Standard Form of Agreement

Standard Form of Agreement – General Terms for Residential and Small Business Customers

These General Terms set out your rights and obligations. Please read them carefully as they may have important consequences for you. This Standard Form of Agreement is between you and Swoop Telecommunications Pty Ltd ABN 87 109 931 731 (Swoop). The agreement applies to your access, connection and use of the Services, including the supply of any related goods or installation and maintenance services. By accessing and using a Service you represent that you have read, understood and accepted these General Terms and agree to be bound by them. If you do not agree to these General Terms please do not use the Service or register an account. 1. Our agreement with you
1.1. This is a Standard Form of Agreement (SFOA) formulated in accordance with Part 23 of the Telecommunications Act and for the purpose described in section 479 of the Telecommunications Act. Accordingly, the terms of this SFOA apply to the provision of Services and goods to you by Swoop and its Related Bodies Corporates, except to the extent that we agree in writing that different terms will apply, in which case those different terms will apply to the extent of any inconsistency. If you obtain a Service or good from us, you do so in accordance with the terms and conditions contained in the documents listed in clause 1.2 which comprise your Agreement with us. 1.2.This SFOA together with any applicable Critical Information Summaries (CISs), Service Schedules, Service Orders and the Acceptable Use Policy constitute the entire agreement that governs the Services and goods that we supply to you (Agreement). Where there is any inconsistency between the documents forming the Agreement, the inconsistency shall be resolved in the following order of priority (with a document higher in the list taking priority over any document lower in the list): (a) the applicable Service Order;
(b) the applicable Service Schedule;
(c) the applicable Pricing Schedule;
(d) the applicable CIS;
(e) this SFOA;
(f) Swoop policies including but not limited to our Acceptable Use Policy, Privacy Policy, Credit Policy, Financial Hardship Policy, Complaint Handling Policy and other policies included or varied from time to time and available on our website. 1.3. The Agreement supersedes all prior understandings, representations, arrangements and agreements between you and us regarding its subject matter. During the Term of the Agreement, we may need to change the terms of the Agreement due to circumstances beyond our control, including changes in law, security obligations, changes by one of our third party suppliers to the terms on which they supply services to us or to the functionality or nature of a Service or its underlying technology. You agree that we may make these changes on reasonable notice to you. 1.4. In addition to changes which we are required to make due to circumstances beyond our control, we may elect to make changes to the Agreement for our own purposes. Subject to the exceptions permitted by subclause (d), if we make any changes which will be detrimental to you or if we are required to do so by law we will give you notice of changes we propose to make to the Agreement at least 21 days before the date that those changes are to take effect and the following provisions will apply: (a) Subject to the exceptions in subclause (d), if the proposed changes will cause you more than a minor detriment you may cancel the affected Service without incurring any Early Termination Charge or penalty provided that you pay any outstanding fees incurred up to the date on which the Agreement ends and any amounts that cover installation costs or equipment, by giving us notice in writing to that effect within 42 days of the date of our notice. (b) If the date on which you give notice to us to cancel the Service in accordance with subclause (a) occurs after the date of the change to the Agreement, the change will not apply to you and any invoices or payments will be corrected accordingly. 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 that we have provided to you and that you have not paid for will be owed by you as a lump sum and become due. (c) You agree that if you do not give notice to us within the 42 day period referred to in subclause (a), 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. (d) You agree that our obligation to give you 21 days’ notice of our proposed changes and to give you a right to terminate the Agreement in accordance with subclause (a) will not apply in relation to: (i) urgent changes we are required to make by law, for security reasons, or technical reasons necessary to protect the integrity of our network or our supplier’s network; (ii) the introduction of a new fee or an increase in an existing fee due to an additional or variation of a tax or levy imposed by law (where it is fair and reasonable for us to pass that on to you); (iii) 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 (iv) increases in fees due to increases imposed on us by other suppliers for international carriage services (including for voice and data) and content and premium services (including 1900 prefix services) that 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 subclause (d). 1.5. Definitions and interpretation provisions are set out in clause 18. 2. Ordering procedure
2.1. You may apply for a Service from us at any time. If we agree to provide you with the Service, we will accept your application in a Service Order, which only becomes binding upon our acceptance. 2.2. We reserve the right to reject a Service application prior to our acceptance of it for any reason. Our decision on whether to accept a Service application is based on any factors we consider relevant, including, but not limited to,: (a) the availability of that Service to you;
(b) your eligibility for the Service;
(c) your credit history;
(d) the information you provide to us; and
(e) your conduct or history in respect of any previous Services provided by us to you. 2.3. If your Service application is accepted, this SFOA between you and us commences on the earlier of: (a) if you complete an online application on our website, the date you submit the online application;
(b) if you apply by telephone, the key terms we read to you over the telephone commence on the date you accept the key terms and the remainder of the SFOA terms commence on the Service commencement date;
(c) if you complete a written application form, the date you complete the application form; or
(d) the Service commencement date. 2.4. You may request changes to the Services specified in a Service Order by sending a change order request to us. If we agree in writing to the change order request, the Service Order will be amended as specified in the change order request. 3. Security deposits and credit assessment
3.1. We may require that you pay a Security Deposit as a precondition to:

