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General Terms

1. INTRODUCTION

1.1 Terms and Conditions

SkyMesh Pty Ltd, trading as SkyMesh, ’us or we’, supplies Services on the terms and conditions in your Agreement with us. If you obtain or seek to obtain Services from us, you do so in accordance with the terms and conditions contained in the documents which comprise your Agreement with us.

Standard Form of Agreement

These are our General Terms. When we supply you with a Service or any ancillary goods or services, our General Terms apply by agreement between us or, failing agreement, under section 479 of the Telecommunications Act 1997.

Your Agreement

Your Agreement with us comprises:

  1. your Application;
  2. any Conditions of Service;
  3. any Plan or Online Application Notes
  4. these General Terms;
  5. our Acceptable Use Policy; and
  6. our Schedule of Fees and Charges.

1.2 Order of Precedence

Unless expressly stated otherwise, the order of precedence between the various parts of our Agreement will be resolved in favour of the document appearing earlier in the Your Agreement list shown above.

1.3 Customer Assistance

If you require any assistance or further information, please contact our Customer Service Team on 1300 759 637. If you have a hearing or speech impairment you may wish to contact the National Relay Service (NRS) on 133 677 from anywhere in Australia. For language assistance, contact the Translating & Interpreting Service (TIS) on 131 450 from anywhere in Australia.

2. DEFINITIONS AND INTERPRETATION

2.1 Definitions

The following definitions apply unless the context requires otherwise:

Acceptable Use Policy means our policy which applies to your use of the Services, a copy of which is accessible on our Website.

AEST means the Australian Eastern Standard Time (UTC+10).

Agreement or our Agreement see clause 1.3.

Application means an application made by you for the provision of Services by us, made by way of either:

  1. a form, either online or printed, approved by us; or
  2. a telephone application with us.

Approved Purposes means:

  1. providing directory assistance services;
  2. providing operator services or operator assistance services;
  3. publishing and maintaining public number directories;
  4. providing location dependent carriage services;
  5. the operation of emergency call services or assisting emergency services under Part 8 of the Telecommunications (Consumer Protection and Service Standards) Act 1999;
  6. assisting enforcement agencies or safeguarding national security under the Telecommunications Act 1997, the Telecommunications (Interception and Access) Act 1979 or any other applicable legal requirement;
  7. verifying the accuracy of information provided by the data provider and held in the Integrated Public Number Database (IPND) against the information the data provider holds;
  8. undertaking research of a kind specified in the Telecommunications IPND – Permitted Research Purposes) Instrument 2007;
  9. assisting the Australian Communications and Media Authority, or its nominee, to verify the accuracy and completeness of information held in the IPND; and
  10. meeting our obligations to any Government Department or Agency (for example the Australian Tax Office);
  11. any other purposes where permitted by the Telecommunications Act 1997, and any other applicable laws.

Business Day means any day other than a Saturday, Sunday or days which are public holidays.

Business Hours means 8.00am to 6.00pm Monday to Friday (AEST), excluding days which are public holidays.

Charges means the charges payable by you to us pursuant to this Agreement including but not limited to access, usage, default fees, interest, service call-out, repairs and equipment removal fees.

Claim includes any debt, cause of action, liability, claim, proceeding, suit or demand of any nature however arising under or in connection with this Agreement or its subject matter and whether present or future, fixed or unascertained, actual or contingent, arising under contract (including under any indemnity), tort (including negligence), under statute or otherwise.

Commercial Credit has the meaning given in section 6 of the Privacy Act 1988 (Cth).

Conditions of Service means the specific terms and conditions applying to a particular Service as set out in the Conditions of Service for the particular Service available from our Website at the time the service is connected.

Consequential Loss means loss of profits, loss of revenue, loss of opportunity, loss of anticipated savings, pure economic loss, loss of data, loss of value of equipment (other than cost of repair), loss of opportunity or expectation loss and any increased operating costs suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute, any other form of consequential, special, indirect, punitive or exemplary loss or damages and any third party loss.

Consumer Guarantee means a guarantee referred to in Clause 15.4, as more fully described in Schedule 2, Part 3-2, Division 1 of the Competition and Consumer Act 2010 (Cth).

Credit Reporting Agency has the meaning given in section 6 of the Privacy Act 1988 (Cth).

CSG has the meaning given in Clause 15.2.

Customer Equipment means any equipment or facility in the possession, ownership or control of you other than Service Equipment.

Disclosed Purpose means a particular purpose for which you have acquired the Equipment or Service which you have made known to us, (either expressly or by implication).

Due Date unless otherwise agreed, means the date specified on the invoice as the due date.

Equipment unless otherwise specified, means Service Equipment or Purchased Equipment.

Facilities has the meaning given in the Telecommunications Act 1997.

Fee(s) means a fee payable for a Service as set out in the Application, the relevant Conditions of Service or our Schedule of Fees and Charges and any other amount payable by you in accordance with the terms of our Agreement.

Fixed Term has the meaning given in Clause 3.5.

Force Majeure Event means an event that is beyond our reasonable control, including acts of God or natural disasters, fire, lightning, explosions, flood, subsidence, insurrection, civil disorder or military operations, war, terrorism, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, strikes, lockouts or other industrial disputes of any kind.

GST has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Interest means interest at the Reserve Bank Cash Rate plus 2% calculated daily and compounded monthly.

Internet Access means being able to access the Internet such that data can be transferred to and from the user’s computer.

Interruption in the supply of goods or a service means a delay in supplying, a failure to supply or an error or defect in the supply of, those goods or that service.

Law means Commonwealth, State, or local legislation, judicial, administrative, or regulatory decrees, judgments, awards or orders, binding industry codes and all common laws and equity.

Our Network means the infrastructure used and/or maintained by us to provide you with your Service. Our Network does not include the computer networks that make up the Internet.

Personal Information means any information or document referred to in section 276(1) of the Telecommunications Act 1997 and any Personal Information within the meaning given in section 6 of the Privacy Act.

Plan or Online Application Notes means any additional terms for a Service notified to you under the heading ‘Plan Notes’ or while completing an online application.

Privacy Act means the Privacy Act 1988 (Cth).

Purchased Equipment has the meaning given in Clause 11.

Schedule of Fees and Charges or Schedule of Fees means our prices for Services and administrative fees and charges payable in accordance with our Agreement, as displayed on our Website.

Service(s) means a product or service which we have agreed to supply to you as stated in your Application.

Service Equipment has the meaning given in Clause 10.

Shaped Services or Shaping means the controlled reduction in speed of an Internet service.

Taxable Supply has the meaning given in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Telecommunications Act means the Telecommunications Act 1997 (Cth).

Third Party Supplier means a third party supplier from whom we acquire wholesale services which form all or part of the Service we provide to you.

Website means www.skymesh.com.au

we, our or us means SkyMesh Pty Ltd.

you or your means the current account holder for the Services.

2.2 Interpretation

Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.

  1. The singular includes the plural and conversely.
  2. A gender includes all genders.
  3. If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
  4. A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.
  5. A reference to a clause or attachment is a reference to a clause or attachment to, these General Terms unless stated otherwise.
  6. A reference to an agreement or document (including a reference to these General Terms) is to the agreement or document as amended, varied, supplemented, notated or replaced, except to the extent prohibited by these General Terms.
  7. A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
  8. A reference to dollars and $ is to Australian currency.
  9. The meaning of general words is not limited by specific examples introduced by including, or for example, or similar expressions.

3. PROVISION OF SERVICES

3.1 Service Availability

  1. In accordance with the terms of this Agreement, we will use our best endeavours to provide you with a continuous Service and with the necessary information to access that Service.
  2. Notwithstanding paragraph (a) above, no service level guarantees or rebates of any kind are payable unless otherwise stated in the relevant Conditions of Service.
  3. Our liability to you for any Interruption to a Service is limited in accordance with Clause 15.

3.2 Training

We are not responsible for training you in the use of Services.

3.3 Licences

We will obtain and hold any necessary licences required under Law in relation to our provision of Services to you.

3.4 Commencement

Our Agreement commences when we accept (at our sole discretion) your Application and continues until terminated in accordance with our Agreement.
When you request us to supply a Service to you, which may be made using our Application Forms (either online or printed), or by telephone, we decide whether to accept your Application and to supply the Service to you based on:

  1. the Conditions of Service;
  2. your eligibility for that Service;
  3. its availability to you;
  4. you meeting our credit requirements; and
  5. your prior conduct or history with respect to any previous supply by us or a reseller of any goods or service to you.

3.5 Application

The terms of these General Terms do not apply to the extent that we have agreed on different conditions with you. In particular, the Application which you completed in order to receive the Service and the Conditions of Service relating to your required service may require different terms, for example you may be required to receive the Service from us for a minimum or fixed term which is greater than a month to month period (‘Fixed Term’). In such cases, your Application and the Conditions of Service will state the specific details of the term which applies.

3.6 Third Party Suppliers

You agree that we may use Third Party Suppliers for the provision of Services to you. You will not contact any of our Third Party Suppliers for any reason in relation to the Services. You acknowledge that if you do contact one of our Third Party Suppliers that you will be liable for all costs imposed on us by our Third Party Supplier in connection with you having contacted that Third Party Supplier directly.

3.7 Changing our Agreement

  1. During the term of our Agreement, we may need to change the terms or charges of our Agreement due to circumstances beyond our control, including changes in Law, urgent changes required for security reasons, changes by one of our Third Party Suppliers of the terms on which they supply services to us or to the functionality or nature of a Service or its underlying technology. We are therefore not always able to provide you with ongoing supply of a Service on the same terms and conditions that existed when we first commenced providing that Service to you.
  2. In addition to changes which we are required to make due to circumstances beyond our control, we may elect to make changes for our own purposes during the term of our Agreement. Any changes we elect to make will take effect for your Service in accordance with Clauses 3.8 and 3.9 below.
  3. You acknowledge and agree that in accordance with paragraphs (a) and (b), from time to time the nature of the Services and the terms on which we supply those Services to you may change and that if we elect to change those terms we will give you notice in accordance with Clauses 3.8 and 3.9 below.

