information).

5.5

APCS Internet disclaims all or any liability for any material on the Internet that you may find offensive, upsetting, defamatory or personally offensive.

5.6

You must not access, nor permit any other party to access, the Service for any purpose or activity of an illegal or fraudulent nature.

5.7

You 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.

5.8

You are responsible for preparing and maintaining sufficient back-up files and data storage capacity for all your data including electronic messages.

5.9

APCS Internet has no responsibility to provide training in the use of the service pursuant to this agreement.

6

CHARGES

6.1

You must pay the charges at the rate and in the manner specified in the plan description for the plan you ordered. Payment for any set-up fee, the provision of the Service in the first Access Period and for any ADSL Hardware you order must be made at the time you order the Service. If we later determine that we are unable to provide the Service to you, we will refund Charges as follows:

6.1.1

Charges for any set-up fee and provision of the Service during the Access Period will be refunded within 10 business days;

6.1.2

Charges for any ADSL Hardware will be refunded to you when we receive the ADSL Hardware from you, provided that such hardware is undamaged, in its original packaging and in saleable condition.

6.2

If you are on an Unlimited Plan, APCS Internet will automatically charge your credit card in advance for access Charges in an Access Period, 3 days before the start of that Access Period. If you are on a Usage Plan, APCS Internet will automatically charge your credit card in advance for access Charges in an Access Period at the start of that Access Period. At the same time, APCS Internet will also charge your credit card the Usage Charges (if any) in the previous Access Period.It is your responsibility to ensure that:

6.2.1

you have provided correct credit card details to us; and

6.2.2

there are sufficient funds on your credit card at the time when payments are deducted.

6.3

If a credit card transaction is declined for any reason (other than a failure in our or our financial institution’s payment processing systems), we will suspend your account at the end of the current Access Period. As well as suspending your account, we may terminate this Agreement if Charges remain outstanding beyond the end of any Access Period for which you have paid. We will make reasonable efforts to contact you to inform you that a credit card transaction has been declined.

6.4

Until we terminate this Agreement, we may continue trying to debit your credit card even though a previous attempt was declined. We may also impose a reasonable processing fee for declined credit card transactions, provided we have given you prior notice of this fee.

6.5

If you make payment of a Charge while your access to the Service is suspended, we will enable your access to the Services as soon as possible. We are not liable to refund any Charges for the period of any suspension.

6.6

Except as required by relevant legislation, or as set out in this clause, no Charges will be refunded to you.

6.7

From time to time, a discounted introductory offer may be advertised for various connection plans. If existing customers are eligible for the introductory offer, a new set-up fee may be payable by customers taking advantage of the offer.

6.8

If any payment remains overdue by more than 30 days we may impose a debt recovery charge of $25 in order to recover the debt.

7.

CONTINUOUS SERVICE

7.1

APCS Internet will use reasonable commercial endeavours to provide the Service continuously. However, APCS Internet makes no guarantees that access will be available at all times and, to the extent permitted by law, will not be liable for any losses whatsoever that may be incurred as a result of the unavailability of the Service. You acknowledge that there may be a reduction in availability during periods of maintenance and enhancement of the Service.

8.

8.1

You agree and acknowledge as follows:

8.1.1

The Service can only be provided to you if the cable that runs between your premises and the nearest exchange is owned by Telstra. This means that you must purchase a standard telephone service from Telstra or a reseller of Telstra in order to receive the Service.

8.1.2

If you do not currently purchase your standard phone service from Telstra or a Telstra reseller, then APCS Internet is unable to provide the Service to you at this time.

8.1.3

If, after you start receiving the Service, your standard phone service becomes disconnected, you move premises, or you transfer your phone services to someone other than Telstra or a Telstra reseller, this may mean that you will be unable to receive the Service. APCS Internet is not obliged to refund any of the fees you have paid in these circumstances.

8.1.4

If you move premises, this will be treated by APCS Internet as a disconnection. You may then apply for a new connection at your new premises.

8.2

Some services offered by your telecommunications service provider or another person may not be compatible with the Service. This includes, for example, Telstra’s “Easycall Multiple Number” and “Faxstream Duet” services.

8.3

The installation of the service on your Phone Connection may interfere with other services you receive, such as back-to-base security monitoring services. It may be necessary to install additional equipment, such as a central line splitters, filters and network termination devices, to ensure that these services continue to operate when an ADSL service has been installed.

8.4

You must inform any provider of monitoring services that installation of the ADSL service may cause temporary interruption of monitoring services and that installation of additional equipment may be required.

9.

INDEMNITY

9.1

You release and indemnify APCS Internet, its servants and agents against all actions, claims and demands which may be instituted against APCS Internet arising out of a breach of this agreement by you or arising out of an act or omission by any other person (such as an employee) for whose acts or omissions you are vicariously liable.

10.