3.8 Your Rights if we Change the Agreement

  1. Subject to the exceptions permitted by Clause 3.9, we will give you notice of any changes we propose to make to our Agreement, including the terms of these General Terms, at least 30 days prior to the date on which those changes are to take effect.
  2. Subject to the exceptions permitted by Clause 3.9, if the changes we propose to make will cause more than a minor detriment to you then you may immediately cancel the affected Service without incurring any early termination fee or penalty (provided that we can recover any outstanding Fees incurred up to the date on which our Agreement ends and any outstanding amounts that cover installation costs or equipment where such equipment can be used in connection with services provided by other suppliers), by giving us notice in writing to that effect within 42 days of the date of the notice referred to in paragraph (a) above.
  3. If the date you give notice to us to cancel the Service in accordance with paragraph (b) occurs after the date of the change to our Agreement, the change will not apply to you. We will issue a corrected invoice or adjustment note as appropriate and, if you have overpaid as a result of the change to our Agreement, credit your account with the overpayment or, if you have cancelled your Service with us, refund the overpayment promptly after deduction of any other amounts due by you to us. Upon cancellation of the service due to a change to our Agreement that has more than a minor detrimental impact on you, the charge for costs of equipment we have provided to you that you have not paid for shall be owed by you as a lump sum and payable by the due date.
  4. You acknowledge and agree that if you do not give notice to us within the 42 day period referred to in paragraph (b), you are deemed to have accepted our changes from the date those changes are to take effect and that our Agreement, as amended by those changes, will govern the relationship between you and us from that date.

3.9 Exceptions

You acknowledge and agree that our obligation to give you 30 days notice of our proposed changes and to afford you a right to terminate our Agreement in accordance with Clause 3.8 will not apply in relation to:

  1. urgent changes we are required to make by Law, for security reasons or technical reasons necessary to protect the integrity of our network;
  2. the introduction of a new Fee or an increase in an existing Fee due to an additional tax or levy imposed by Law;
  3. the introduction of a new Fee or an increase in existing administrative Fees for ancillary services such as credit card transaction fees (provided we have offered you a reasonable alternative at the same or lesser cost to the original Fee); and
  4. increases in Fees due to increases imposed on us by other suppliers (including Third Party Suppliers) for the following types of Services and charges:
    1. international carriage services (including for voice and data) the current Fees for which are available via our website; and
    2. content and premium services (including 1900 prefix services) which we resell to you from a third party, including where we collect fees from you on behalf of that third party.

Where practicable to do so, we will give you reasonable notice of the changes referred to in this Clause 3.9 in accordance with the notice provisions of Clause 18.1.

3.10 Change of Account Holder

If you require your account to be changed into the name of another person, you can do so by having you and the new account holder complete the Account Holder Change Form (which will attract an administrative fee as set out in our Schedule of Fees and Charges). You will remain liable for your obligations under our Agreement up to the date that we acknowledge acceptance of the change of account holder. The new account holder will be required to agree to be bound by the Agreement prior to the transfer being accepted by SkyMesh.

4. FEES FOR THE SERVICES

4.1 Fees

  1. You must pay the Fees for the Services during the term of our Agreement. You are liable to pay for all Fees arising out of the use of the Services we provide to you, whether by yourself or any other person, whether with or without your consent.
  2. If a Service is used to access the facilities or services of another supplier, amounts charged by that other supplier are, unless our Agreement specifies otherwise, your responsibility, and you will indemnify us in relation to any such charges. If we are charged those amounts we may include them in the Fees.
  3. If during any period of our Agreement you do not receive, or are unable to use, the Services you will, unless our Agreement specifically provides otherwise, be liable to pay for all Fees during such period. However, in certain circumstances you will be entitled to claim a pro-rata refund of Fees for the duration of an Interruption, in accordance with Clause 15.1.

4.2 Discounts, Credits and Rebates

Upon making your Application you will be informed of any discount or special rate for which you may be eligible. If you are eligible for a rebate, such as a promotional rebate, we will inform you in writing of such an entitlement.

4.3 GST

Unless expressly stated otherwise, all amounts payable by you under or in connection with our Agreement are inclusive of GST. If GST is payable on a Taxable Supply made to you, the amount payable by you for that Taxable Supply will be the amount expressed in our Agreement or the relevant document connected with our Agreement.

4.4 Invoicing

  1. We will provide an invoice for the Service on the date your connection becomes active and each month thereafter on the anniversary date.
  2. If you have a direct debit in place for any Service your credit card or bank account will be debited on the Debit Date.
  3. Monthly fees (if applicable) are billed in advance and any applicable usage, or excess usage, charges are billed in arrears.
  4. Any applicable connection fees and additional hardware will be billed on your first invoice.

We may invoice you for the Service, plus any applicable GST. We may vary invoice frequency upon giving you reasonable notice. All portions of your use of the Services are charged for and unused allocations are not transferable or refundable. We reserve the right to reissue an invoice if any error in the amount shown owing on the invoice is subsequently discovered.
We may issue an interim bill in the following circumstances:

  1. You change your existing plan;
  2. You request a new service to be connected;
  3. You relocate an existing service;
  4. You request to be invoiced for any ‘unbilled’ charges;
  5. We have reasonable grounds to believe you may be a credit risk; or
  6. As otherwise agreed with you.

We will refund or credit any overpayment due to a variation in the Fees or cancellation of a Service. If we have undercharged you, you will be liable for any underpayment.

4.5 Calculation of Fees

Fees will be calculated by reference to data recorded or logged by us. Records held by SkyMesh will be conclusive evidence of the Usage of your Service and charges payable by you.
Data is calculated monthly in accordance with your Conditions of Service.

4.6 Time for Payment

All Fees must be paid in full by the Due Date.

4.7 Methods of Payment

Residential services must be paid by credit card standing authorisation or direct debit. Internet services (only) may be paid by cheque or money order no less than six months in advance with a minimum payment amount of $150.
Business customers may pay outstanding invoices for business services either by credit card standing authorisation, direct debit, or electronic funds transfer.
We reserve the right to charge you for any fees that we incur from or must pay to your bank. If there is any payment discrepancy or disagreement about bank charges applied, you should contact us before you contact your bank and we will try to resolve the issue. If you contact your bank and we incur a bank fee as a result, we reserve the right to pass this fee on to you.

4.8 Late payment fees

We reserve the right to charge a late payment fee as set out in Our Schedule of Fees and Charges in respect of any invoice which is not paid to us by the Due Date.

4.9 Suspension for Non-Payment

We reserve the right to;

  1. physically disconnect your service if Fees or any other amount payable by you remains unpaid 28 days after the Due Date (unless we have received written notice from you of a legitimate dispute of those Fees or other amount prior to the Due Date and that dispute remains unresolved); and
  2. suspend your service if you fail to pay the outstanding amount in full within 3 days after we give you a notice demanding payment of the Fees which for the avoidance of doubt will include any administrative fees.

4.10 Dishonoured Direct Debit Transaction or Credit Card Authorisation

In addition to any other rights that we have under the Agreement in relation to late payment, if an invoice is paid by direct debit or credit card authorisation and sufficient funds are not available, a dishonour fee will be added to your next invoice as set out in the Schedule of Fees and Charges.

4.11 Debt Recovery Services

We may use debt recovery services to recover any outstanding Fees (which will include any administrative fees and you may be liable for any charges and collection costs such as legal costs).

4.12 Early Termination Fee

You may cancel your Service at any time in accordance with Clause 14.1(a). However, if your Application records that you have agreed to receive a Service from us for a Fixed Term then, if you cancel the Service before the expiry of the Fixed Term, you will be liable to pay an early termination fee. The early termination fee is: set out in the Schedule of Fees and Charges; or, if not defined therein, the sum of monthly instalments that would have been charged by us during the Fixed Term plus any unpaid costs that were incurred in the preparation and supply of the Service.

4.13 Refunds and Credits

  1. The set-up fee is processed upon commencement date and is non-refundable unless we are unable to provision the service for you.
  2. In the event that your account for a Service is terminated and monies are owed to you by us (for example, for the unexpired portion of any Fee paid in advance by you), you agree that we may deduct any outstanding Fees on final settlement of your account and state on your final invoice (as applicable) the amount credited to you or the amount you must pay to us.
  3. You may elect to claim a refund for any amount credited on your final invoice or apply the credited amount to another Service we may supply to you by notifying us within 90 days of your receipt of the final invoice.

4.14 Prepayment

  1. If, at the time of application, we have reasonable grounds to believe you may be a credit risk, we may request that you pay in advance the estimated cost of using your Service for an invoice period.
  2. We may decline your Application, cancel, suspend or disconnect a Service if you do not provide the prepayment in advance when requested to do so in accordance with paragraph (a) above.
  3. If we cancel or disconnect all of the Services, we will return to you that portion of the prepayment that is not required to meet any outstanding Fees.

4.15 Disputed Invoices

  1. If you dispute an invoice or claim a refund for overpayment of any Fees under our Agreement you should do so within 5 months of the date of the invoice to which the disputed amount or alleged overpayment relates.
  2. Nothing in this Clause 4.15 limits your right to issue proceedings in relation to a disputed invoice or alleged overpayment.

4.16 Cancellation, Suspension or Disconnection

If we cancel, suspend or disconnect any Service for non-payment, you remain liable for all Fees and other liabilities incurred before the date of cancellation, suspension or disconnection of the relevant Service.

4.17 Disconnection or Reconnection

We may charge you a fee for the disconnection or reconnection of any Service as set out in the Schedule of Fees and Charges, except where the disconnection was caused by our error or our failure to perform our obligations under this Agreement.

4.18 Set Off

Unless we agree in writing, you must pay the Fees without any set off, counterclaim or deduction.

5. TRANSFER OF YOUR SERVICES FROM US TO ANOTHER SUPPLIER

5.1 Transfer

If you ask us to transfer any of the Services to another supplier, then you remain liable to us for any amount payable in relation to the supply of the Services up to the date on which we transfer those services to another supplier. You will pay us that amount by the Due Date.

5.2 Termination of Services on Transfer

The provision of Services ceases on the date on which we transfer your services to another supplier.

5.3 Invoicing

We will endeavour to invoice you for Fees incurred in relation to Services which you transfer to another supplier within the next normal billing period. If, after that time, we become aware of other Fees or amounts (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 relating to those Services is quantified and payable by you, then you will pay us all such amounts within 7 days of your receipt of our invoice for them.

5.4 Indemnity

We will not accept liability for any amounts owing by you to a supplier or other person. You must indemnify us against any Claim made by a supplier or other person against us in relation to any such amounts.

6. PERSONAL INFORMATION

6.1 Consent to Collection and Use

You consent to us obtaining, using and disclosing your Personal Information for any of the purposes specified in this Clause 6. If you choose not to provide all or part of the Personal Information we request, we may not be able to provide you with the Services, or we may refuse to provide or limit the provision to you of any Service or credit.

6.2 Use of Personal Information

    1. You authorise us to collect, use and disclose Personal Information (including details of your account and information relating to the use of your Service) which you provide to us in connection with the supply to you of the Services (including for direct marketing purposes in accordance with Clause 6.2(e) below), to our Third Party Suppliers, our agents, debt collectors, credit reporting agencies and our contractors and use that information for the purpose of managing your account or as otherwise necessary to fulfil our obligations under our Agreement.
    2. In particular, you acknowledge and agree that we will use your Personal Information:
      1. to identify you and to assess your Application;
      2. to supply the Services and Equipment to you (including for investigation or resolution of disputes relating to any Services and Equipment provided to you);
      3. to issue you with invoices and to collect Fees and any other debts you owe to us in connection with our Agreement;
      4. for the purposes of preventing fraud or any other illegal activity; and
      5. for all other purposes reasonably required to provide the Services to you.
    3. You agree that we may disclose your Personal Information:
      1. to other suppliers for the purpose of enabling us to provide the Services and Equipment to you (including for the purpose of provisioning Services or Equipment and providing particulars of calls and call charges to those suppliers for interconnection and invoicing purposes);
      2. to any other person who provides services to us in connection with the Services and Equipment we supply to you (including to our resellers, outsourced installation and repair service companies, outsourced billing companies and debt-recovery agencies);
      3. to credit reporting agencies for the purposes referred to in Clauses 6.3 and 6.4;
      4. if you elect to participate in a loyalty program with us, to other persons with whom we have established or will establish the loyalty program to enable you to participate in it;
      5. to anyone to whom we are permitted to assign or transfer this Agreement in accordance with Clause 17;
      6. to government agencies, Law enforcement authorities and other persons as required by Law, including disclosures to the manager of the Integrated Public Number Database (as noted in Clause 6.2(d)); and
      7. to any other person, where you have consented for us to do so.
    4. We are required by Law to provide your name, address, telephone service number and other public number customer details to the manager of the Integrated Public Number Database (‘IPND’) for the Approved Purposes. Unless you specify otherwise in your Application:
      1. your telephone service number for a fixed or landline Service will be recorded as a “listed number”; and
      2. your telephone service number for a mobile service will be recorded as an “unlisted number”.

      Unlisted service information is marked and controlled by the manager of the IPND to ensure that it is only used for the relevant Approved Purposes (unlisted numbers or suppressed address listings recorded in the IPND are not available to the general public via public number directories or directory assistance services). You must notify us of any change to your IPND data and you may request changes to the listing status of your Service by contacting us on 1300 759 637.

    5. Unless you ask us not to use your Personal Information for direct marketing purposes, we will use, and disclose your Personal Information to our related bodies corporate, agents, affiliates, franchisees, resellers, equipment suppliers and any other suppliers of products or services with whom we have engaged in a joint initiative, for the purposes of informing you of other products and services offered by us and by any of these other entities. If we are permitted to use your Personal Information for direct marketing purposes, you consent to us sending direct marketing information to you:
      1. by post to your address (as listed in our records);
      2. by email to your email address (as listed in our records);
      3. on or with the invoices we issue to you for Services; and
      4. by calling you (including by leaving a recorded message) on the telephone number applicable to your Service or other contact number which you have specified on your Application.

      If you do not wish to receive direct marketing in accordance with this Clause 6.2(e), please call 1300 759 637.

6.3 Consent to Credit Check

  1. Your Personal Information in our possession, whether collected by us from you or obtained from a third party, may be disclosed by us to a credit reporting agency for the purposes of providing the Services to you.
  2. For the purposes of Clause 6.3(a), Personal Information which may be disclosed by us to a credit reporting agency consists of:
    1. identity particulars such as your name, sex, address (and previous two addresses), date of birth, name of employer and drivers licence number;
    2. your application for commercial credit (including the amount requested);
    3. the fact that we are a current credit provider to you;
    4. information that, in our opinion, you have committed a serious credit infringement, including:
      1. by conduct which is fraudulent or shows an intention not to comply with your credit obligations;
      2. the fact that an undisputed account of $100 or more is overdue by more than 60 days, where we have started debt collection action against you;
      3. the fact that cheques drawn by you for $100 or more have been dishonoured more than once; and
    5. advice that accounts are no longer overdue in respect of any default that has been listed.
  3. The information specified in paragraph (b) may be given before, during or after the provision of credit to you.

6.4 Use of Credit Report

  1. You agree that a credit report which contains Personal Information concerning you may be given to us by any credit reporting agency for the purpose of either assisting us to assess your creditworthiness or in collecting payments that are overdue.
  2. You agree that we may disclose a credit report or other report relating to you and any Personal Information derived from that report, to any other credit provider for any of the following purposes, namely:
    1. the assessment by us or the other credit provider of your creditworthiness;
    2. the collection by us or the other credit provider of payments that are overdue; or
    3. the exchange of information between us and the other credit provider for the purposes referred to in subparagraphs (i) and (ii).
  3. The information which may be exchanged pursuant to paragraph (b) 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 1988 (Cth).
  4. You agree that a trade insurer may obtain a credit report about you for the purpose of assessing whether to provide trade insurance to us in relation to your application for commercial credit.

6.5 Access to Information

Where we hold any Personal Information about you, you may request access to that information. We will provide you with access to most Personal Information that we have about you (once we have verified your request is in good faith) but in some cases that will not be possible, in which case we will tell you why.

6.6 Compliance

To the extent that you provide us with Personal Information which you have collected or accessed for the purposes of receiving the Services you must:

  1. comply with the Privacy Act 1988 (Cth);
  2. comply with any reasonable direction which we may give regarding how to comply with any such legislation;
  3. obtain the informed consent of any individual whose Personal Information you intend to provide to us so as to allow us to collect, use, disclose and store that information for the purposes of providing you with the Services or as otherwise contemplated by our Agreement;
  4. notify us of any changes to that Personal Information of which you become aware;
  5. notify us of any complaint made by an individual in respect of their Personal Information; and
  6. cooperate with us in the resolution of any complaint alleging a breach of the Privacy Act, a privacy policy or an approved privacy code.

6.7 Records

You must keep sufficient records in respect of Personal Information that you collect, store, use and disclose pursuant to our Agreement to enable us to determine whether you are complying with your privacy obligations under our Agreement, and must provide us with access to such records at our request.

6.8 Indemnity

You warrant that any such Personal Information that you provide to us is complete and accurate and agree to indemnify us against any Claim that may be incurred by us relating to any Personal Information which you provide to us not being treated in accordance with your obligations under Clauses 6.6 and 6.7.

7. CONFIDENTIALITY

7.1 Confidential Information

We retain all rights (including intellectual property) in any information we provide to you relating to the Equipment, the Services or to the provision of the Services which, by its nature, or the circumstances of its disclosure to a recipient, is or could reasonably be expected to be regarded as confidential (“Confidential Information”).

7.2 Protecting Confidentiality

You will not disclose Confidential Information to any third party and will not allow any written or electronically recorded Confidential Information to be copied or disclosed to a third party without our consent (unless you are required to do so by Law or the information has entered the public domain other than through a breach of confidence). You may also disclose Confidential Information to your professional advisers on condition that they also agree to keep the information confidential.

7.3 Obligations on Termination

On the termination of the Services for any reason, you will return the Confidential Information and all copies of it to us or as we otherwise reasonably direct. If you have destroyed these, or any of them, then you will give us a written declaration to that effect upon our demand following termination of the Services.

7.4 Restrictions on Use

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.

8. YOUR OBLIGATIONS

8.1 Compliance

You are responsible for the use of your Service and you will not use your Service other than in accordance with our Agreement and Laws and obligations applicable to the Services and their use.

8.2 Obligations

  1. Subject to your rights under Clause 3.8, you accept and will comply with such conditions as are from time to time imposed by us in respect of a Service, whether as part of the Conditions of Service, Acceptable Use Policy or otherwise, including without limitation, limits on usage and type of usage, size of emails and attachments and web space, time and volume limits applicable to data transfer and storage and session and idle times, deletion and loss of data.
  2. In providing the Services to you, you agree that we may:
    1. delete any transitory data stored on our servers for a duration exceeding 90 days;
    2. reject any email (including attachments), which exceeds 10MB (including encapsulation) and is sent to or by you via any of our mail servers;
    3. where it is deemed necessary in order to comply with the Law, monitor data accessed or transmitted by you while using the Service; and
    4. take any steps deemed necessary to comply with our legal obligations under relevant State or Federal legislation, industry codes of practice or under direction from a relevant regulatory authority or court order.
  3. You must not do or allow to be done, in relation to a Service, any of the following:
    1. engage in denial-of-service attacks, or allow a computer under your authority to be used as part of one;
    2. obtain or attempt to obtain unauthorised access to or control of any other computer or network;
    3. scan ports on other computers or otherwise probe them for means of access or vulnerabilities;
    4. spread (either deliberately or through want of reasonable care) any virus, Trojan horse or other harmful action;
    5. breach any Law regulating content on the Internet or of email;
    6. contravene the Privacy Act, the National Privacy Principles, or any guidelines made under them;
    7. send spam.
  4. If we or a Third Party Supplier provide you with any software, you will only use it in accordance with its licence terms as notified to you from time to time.
  5. Except to the extent that we have specifically agreed otherwise, the Service that is supplied to you is for domestic and personal use only and you agree not to resell the Service, nor to establish, maintain or permit multiple concurrent connections to the Service, nor to connect the Service to a local area network, except if the Service is designated by us as one which supports use of a local area network.
  6. Except to the extent that we have specifically agreed otherwise, you are solely responsible at your own expense for:
    1. providing and maintaining the necessary telephone service or other connection between you and the point of presence or other specified point of connection to the Internet;
    2. providing and maintaining the modem and all other Customer Equipment and Equipment necessary for that purpose; and
    3. ensuring that you have access to the Services by means of a local or untimed call. You acknowledge that we are not in any way responsible or liable for call costs that you incur to your telephone service provider and that it is your sole responsibility to ensure you are dialling a local number when accessing the Services.
  7. To the extent permitted by Law, you acknowledge and agree that:
    1. continuity and speed of access to the Internet depend on a wide range of factors, many of which are beyond our control;
    2. we have no control over the accuracy or appropriateness of any information on the Internet;
    3. we are not responsible for any software or data available on the Internet;
    4. if we provide to you technical or other support or advice in relation to any matter which is outside our direct responsibility under this Agreement, we do so only in an attempt to assist you and without incurring any liability other than any which cannot Lawfully be excluded;
    5. you may lose access to your current email addresses; and
    6. you should regularly check your email inbox for communications from us.
  8. You are responsible for all call charges incurred by you dialling into our Service.