IMPLIED TERMS

10.1

Subject to clause 9, any condition or warranty which would otherwise be implied in this agreement is hereby excluded.

10.2

Where legislation (such as the Trade Practice Act 1974 and state fair trading legislation) implies in this agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty will be deemed to be included in this agreement. However, to the extent permitted by such legislation, the liability of APCS Internet for any breach of such condition or warranty shall be limited, at the option of APCS Internet, to one or more of the following:

10.2.1

if the breach relates to goods:

• the replacement of the goods or the supply of equivalent goods;
• the repair of such goods;
• the payment of the cost of replacing the goods or of acquiring equivalent goods; or
• the payment of the cost of having the goods repaired; and

10.2.2

if the breach relates to services:

• the supplying of the services again; or
• the payment of the cost of having the services supplied again.

11.

LIABILITY OF APCS INTERNET

11.1

Except in relation to liability for personal injury (including sickness and death), to the extent permitted by law the aggregate liability of APCS Internet to the customer in connection with this agreement (whether in contract, tort including negligence, under statute or otherwise) in respect of any loss or damage (including consequential loss or damage) is limited to the Charges received by APCS Internet in the Access Period during which the liability arises.

12.

TERMINATION

12.1

In addition to the rights of the parties not to renew this agreement in accordance with clause 2.3, APCS Internet may terminate this agreement immediately if:

12.1.1

you breach any of your obligations and the breach continues for more than 5 days after we have given you notice of the breach;

12.1.2

(if you are an individual) you become bankrupt or insolvent;

12.1.3

(if you are a company) you become insolvent, or an administrator, receiver or liquidator is appointed;

13.

EVENTS BEYOND APCS INTERNET'S CONTROL

13.1

To the extent permitted by law, APCS Internet will not be liable for any defect in the provision of the Service which is caused by a reason beyond the reasonable control of APCS Internet. In particular (but without limitation) you acknowledge that:

13.1.1

continuity and connection speed of your Internet access depends on a wide range of factors, many of which are beyond the control of APCS Internet;

13.1.2

APCS Internet has no control over the accuracy or appropriateness of any information on the Internet;

13.1.3

APCS Internet is not responsible for any software available on the Internet;

13.1.4

Your Internet access may be interrupted or slowed by a variety of factors, including, but not limited to, equipment failure, the need for routine maintenance, and peak demand.

13.1.5

Connection speeds at the maximum theoretical speed of your equipment and the Service plan you purchase may not be achievable in practice.

14.

IP ADDRESSES

Any IP Address allotted to you by APCS Internet, whether as a static address or dynamically allocated:

14.1

remains the sole property of APCS Internet;

14.2

may be changed or revoked by APCS Internet at its discretion at any time; and

14.3

is not transferable.

15.

CONSUMER PROTECTION

15.1

Pursuant to Australian state and federal consumer protection legislation, you may have additional rights beyond those set out in these Terms and Conditions. Also, such legislation may imply additional terms or warranties in these Terms and Conditions which cannot be varied. Nothing in these Terms and Conditions is intended to be inconsistent with, or vary, such rights, terms or warranties.

16.

NOTICES

16.1

APCS Internet relies on email as its primary means of communication. APCS Internet will send notices to you by email as follows:

16.1.1

If you are a current customer of APCS Internet and your account is not suspended, the email will be sent to your primary APCS Internet user address;

16.1.2

If you are not a current customer of APCS Internet but you provide APCS Internet with an email address, APCS Internet will send notices to that address;

16.1.3

If you do not have an email address (or your APCS address is suspended), APCS Internet will make reasonable efforts to contact you by phone or mail.

16.2

If APCS Internet sends a notice to you by email, it is deemed to be received by you at the time that the communication leaves APCS Internet’s email servers or arrives in your APCS Internet mail box, unless APCS Internet receives an automatic notification of non-delivery within 24 hours.

16.3

You may send notices to APCS Internet:

16.3.1

By email to sales@apcs.com.au

16.3.2

By mail to 16 Bonville Station Road Bonville NSW 2450

16.3.3

By fax to 02 6653 4918

16.3.4

For some types of notices (such as changes in credit card details and contact details), APCS may make on-line forms available to you from your Account Management web page.

17.

LAW

17.1

The laws of NSW , Australia govern this Agreement and the parties submit to the non-exclusive jurisdiction of the laws of that state.

18.

CHANGES TO THIS AGREEMENT

18.1

APCS Internet may change these terms and conditions or the Acceptable Use Policy at any time by giving you 30 days notice. If the change adversely affects your rights or obligations under this agreement, you may cancel this agreement by notice to APCS Internet without penalty (including without paying any Minimum Period Termination Charge that would otherwise apply). To be effective, APCS Internet must receive your notice of cancellation before the change in the terms and conditions or Acceptable Use Policy becomes effective.