8.3 Internet Security

You acknowledge and accept that any access to the Internet involves security risks and that new threats to Internet security are continually evolving. You accept responsibility for maintaining your own security and acknowledge that we have recommended that you should at least:

  1. maintain and protect your user identity, email address and password (keeping the password secure, including not disclosing it, avoiding the use of dictionary words, names or dates, changing it regularly, not keeping it in writing or storing it on a computer);
  2. not disclose Personal Information (including credit card details) on the Internet;
  3. use and keep current anti virus software and firewall;
  4. restrict access to Equipment;
  5. not accept emails or files from unknown sources;
  6. protect users from unsuitable Internet content;
  7. keep up to date on Internet security issues;
  8. be aware that premium rate “190” and international “0011” telephone call fees can be incurred inadvertently by users accessing certain Internet sites and while using dialup services; and
  9. avoid unexpected data Fees by regularly monitoring your data usage.

8.4 Information

You warrant that the information supplied by you in relation to our Agreement is true and correct. You will promptly inform us of any changes to this information.

8.5 Assistance

For the duration of our Agreement, you will provide us free of charge with all assistance, information, access, facilities and services reasonably required by us to enable us to perform our obligations under our Agreement, including use of Customer Equipment (including PABX and key system equipment) and any other telecommunications facilities which you own or control, if required.

8.6 Insurance

You are responsible for insuring and maintaining Equipment or facilities which we provide to you.

8.7 Changes to Personal Information

You will promptly inform us of any changes to your billing or address details.

8.8 Indemnity

You will indemnify us against any Claim we suffer as a result of your use of the Service to commit an offence or otherwise in breach of Clause 9.5.

9. USE OF SERVICES

9.1 Installation and Programming of Customer Equipment

You will assist us in ensuring that any Equipment or Customer Equipment necessary for you to receive the Services is installed and programmed so that calls to destinations nominated by us from time to time are, so far as possible, carried by facilities preferred by us.

9.2 Interference

If inadequate capacity in the Customer Equipment or Equipment or your use of the Service interferes, or in our opinion threatens to interfere, with the efficiency of any network used in the supply of the Services, you must follow our directions or the directions of the relevant network operator on how to end or avoid that interference.

9.3 Use of Services

You must:

  1. ensure the Services are used solely for their intended purpose;
  2. notify us immediately of any security breach (suspected or otherwise) regarding the Service or of your confidential password or customer login; and
  3. not permit any other person to resell or purport to resell this Service.

9.4 Technical Regulation

You must not connect or maintain a connection to a facility used in connection with the supply of Services to you or other parties which does not comply with technical codes, standards or regulations made under the Telecommunications Act, with any declaration or other requirement of the Australian Communications and Media Authority or with any code, standard or guideline published by the Australian Communications Alliance Ltd.

9.5 Illegal Use

You must not use or allow another person to use a 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.. If you breach this clause, we may suspend or cancel the Service in accordance with Clause 14.4(f).

9.6 Infringement of Copyright

We have adopted a repeat infringer policy in accordance with section 116AH of the Copyright Act 1968. Without limitation to any other rights that we have under the Agreement, we may issue warning notices, suspend or terminate your service in accordance with such policy.

10. EQUIPMENT WE SUPPLY TO YOU

10.1 Title

If we provide a facility or any item of equipment (‘Service Equipment’) to you either for use in the provision of the Services to you or otherwise, (but we do not sell that Service Equipment to you), then:

  1. that Service Equipment always remains our property unless in our sole discretion we deem that title has passed to you;
  2. you will allow us to and, where applicable, will ensure that the landlord allows us to, remove the Service Equipment from the premises where it is installed upon expiry or termination of the supply of the Services;
  3. you will not part with possession of the Service Equipment except to us;
  4. if we are unable to recover the Service Equipment, we may recover the value of it as a debt due by you, including offsetting the value of the Service Equipment against any monies owed to you by us;
  5. you indemnify us against any loss or damage to the Service Equipment, unless that loss or damage arises from fair wear and tear; and
  6. you must not remove or obscure any identification marks on the Service Equipment, and must comply with our reasonable instructions to protect our ownership and not do anything which might detrimentally affect our ownership of the Service Equipment.

10.2 Changes to Service Equipment

We may at any time replace any of our Service Equipment as we think fit. If we have agreed to provide a Service to you for a Fixed Term, replacement of Service Equipment will be subject to our obligations under Clauses 3.7 and 3.8.

10.3 Access

  1. You will allow us access to the Service Equipment during Business Hours (or at such other times as we arrange with you), and this right of access will not end until all Service Equipment is returned to us, even if the Services have been cancelled.
  2. We (or a Third Party Supplier) may need access to your premises from time to time in connection with the provision and maintenance of the Service Equipment or a Service. If you do not provide such access as we, or a relevant Third Party Supplier, reasonably require, we may limit, suspend, cancel or disconnect your Services.
  3. If you want us to provide a Service and that Service requires the installation of any facility, equipment or cabling on your premises whether by us or a Third Party Supplier, you must allow us or any relevant Third Party Supplier to:
    1. have access to your premises to install the facility, equipment or cabling; and
    2. install the facility, equipment or cabling on your premises.
  4. If you do not own the premises referred to in paragraph (c) you must have the owner’s permission and you warrant to us that you do have that permission.
  5. If we need access to your premises you must provide us with safe access and indemnify us against any Claim by the owner or occupier of the premises in relation to our entry onto the premises.

10.4 Maintenance of Service Equipment

We may suspend Services for a reasonable period of time to perform maintenance on the Service Equipment, provided that in each case, we will use our reasonable endeavours to:

  1. give you reasonable notice (bearing in mind the urgency and nature of the work) of any interruption to the Services; and
  2. minimise any interruption to the Services.

10.5 Maintenance of Customer Equipment

If we use any of your facilities or Customer Equipment to provide the Services to you, you are responsible for the maintenance of your facilities and Customer Equipment unless we otherwise agree in writing.

10.6 Interference

You will ensure that the Service Equipment, and any other Customer Equipment, facilities or connections used in providing Services, are not altered, maintained, repaired or connected to, or disconnected from, any power source or line except by service personnel approved by us.

10.7 Electricity

You will make available and be responsible for payment of, an adequate power supply for the operation of any Equipment or Customer Equipment used in the provision of Services. If provision of the Service is dependent on the supply of electricity we do not guarantee the supply of the Service where the supply of electricity is either disrupted or discontinued.

10.8 Insurance

If we request you to, you must insure any Service Equipment for an amount and on terms reasonably required by us.

10.9 Return

On the termination of supply of the Services for any reason you will immediately return all Service Equipment to us, or make it available for collection by us. If you do not return the Service Equipment, you must pay to us on demand the full retail price of the Service Equipment (including the cost of acquiring or renewing any necessary software licences).

11. EQUIPMENT YOU ACQUIRE FROM US

11.1 Title

If we sell to you a facility or any item of equipment (‘Purchased Equipment’) either for use in the provision of the Services to you or otherwise, then:

  1. that Purchased Equipment remains our property until we receive full payment from you or we otherwise deem in our sole discretion that title has passed to you (prior to the receipt of full payment);
  2. until we receive full payment from you, you will not part with possession of the Purchased Equipment except to us;
  3. if you do part with the Purchased Equipment before making full payment to us, we may recover the value of it as a debt due, including offsetting the value of the Purchased Equipment against any monies owed to you by us;
  4. until full payment of the Purchased Equipment is received, you indemnify us against any loss or damage to it, unless that loss or damage arises from fair wear and tear; and
  5. until we receive full payment for the Purchased Equipment, you must not remove or obscure any identification marks on it, and must comply with our reasonable instructions to protect our ownership and not do anything which might detrimentally affect our ownership of the Purchased Equipment.

11.2 Risk

Risk of loss or damage to the Purchased Equipment will pass to you upon delivery.

11.3 Installation

Subject to agreement between us as to which Services and/or Purchased Equipment we install, we will install such Services and/or Purchased Equipment at a site nominated by you. We may charge you our current Fees (including travel and accommodation expenses) for installing the Purchased Equipment and/or a Service. We will use reasonable endeavours to install the Purchased Equipment and/or a Service on or around the installation date requested by you but will not be liable for any loss or damage for failure to do so.

11.4 Purchase Price

You agree to acquire, and we agree to supply, the Purchased Equipment in consideration for the price set out in the Application or as otherwise notified by us to you.

11.5 Installation Site

You will prepare the installation site in accordance with the site preparation requirements reasonably required by us. We may refuse to install Purchased Equipment and/or a Service if the installation site has not been prepared in accordance with our reasonable requirements. We may agree from time to time to change the installation site, in which case we will be entitled to impose an additional Fee for our costs.

11.6 Returns and Refunds

Subject to the Consumer Guarantees set out in Clause 15.4:

  1. we do not refund unwanted Purchased Equipment. If you require a different model, we allow 7 business days, from the date you receive the Purchased Equipment, to return to us at your own cost, any unopened Purchased Equipment from us. Your account will be credited with the purchase price less a 15% restock fee.
  2. No credit will be applicable on any Purchased Equipment returned opened or after the 7 business day period referred to in Clause (a).

12. TECHNICAL SUPPORT SERVICES

12.1 Technical Support Services

We will provide free technical support relating to the diagnosis and resolution of Service related faults. This support is only provided by telephone, email and via our website. You are able to lodge a Support request by phoning 1300 759 637. Support requests may also be lodged via email to support@skymesh.com.au, via fax to 1300 859 637 or via SMS to 0458 759 637. The support does not extend to issues originating from your side of the Network Boundary which include but are not limited to issues with the cabling in your premises, your computer, software and network hardware (excluding hardware supplied by SkyMesh). SkyMesh free support is defined as telephone support between the hours of 8:00 am to 8:00 pm AEST Monday to Friday and from 8:00 am to 5:00 pm AEST weekends and selected Australian public holidays. Should you require additional support, it may be provided by SkyMesh at our sole discretion and at an hourly rate as defined in our Schedule of Fees and Charges.

12.2 Responsible for Faults

We are not responsible for, and will not provide support for, any fault caused by:

  1. your Customer Equipment;
  2. the interaction of Software with other software packages used by you;
  3. the inability to gain wireless connectivity from your wireless access point/router to your computer; or
  4. other services as provided by a supplier or another carrier or third party other than us.

13. POLICIES

13.1 Complaints Handling Policy

We have a TCP Code compliant Complaints Handling Policy to resolve our customers’ issues, quickly and efficiently. If you are not satisfied with our handling of your complaint under that process, you may then lodge a complaint with the Telecommunications Industry Ombudsman (TIO). Details on how to lodge a complaint are on our website at https://www.skymesh.net.au/complaints/. It’s a
TIO requirement that you first give us a reasonable opportunity to settle your complaint before the TIO will become involved.

13.2 Financial Hardship Policy

We have a TCP Code compliant Financial Hardship Policy for customers who are temporarily experiencing genuine financial hardship due to unforeseen circumstances and are unable to pay their SkyMesh bill. Details are on our website at https://www.skymesh.net.au/hardship/.

14. SUSPENSION AND CANCELLATION OF SERVICES

14.1 Your rights to cancel or terminate:

  1. You may cancel a Service by giving us 30 days notice via the member service area of our Website provided that you may be liable to pay an early termination fee in accordance with Clause 4.12 if you do so during a Fixed Term.
  2. You may otherwise cancel a Service at any time by giving us notice via the member service area of our Website if:
    1. you are entitled to do so in accordance with Clause 3.8;
    2. you are entitled to do so in accordance with Clause 16;
    3. we are in material breach of our Agreement, which is capable of being remedied, but which we have failed to remedy within 14 days after you telling us of that breach; or
    4. we are in material breach of our Agreement and it is something which cannot be remedied, including where there has been a prolonged Interruption to the Service lasting for more than 5 days, or more than 14 reported Interruptions in a 12 month period. This clause does not apply to Interruptions which occur because of:
      1. a cancellation, suspension or restriction to the supply of the Service in any of the circumstances listed in Clause 14.4;
      2. a system or network outage for an insignificant period;
      3. scheduled maintenance of Our Network or of Service Equipment in accordance with Clause 10.4;
      4. a fault or other event which may reasonably be attributed directly or indirectly to your Equipment; or
      5. your acts or omissions.
  3. If you cancel a Service for any of the reasons set out in paragraph (b), you will not be liable to pay an early termination fee (provided that we can recover any outstanding Fees incurred up to the date on which our Agreement ends and any outstanding amounts that cover installation costs or Equipment where such Equipment can be used in connection with services provided by other suppliers), and you will be entitled to a refund of the unexpired portion of any amounts you have paid in advance for the Service in accordance with Clause 4.13.

14.2 Preparation Costs

If you request a Service from us and cancel that request before we provide the Service, you may be liable to pay us the service cancellation fee as set out in the Schedule of Fees and Charges for our costs incurred in preparing to provide the Service.

14.3 Our Suspension and Cancellation Rights

We may suspend, limit or cancel a Service if:

  1. you notify us in accordance with Clause 14.1;
  2. the Australian Competition and Consumer Commission (ACCC) issues us with a competition notice in respect of the Service or we reasonably anticipate that it may do so;
  3. we are required to do so by Law;
  4. there is an emergency;
  5. the Network is being modernised or upgraded;
  6. Telstra or another third party (including any Third Party Supplier) withdraw or suspend a service which means we cannot provide your Service;
  7. during any technical failure, modification or maintenance involved in the Service provided that we will use reasonable endeavours to procure the resumption of the Services as soon as practicable;
  8. there are reasonable grounds for believing a threat or risk exists to the security or integrity of our network or that provision of the Service may cause death, personal injury or damage to property;
  9. we reasonably determine that such action is necessary to repair, maintain or restore any part of our network;
  10. the provision of the Services by us does or may contravene any Law or we have reasonable grounds to believe that it may in the immediate future contravene any Law;
  11. in accordance with Clause 16 (force majeure); or
  12. your Service has not been used or accessed for a continuous period of 24 months.

Subject to our rights in Clause 14.1(a), if we cancel or suspend the Service for any of these reasons, we will not charge you any disconnection or reconnection fee. If your account is terminated as a result of any of these events, you will be entitled to a refund of the unexpired portion of any amounts you have paid in advance in accordance with Clause 4.13.

14.4 Other Suspension or Cancellation Events

We may suspend, limit or cancel a Service if:

  1. you vacate the premises to which we have been supplying a Service to you;
  2. we are unable to enter the premises to inspect, repair or maintain any Equipment or cabling connected with a Service provided to you;
  3. we have the right to do so in accordance with Clause 4.9 for your failure to pay Fees or other amounts;
  4. you do not provide prepayment as required by us in accordance with Clause 4.14;
  5. we have reasonable grounds to suspect fraud or other illegal conduct by you in applying for the Service;
  6. we have reasonable grounds to suspect fraud or other illegal conduct by you or any person using your Service;
  7. you fail to comply with our Acceptable Use Policy (if applicable to your Service);
  8. you fail to rectify any defect or inadequacy in any Customer Equipment or cabling not owned or maintained by us within 30 days of being requested to do so by us;
  9. your use of the Services interferes with the efficiency of our network or a Third Party Supplier’s network and you fail to rectify the situation within 24 hours of being requested to do so by us;
  10. if you do, or allow to be done, anything which in our reasonable opinion may have the effect of jeopardising the operation of any Service;
  11. you become a carrier or carriage service provider within the meaning of the Telecommunications Act 1997;
  12. you become bankrupt, insolvent or have a receiver, manager, administrator or liquidator appointed over you or any of your assets;
  13. we have reasonable grounds for believing you are a credit risk, including the following grounds:
    1. your usage of the Service is unusually high when compared to previous account activity and you fail to respond to notices from us about that usage (but you acknowledge that we are not obliged to monitor usage of a Service, or to suspend, limit or cancel a Service if there is unusual usage, and you remain liable to us for usage of that Service);
    2. you fail to pay an invoice by the Due Date and have a payment history indicating late payments, dishonoured payments or failures to pay; or
    3. we become aware of public notices of your pending bankruptcy, winding up or other insolvency events,

    and we have taken reasonable steps to notify you of the suspension, limitation or cancellation of the Service; or

  14. you are in material breach of any of the terms or conditions of our Agreement, including the terms of these General Terms.

If we cancel or suspend the Service for any of the reasons listed in this Clause 14.4, you will be liable to pay a disconnection fee and (if we agree to reconnect the Service) a reconnection fee, as set out in the Schedule of Fees and Charges, in addition to your liability to pay all other Fees incurred up to the time of cancellation of the Service in addition to any other rights we may have under the Agreement or at Law (including our right to Interest for late payment).

14.5 Cancellation for convenience

SkyMesh reserves the right to remove any Service:

  1. if there is no Fixed Term specified in your Application, at any time by giving 30 days notice to you;
  2. if a Fixed Term is specified in your Application,
    1. at any time after the end of the Fixed Term by giving 30 days notice to you; or
    2. During the Fixed Term, if we have your consent; or
    3. During the Fixed Term, if we offer to migrate you to a reasonably comparable alternative service for the remainder of the Fixed Term and take reasonable steps to offset any more than minor detrimental effects of the migration caused by differences between the cancelled service and the alternative service we offer;
  3. if we reasonably determine that it is not technically or operationally feasible to supply the Service to you, at any time prior to the Service commencement date specified in Clause 3.4 by giving you notice.

If we advise you that we are removing your Service, you will not be liable to pay a disconnection fee, but will be liable to pay all other Fees incurred up to the time we remove your Service.

14.6 Expiration of a Fixed Term or Other Period

If we have agreed to provide a Service to you for a Fixed Term or any other agreed period, and that Fixed Term or other period expires and neither you nor we cancel the Service, we will continue to supply the Service to you on a month-to-month basis.

14.7 Connection Fees

We may charge you a fee for the disconnection or reconnection of any Service as set out in the Schedule of Fees and Charges, except where the disconnection was caused by our error or our failure to perform our obligations under this Agreement or was the result of any of the events specified in Clause 14.3.

14.8 Ongoing Liability

You remain liable for all Fees payable in respect of Services provided to you up to the time of cancellation, suspension or termination.

15. LIABILITY

15.1 Our liability for property damage, personal injury and death

We are liable to you for:

  1. any loss, destruction or damage to your tangible property during installation, repair or maintenance of Equipment; and
  2. personal injury (including illness and disability) or death;

which is caused by our fault, negligence or fraud.

15.2 Our liability under the Customer Service Guarantee

This Clause 15.2 applies subject to any waiver of your entitlements under the Customer Service Guarantee Standard (the ‘CSG’) that you have provided to us. It may be a condition of some services that you waive your entitlements under the CSG.

  1. To the extent that we provide you with a standard telephone service (as defined in the Telecommunications (Consumer Protection and Service Standards) Act 1999) and specified enhanced call handling features, our service must comply with the CSG. The CSG sets out minimum performance standards in relation to service connection times, fault repair times and keeping appointments to provide you with a Service. The CSG does not apply to Customer Equipment or to customers that have more than five telephone services. We will connect Services not covered by the CSG within a reasonable time.
  2. If we do not meet the CSG performance standards, you may be entitled to receive monetary compensation as specified in the CSG. However, there are circumstances in which we may be exempt from meeting those requirements, including if you have agreed to a CSG waiver under the terms of the relevant Conditions of Service in accordance with Part 5 of the Telecommunications (Customer Service Guarantee) Standard 2000 (No.2), where you unreasonably refuse us access to your premises or if you miss an appointment without giving us reasonable notice. For more information about the CSG, go to the Australian Communications and Media Authority website at www.acma.gov.au.

15.3 Our liability for Interruptions to the Service

    1. Subject to Clause 15.3(b), we accept liability to you for Interruptions to the Service to the extent of providing you with a pro-rata refund of service charges payable for the duration of the Interruption.
    2. The refund in Clause 15.3(a) does not apply:
      1. to Interruptions which occur because of:
        1. a system or network outage for an insignificant period;
        2. scheduled maintenance to Our Network, a Third Party Supplier’s network, Our Equipment or Purchased Equipment;
        3. a cancellation, suspension or restriction to the supply of the Service in accordance with Clause 14.4; or
    3. if you are separately entitled to receive compensation in respect of the same Interruption in accordance with Clause 15.2 or Clause 15.4.
  1. To receive the refund set out in Clause 15.3(a), you must contact our Customer Support line on 1300 759 637 and lodge a complaint about the Interruption.

15.4 Consumer Guarantees

We agree to provide Services to you subject only to the terms, conditions and warranties contained in the Agreement and those imposed by Law which cannot be excluded. For example, if we supply Equipment or a Service to you which costs less than a prescribed amount (currently $40,000) or which, regardless of cost is of a kind ordinarily acquired for personal, domestic or household use, then Consumer Guarantees require that:

  1. the Service will:
    1. be provided with due care and skill;
    2. be fit for any Disclosed Purpose (unless you do not rely on, or it is unreasonable for you to rely on, our skill or judgement that the Service will be fit for that Disclosed Purpose);
    3. be supplied within a reasonable time; and
  2. the Equipment will:
    1. be of acceptable quality and match any description;
    2. comply with any express warranties we give you;
    3. have clear title, not be subject to undisclosed securities and give you a right to undisturbed possession, (subject to Clause 10.1(a) and Clause 11.1(a));
    4. be fit for any Disclosed Purpose (unless you do not rely on, or it is unreasonable for you to rely on, our skill or judgement that the Equipment will be fit for that Disclosed Purpose); and
    5. match any sample or demonstration model.
  3. If the Equipment or Service we supply to you fails to meet a Consumer Guarantee then, subject to our right to limit our liability under Clause 15.5,:
    1. when the problem with the Equipment or Service is minor, we can choose between providing a repair or offering you a replacement or refund;
    2. when there is a major failure, you can:
      1. reject the Equipment or Service within a reasonable period (including Equipment connected with the Service) and either choose a refund or a replacement; or
      2. ask for compensation for any drop in value of the Equipment or Service; and
    3. you can ask for compensation for any reasonably foreseeable loss incurred by you as a result of the failure.

15.5 Limitation of Liability

  1. Where we are not permitted to exclude our liability for our breach of a Consumer Guarantee, but are permitted to limit our liability for such a breach, then, unless you are able to establish that it is not fair and reasonable for us to do so, our liability to you is limited to:
    1. if the breach relates to Equipment, the repair or replacement of the Equipment, the supply of equivalent Equipment or the payment of the cost of repairing or replacing the Equipment or supplying equivalent Equipment; or
    2. if the breach relates to a Service, resupplying the Service or payment of the cost of having the Service resupplied.
  2. The limitations of liability in Clause 15.5(a) do not apply to:
    1. a breach of the Consumer Guarantees relating to clear title, undisclosed securities and undisturbed possession under sections 51 to 53 of Schedule 2 to the Competition and Consumer Act 2010 (Cth); or
    2. a breach of any Consumer Guarantee relating to goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption.

15.6 Exclusion of Liability

To the extent permitted by Law, we have no liability to you or to any other person for:

  1. any Claim by you or any other person for Consequential Loss (other than as described at Clause 15.4(c)(iii));
  2. any loss or damage suffered by you in connection with this Agreement or the Service to the extent that your acts or omissions or any Customer Equipment cause or contribute to that loss or damage;
  3. any loss to the extent that it results from your failure to take reasonable steps to avoid or minimise your loss; and
  4. acts, omissions or defaults of any Third Party Supplier or any person who provides goods or services directly to you for use in connection with a Service. However, we will use reasonable endeavours to ensure that any Third Party Supplier cooperates in order to deliver the Service in a timely manner, provides and maintains the Service in a responsible fashion and rectifies any faults in relation to the Service in a timely manner.

15.7 Cancellation of a Service

Cancellation of a Service or termination or expiry of this Agreement does not affect the provisions of this Agreement concerning limitation of liability and indemnity.

16. FORCE MAJEURE

16.1 No Liability

Subject to our obligations under the CSG as described in Clause15.2, we are not liable for, and will not be deemed to be in breach of this Agreement in the event of:

  1. any delay in installing a Service;
  2. any delay in correcting any fault in a Service;
  3. failure to provide a Service or incorrect operation of any Service;
  4. Service outages; or
  5. any default by us in compliance with this Agreement,

if it is caused directly or indirectly by a Force Majeure Event.

16.2 Termination for Force Majeure

If any delay, Interruption or failure to deliver under Clause 16.1 continues for more than 3 months after the commencement of the delay, Interruption or failure to deliver, then either party may terminate the affected Service(s) by notice in writing to the other party.

17. ASSIGNMENT

17.1 Your Right to Assign

You may not assign or transfer or otherwise deal with any of your rights under this Agreement without our prior written consent.

17.2 Our Right to Assign or Transfer

  1. We may assign or otherwise transfer any of our rights under our Agreement to any person.
  2. We may transfer some or all of our obligations under the Agreement to a related body corporate (being a company in our corporate group).
  3. We may perform any of our obligations under the Agreement by arranging for those obligations to be performed by another person (including a Third Party Supplier). We would still be responsible to you for the performance of our obligations under the Agreement and your Services would be supplied on terms and conditions that are materially the same as the terms and conditions of our Agreement.
  4. In addition to our other rights in this Clause 17.2, we may assign, transfer or deal with our rights and obligations under this Agreement on terms to which you consent.

18. GENERAL

18.1 Giving Notice to You

We may satisfy any obligation to give you notice by:

  1. delivering the information to you in person;
  2. sending the information by pre-paid ordinary post to the address listed in our records for you;
  3. transmitting the information to the email address listed in our records for you. By applying for the Service, you consent to notices being sent to your email address. It is your responsibility to check your emails and to inform us of the most appropriate email address for receipt of notices or if you do not wish to receive notices via email;
  4. sending the information by facsimile;
  5. including the information on, in or with an invoice, including by an invoice made available to you online via the Website, provided you have consented to receiving the invoice in that format;
  6. in the case of pre-paid telecommunications Services, any of the above means or by making the information available to you by means such as through our Website, or at a retail outlet, and informing you how you can obtain the information by means of a recorded message or text message or in writing; or
  7. to the extent permitted by the terms of the Agreement and any other applicable Law, by publishing a notice in a daily newspaper circulating generally in the region or capital city of the State or Territory in which you ordinarily reside or carry on business.

Notices will be deemed given:

  1. For ordinary post, two Business Days after dispatch by ordinary post;
  2. For facsimile or electronic mail, upon acknowledgement of receipt of transmission by our facsimile equipment or our server respectively.

18.2 Disputes

We will seek to resolve any dispute by agreement or consultation with you and request that you phone our Customer Service Manager on 1300 759 637 in the first instance. If a dispute remains unresolved, you may have rights under the Telecommunications Industry Ombudsman (TIO) scheme. For further information go to www.tio.com.au or call the TIO on 1800 062 058 or (TTY) 1800 675 692.

18.3 Current Terms

A current version of our General Terms, the Schedule of Fees and Charges and the Conditions of Service may be found on our Website.

18.4 Intellectual Property

You do not own or have any legal interest in any of our intellectual property or in any telephone number, IP address, domain name, personal identification number or other locator or identifier issued by us to you.

18.5 Authority

If you have a business Service, you agree that if we need your consent to undertake certain actions then, provided we act in good faith, we may rely upon the authority of any of your employees, who tell us that they are authorised to provide that consent on your behalf. For residential Services, you must inform us if you want another person to have authority to access or make changes to your Service or account. Subject to our rights and obligations in Clause 6, we will not let another person access your account unless we have received your authority to so.

18.6 Entire Agreement

This Agreement contains the entire agreement between the parties and supersedes all prior agreements and understandings between the parties in connection with it.

18.7 Governing Law

This Agreement is governed by the Laws applicable in the State of Queensland. The parties submit to the non-exclusive jurisdiction of the courts of Queensland.

18.8 No Reliance

You acknowledge that:

  1. advice from SkyMesh’s staff is given in good faith and with the best of intention, however SkyMesh does not represent that its staff are experts in the operation of your computer hardware or software. You undertake to act on any advice given by any SkyMesh’s staff member at your own risk;
  2. SkyMesh makes reasonable efforts to ensure that the information on the SkyMesh website is correct and up to date. However, SkyMesh does not warrant the accuracy of that material.

18.9 Subcontractors

We may subcontract any of our obligations under this Agreement.

18.10 No Waiver

No failure to exercise, nor any delay in exercising, any right, power or remedy by a party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting the waiver unless made in writing.

18.11 Survival

Any provision of this Agreement which by its nature is intended to survive termination or expiry of this Agreement (including without limitation any exclusion or limitation of liability or indemnity in this Agreement) will survive termination or expiry of this Agreement for any reason.

18.12 Severability of Provisions

Any provision of the Agreement that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of the Agreement nor affect the validity or enforceability of that provision in any other jurisdiction.

19. NBN NETWORK

19.1 General

  1. This section applies if we supply an nbn™ Service to you.
  2. The Service can only be provided to Qualified Sites. We accept no liability or responsibility whatsoever for providing Services to sites that are not Qualified Sites.
  3. We will use our best endeavours to ensure a continuous Service, however this is not guaranteed.
  4. We will provide a free-of-charge 24/7 fault reporting service, and a Customer Support facility which operates from 8:00 am to 8:00 pm AEST Weekdays and 8:00 am to 5:00 pm Weekends and Public Holidays.
  5. The Service will be available to you at least 99 per cent of the time, averaged over a quarterly period, excluding outages caused by CPE failures and scheduled interruptions.
  6. In the event of a Service outage caused by a fault on the nbn™ or SkyMesh networks, we commit to restoration of the Service within 10 Business Days of being notified of the fault by you. If the restoration timeframes are not achieved, you will be entitled to a rebate of the daily charges for the days the service is offline in excess of the restoration timeframes. You will not be entitled to a rebate if the Service outage is caused by your equipment or home network.
  7. While we will use our best endeavours to ensure the data you transfer will be received by the intended destination (including electronic mail) we cannot guarantee that it will reach the intended destination.
  8. We will obtain and hold any necessary licenses required under Australian law. We will not be responsible for training you in the use of this Service.

19.2 Service Description

  1. The Service is supplied by means of the nbn™ network. You agree that the Service is supplied on a best effort basis only and that any other basis is not supported. The service may not always be available and may be subject to interruptions from time to time for any reason without notice and without your prior consent. Priority assistance for life-threatening medical conditions is not available with the Service.

19.3 Installation of Connecting Equipment

  1. You cannot become a SkyMesh customer until nbn co has successfully connected your premises to the nbn™ network.
  2. If your premises hasn’t already been connected, we will ask nbn co to arrange for an nbn™ approved installer to install the Connecting Equipment.
  3. nbn co, not SkyMesh, manages the availability of installation appointments to connect individual premises and one or more of these appointments will be required to connect your premises.
  4. You agree that you have the appropriate authority to authorise the installation at your premises. You agree that you or your authorised representative, aged 18 years or older, will direct the nbn™ installer where to install the Connecting Equipment before it is installed.
  5. If you require the Connecting Equipment to be subsequently moved, you agree that additional charges will apply. You acknowledge that the Connecting Equipment is supplied by nbn co, remains the property of nbn co and is not bundled with the Service we provide you.

19.4 Your Obligations

  1. You will ensure that any equipment supplied and installed by nbn co and owned by them is insured against all risks whilst in your possession and under your control.
  2. You agree that you have the appropriate authority to authorise installation of the Service at your premises.
  3. You must provide us with complete, accurate, truthful and up-to-date information in your Service application and keep us informed of any changes to this information including changes to credit cards (including credit card expiry dates), bank account
    and contact details.

19.5 Acceptable Use Policy

  1. You agree that the Services may only be used for lawful and authorised purposes. You agree to conduct yourself or allow anyone using the Service to conduct themselves in a responsible and considerate manner at all times. Storage, transmission or distribution of any material in violation of any Commonwealth, State or Territorial law is prohibited. This includes copyright material, material legally judged as threatening or obscene, defamatory material or material protected by trade secret.
  2. Any attempt to disrupt or interfere with users, Services or equipment, or unauthorised access to system areas and information on our network or any systems connected to our network, is strictly forbidden and may result in the termination or suspension of your access. Disruptions include, but are not limited to, monopolisation of Services, propagation or transmission of information or software which contains computer worms, Trojans, viruses, malware or other harmful components, using our network to make unauthorised entry to any other machine, causing or attempting denial of service attacks, flooding of a network, overloading a service, adversely affecting the ability of people or systems to use our network or the Internet, and denial of service attacks against people or systems.
  3. You agree to accept total responsibility for the content of files owned by you and stored on our network, and also accept total responsibility for any data transmitted or caused to be transmitted across our network.
  4. You agree that you will not send unsolicited bulk emails or spam via any method, and you further agree not to send harassing, threatening or abusive emails, or send forged or attempt to send forged e-mail messages using our network.
  5. You acknowledge that we do not edit or control the content and form of any information or data accessed through the Service (unless specifically legislated).
  6. You are responsible for maintaining the secrecy and confidentiality of all access information required by you to access the Service, and you agree not to disclose this to any other person.
  7. You are responsible for securing your computer and your home wireless or wired network.
  8. You agree that any data destined to or originating from your UNI will be counted against your monthly data allowance regardless of whether or not you requested it and whether or not it reached your computer.
  9. You agree to accept SkyMesh’s Data Usage figures for your service as being a true and correct record of your usage.
  10. You must notify us immediately if your username and/or password are lost or you think that your username and/or password are being used without your authorisation. You will be responsible and liable for any unauthorised use of the Service.
  11. Usage of the service is subject to nbn co’s Fair Use Policy. You acknowledge that nbn co itself may limit or cease the supply of the Service if nbn co, in its own opinion, considers your use of the Service to be inappropriate or excessive.

19.6 Service Reduction and Service Suspension

  1. nbn co may immediately reduce or suspend your FTTB or FTTN service if it reasonably considers that the continued supply of your service, or that your VDSL2 Equipment, is likely to prejudice the integrity or result in the deterioration of the operation or performance of its network or any other service.

19.7 Payment Terms

  1. You must pay for the Service over the full Agreement Term, and acknowledge that our payment terms are monthly in advance. Your SkyMesh Tax Invoice will be issued monthly on the same calendar day (where possible), including rental of the service in advance, and any Data Blocks purchased during the prior billing period.
  2. If you’ve registered with us for automatic credit/debit card or direct debit payments, we will process a payment for the invoiced amount within 24 hours of issuance of the Tax Invoice. However, if you also have a SkyMesh Phone or SkyMesh Voice product on the same SkyMesh Tax Invoice, we will give you an extra 10 Business Days to review the charges on your Tax Invoice. If you wish to dispute any charges on your Tax Invoice, you may call our Accounts Team on 1300 759 637 to begin the SkyMesh Invoice Dispute Resolution Process. Once your dispute is lodged, you’ll be re-invoiced and/or credited such that your account balance temporarily reflects only the remaining non-disputed charges. If your payment has not yet been processed, then the payment to be processed will cover only the nondisputed charges. If your payment had already been processed at the time you began the dispute process, your account will be credited or refunded to reflect only non-disputed charges. If the disputed charges are later determined to be fully or partially correct, the relevant charges will be added to your next SkyMesh Tax Invoice. Should your credit/debit card or direct debit account not be able to be debited for any reason, you will be considered in default and we reserve the right to disable your account and to collect all outstanding fees and charges including those charges incurred as a result of your default in payment.
  3. You agree to assist SkyMesh with any requested troubleshooting activities when you report a problem with your Service, and you acknowledge that SkyMesh is not able to progress your support request without your assistance and participation. You agree to use the features of My SkyMesh rather than contacting us for functions which include but are not limited to retrieving account information, checking Data Usage, changing Plans, buying Data Blocks, creating new email addresses, changing or resetting passwords, obtaining copies of Tax Invoices, updating credit/debit card details and expiry dates, updating your contact details and making one-off payments on your account. You are responsible for providing all necessary equipment for the connection to the Service, including a computer with a network adaptor and a stable 230 Volt AC electricity supply. You acknowledge that we are providing a residential grade broadband Internet Service, not a fully guaranteed business grade Service. If you use your Service for business use, you are responsible for providing a backup broadband Internet service for use during outages. In the event of loss or damage to nbn co’s equipment, nbn co will, at their discretion, repair or replace the equipment and you will be responsible for all costs incurred including but not limited to cost of repair or replacement of the equipment, cabling or fixings, travel costs and so on. You will be responsible for any collection fees (including legal fees and any other costs) incurred by us as a result of the collection of outstanding monies including interest at the rate 10% per annum calculated daily and compounded monthly. You will indemnify us and our Third Party Suppliers in respect of all costs, damages, loss whatsoever including any third party claims or costs, howsoever arising from any default, breach or termination of this Agreement by you. You agree that we may use Third Party Suppliers for the provision of this Service and you agree that you will not contact any of our Third Party Suppliers, other than in response to their communications. You acknowledge that if you do contact one of our Third Party Suppliers, other than in response to their communications, that you will be liable for all costs imposed on us by our Third Party Supplier.

19.8 On Site visits

  1. On Site visits, including service calls to repair faulty or damaged equipment are charged at nbn co’s then current applicable rates plus materials and travel costs, except where the fault is covered by Warranty, in which case there will be no charge.
  2. The Connecting Equipment is covered by Warranty and will be serviced by nbn co’s service agents at no cost to you except for accidental or deliberate damage, which may be covered by your household insurance policy.

19.9 Access to Premises

  1. You agree to enable nbn co and any personnel of nbn co to enter and do anything necessary in respect of that site or premises to:
    1. supply any service;
    2. deliver, install, connect, inspect, reposition, modify, replace, maintain, repair, service, disconnect and remove that part of the nbn network, including any nbn co equipment, or any other items owned or controlled by nbn co.

19.10 nbn co Liability

  1. nbn co excludes (to the maximum extent permitted by law) all liability of nbn co, all Related Bodies Corporate of nbn co, and all of each of their personnel, arising from or in connection with the Service and the Connecting Equipment.

19.11 Interference with the Service

  1. You agree that you will:
    1. Not interfere with normal operation of the Service or any facility, or make either unsafe;
    2. Allow us and our Third Party Suppliers safe access to the customer premises if required; and
    3. Ensure that we and our Third Party Suppliers are provided with sufficient and timely access to the customer premises to enable us to provide the Service.
  2. If you do not have control or have access to the premises in which the Service is delivered, you must:
    1. Procure for us and our Third Party Suppliers all such access to the premises as may be required; and
    2. Indemnify us and our Third Party Suppliers against any claim by the owner or occupier of the Service premises, or any other person, in relation to the entry of those premises.

19.12 Interference with the Equipment

  1. You agree that neither you nor any other person (except nbn co or their nominated installer or representative) will or attempt to carry out any modifications, maintenance, relocation or repair of any supplied equipment without their prior approval. You agree not to interfere with, alter, remove or deface any labelling, markings, stickers or serial numbers on the CPE not owned by you.
  2. Any item damaged or discarded by you whether purposefully, maliciously, accidentally or due to ill-will, mistreatment, undue care or otherwise will be repaired or replaced at your expense. We reserve the right to inspect the equipment to determine the fitness of the equipment to continue to provide the Service under the Agreement and we may at our sole discretion decide to
    terminate the Agreement if you refuse to pay for the repair or replacement of damaged equipment.

19.13 Termination

  1. You may cancel this Agreement in whole or in part by giving us at least thirty (30) Days’ notice in writing specifying a Cancellation Date provided that notice of cancellation does not take effect prior to a period of 30 days from the Service Commencement Date. Your Service will be cancelled 30 days after we confirm receipt of your written notice of cancellation (Cancellation Date). The Agreement will remain in force until the Cancellation Date and a pro rata period fee applicable to the Cancellation Date will be due and payable on the day we receive your written notice of cancellation.
  2. We may cancel this Agreement in whole or in part by giving you at least thirty (30) Days’ notice in writing specifying a Cancellation Date provided that notice of cancellation does not take effect prior to a period of 30 days from the Service Commencement Date. Provided that all payments due up to the termination date have been paid, we will carry out our obligations under this Agreement to such date.
  3. We may cancel this Agreement on notice to you if you:
    1. Become bankrupt or go into liquidation or make any arrangement for the benefit of your creditors or become subject to official management;
    2. Breach the warranties contained in the Interference clauses hereof; or
    3. Breach any of your obligations under this Agreement and fail to remedy the same within thirty (30) days after receipt of written notice from us requesting you to do so.
  4. You may cancel this Agreement on notice if we:
    1. Go into liquidation or make any arrangement to benefit our creditors or have a receiver or official manager appointed; or
    2. Breach any of our obligations under this Agreement and fail to remedy the same within thirty (30) days after receipt of written notice from you requesting us to do so.
  5. Rights and obligations which by their nature should survive will remain in effect after termination or expiration of this Agreement.
  6. On the termination of this Agreement, you agree to allow nbn co to leave their CPE in place at your premises for the use of future residents.
  7. If you require the Connecting Equipment to be removed from your premises, you will be liable for all costs involved, and you acknowledge that this can only be performed by nbn co. You agree to allow nbn co or their nominated representative access to your premises to collect its Connecting Equipment. Furthermore, you agree that nbn co or its nominated representative may leave the cabling in place, including the Premises Connection Device, otherwise you agree to make good any repairs at your expense.

19.14 Limit of Liability

  1. SkyMesh does not warrant that the Service will be free from interruptions, dropouts, delays, faults or errors. SkyMesh will not be responsible for any loss and/or damage to You or Your business that may result from any interruptions, delays, faults or errors in the supply of the Service.
  2. All terms, conditions and/or warranties that may be implied into this Agreement, statutory and otherwise, relating to the provision of the Service by SkyMesh are excluded to the fullest extent permitted by law.
  3. SkyMesh’s liability for breach of any term, condition or warranty, or under any remedy implied by law, which cannot be lawfully excluded, will be:
    1. Limited (if permitted by law), at SkyMesh’s option, to the repair or resupply of equipment or Service or the payment of the cost of having the equipment or Service re-supplied; and
    2. Reduced to the extent that such liability is caused by Your negligent acts and/or omissions and/or breach by You of the terms of this Agreement.
  4. The aggregate liability of SkyMesh for all direct, indirect and consequential losses (including loss of business, revenue, profits, use, data or other economic advantage), damages, costs, expenses, actions and claims arising out of, or otherwise in connection with this Agreement, whether based on an action or claim in contract, equity, negligence, intended conduct, tort or otherwise, is limited to the amount you would be liable to pay to us for twelve months access to the Service.
  5. We have no liability to You or to any other person, for:
    1. The acts or omissions of any third party, including the suppliers which have been engaged by SkyMesh for the purpose of supplying or maintaining a Service supplied to You under this Agreement;
    2. Faults or defects in Services which are caused by Your own conduct or misuse or the conduct or misuse of others;
    3. Faults or defects that arise in telecommunication services provided to You other than under this Agreement;
    4. Any loss of profits, loss of data, loss of bargain and damage to reputation or for any form of indirect or consequential loss, whether in respect of breach of contract, equity, negligence, intended conduct, tort or otherwise, arising out of, or in connection with, the provision of the Service or this Agreement;
    5. Faults or defects in the Service that arise due to equipment or cabling owned by You or otherwise in Your control; or
    6. Faults or defects in the Service that arise due to failure by You or any third party (other than a contractor or agent engaged by SkyMesh) to appropriately maintain any equipment or cabling relevant to the supply of the Service.

19.15 Email Addresses

  1. You are entitled to 10 free email accounts, and 50MB of disk storage in each.
  2. All personal email accounts can use a maximum capacity of 50MB.
  3. SkyMesh does not provide support or additional features for email accounts.
  4. You acknowledge and agree that data may be lost or corrupted in connection with use of the Service. Accordingly, SkyMesh strongly recommends that you routinely back-up emails to an external source.
  5. Except as required under Clause 15.4, SkyMesh accepts no liability for lost or destroyed data.

19.16 IP Addresses

  1. You agree that any IP addresses allocated to you in connection with the Service may change from time to time, and the IP addresses always remain our property or the property of our Third Party Suppliers.
  2. You agree that SkyMesh may use private IP addresses in the provision of this service.
  3. We will provide you with an exclusive, non-transferable license to use the non-private IP addresses provided by us in your Equipment for the sole purpose of enabling those devices to access the Service. This provision terminates immediately if you:
    1. terminate the Service with us; or
    2. breach our Agreement.

19.17 Upon Termination

Upon termination of our Agreement you must immediately cease using and remove the supplied IP addresses from all software and Equipment that contain the supplied IP addresses.

19.18 Assignment

All IP addresses are dynamically assigned unless a static IP option is provided in your Application. Where dynamic IP addresses are supplied for a Service, those IP addresses may be subject to change without notice and at irregular intervals.

19.19 Data Allowance

  1. Upon reaching your allocated data allowance you may either:
    1. be charged in accordance with the excess fees set out in our Schedule of Fees and Charges; or
    2. Shaped Services may be implemented,

    as specified in your Conditions of Service.

19.20 Special Meanings

Co-existence Period means the period during which nbn co is required to adjust the normal operations of the nbn co FTTB network by way of a Downstream Power Back-off.

CPE means customer premises equipment. The CPE includes but is not limited to the broadband router, telephone adapter and network cabling.

Connecting Equipment means:

  1. for FTTP services,
  2. for FTTB services,
  3. for FTTN services,
  4. for HFC services,
  5. for Sky Muster services, means the indoor and outdoor components of the NTD including the satellite dish and any equipment between those components.
  6. for fixed wireless services, the indoor and outdoor components of the NTD, power supply, connecting cables and any equipment between those components;

Data Speed means your maximum throughput as measured by the nearest SkyMesh Speed Test server hosted by SkyMesh. Any data rates referred to by us refer to the Peak Information Rate (Traffic Class 4) of your Access Virtual Circuit. Your Data Speed will always be slightly less than the Peak Information Rate achieved by your Service due to network protocol overheads. Using a Wi-Fi connection to access your Service will reduce your Data Speed. Your Data Speed may vary for reasons which include
but are not limited to:

  1. The number of simultaneous end users being served by nbn™ network;
  2. Interference during a co-existence period or any external electrical noise;
  3. The quality of the line, bridge-taps, distribution frame and in-building cabling;
  4. The service being placed into a Repair Profile;
  5. Third Party Supplier network congestion;
  6. Internet Congestion;
  7. Contention Ratios;
  8. Faulty equipment; and
  9. Errors in the configuration of your equipment, home network or software.

Data Usage means the total monthly count of network traffic accrued by your Service as measured by NetFlow equipment operating on our network.

Default Fees means all charges, costs and expenses we may incur in relation to a breach by you of your obligations to us.

FTTB means Fibre to the Building.

FTTN means Fibre to the Node.

FTTP means Fibre to the Premises.

HFC means Hybrid Fibre Coaxial.

Installation Date means the date your Service has been installed and site acceptance has been completed by nbn co.

MDF means Main Distribution Frame.

MDU means a site with an MDF which comprises one or more premises in a single location.

My SkyMesh means the SkyMesh customer self-service portal at https://my.skymesh.net.au/ that you use to manage your account with us.

nbn co means nbn co limited (ABN 86 136 533 741) of Level 11, 100 Arthur Street, North Sydney NSW 2060.

Network Boundary means the Jumper Cable termination on the Customer Side MDF.

Network Boundary means the designated Ethernet port on the NTD.

NTD means Network Termination Device.

Qualified Site means a site that has been determined by SkyMesh as being serviceable by the nbn network.

Repair Profile means a spectrally limited VDSL2 stability profile designed to preserve the integrity of nbn co’s VDSL2 vectoring system.

Schedule means the duly completed SkyMesh Application.

Service means the supply of broadband Internet access by means of the nbn network.

Service Commencement Date means the date that the Service is activated by us and as advised by us.

TCP Code means the Telecommunications Consumer Protections Code C628:2012 registered by the ACMA.

Third Party Supplier means a third party supplier used for the provision of Services provided under this Agreement.

UNI means the User Network Interface.

Upstream Service Provider means the provider that supplies services to SkyMesh.

VDSL2 Equipment means any CPE that operates on a VDSL2 system as part of a FTTB or FTTN Service.

You means you, or anyone you allow to use, share or access the Service.

Speak with an Australian nbn™ sales advisor
Call now: 1300 759 637