(a) accepting any Service application; and/or
(b) continuing to provide a Service in circumstances where you have failed to pay any undisputed Charges for that Service by the Due Date or we believe you are a credit risk,
by sending a notice to you specifying the Security Deposit that we require (Security Deposit Notice). 3.2. If we provide you with a Security Deposit Notice, you must pay the Security Deposit within 5 Business Days of the date of the Security Deposit Notice and we will have no obligation to provide the Services referred to in the Security Deposit Notice until you have done so. 3.3. We may apply all or part of the Security Deposit (Deduction) at any time to any outstanding Charges that are not paid to us by the due date in accordance with the Payment Terms. You must replenish the amount of any Deduction by paying that amount to us, within 5 Business Days of request from us. 3.4. Swoop may conduct a credit assessment on you at any time. You authorise Swoop to make all enquiries necessary to determine your creditworthiness and you agree to provide Swoop with all reasonable assistance necessary for the credit assessment. 4. Provision of Services
4.1. We will use reasonable endeavours to make the Services ready for use from the service commencement date specified in a Service Order. Service commencement dates are only estimates and are not binding. Sometimes, Services cannot be activated or their activation may be delayed due to a range of different matters. We will not be liable for any such matters. 4.2. Subject to clauses 4.1 and 5, we will provide the Services (the subject of a Service Order) in a professional manner in accordance with the this Agreement, on and from the Commencement Date for the Initial Term, except where the Service Order is terminated in accordance with the Agreement. 4.3. We may modify the manner in which a Service is provided at any time (including, by modifying or adopting alternative technology or changing the underlying network topology) provided that the modification does not have a material adverse effect on the performance of the Service. 4.4. Upon expiry of the Initial Term, the relevant Service Order shall automatically renew for subsequent consecutive periods of one month (each, a Renewal Term) until and unless: (a) either party notifies the other party that it will cancel the Service Order at least 30 days prior to the expiry of the Initial Term or Renewal Term (as applicable) in which case where such notice is given the Service Order will terminate at the end of the Initial Term or then current Renewal Term (as applicable); or
(b) the Service Order is terminated in accordance with the Agreement. 4.5. You are aware that we may be reliant on third party suppliers for supplying the Service to you and that circumstances beyond our control may cause faults in the Service from time to time. Subject to your rights under the Australian Consumer Law and to the maximum extent permitted by law, we are not obliged to restore any fault with a Service that is caused as a result of damage due to causes external to the facilities used by us and/or our third party suppliers to provide the Service, or interference, or a Force Majeure Event, or planned outages, including scheduled maintenance. 4.6. We will provide reasonable notice of scheduled maintenance and where possible undertake scheduled maintenance at a time that will minimise disruption to your use of the Services. If unscheduled or urgent maintenance is required, it may not be possible for us to provide notice or to schedule the maintenance at a time that is convenient to you. 4.7. We may suspend the Service if necessary because of an emergency, to comply with a law, or to protect persons, Our Equipment, facilities or our network, and third party supplier equipment or networks. 4.8. We do not offer priority assistance. Priority assistance is a service designed to help people with diagnosed life-threatening medical conditions that depend on a reliable home telephone service to be able to call for assistance when needed. A customer who is eligible for priority assistance is entitled to prioritised service connection and fault repair of telephone services and improved reliability of services where recurring or multiple faults occur. Telstra is currently the only carrier required to offer priority assistance. If Priority Assistance is essential to you it is best you maintain your line rental with Telstra. 5. Your obligations
5.1. Our obligation to deliver Services under the Agreement is subject to you: (a) providing all reasonable cooperation, assistance, information, and safe access to all relevant premises, equipment, systems and networks, as required for us to exercise our rights or meet our obligations under the Agreement, including those of recovering our equipment after the Service is terminated;
(b) complying with the operational and technical specifications specified in any applicable CIS, Service Schedule and Service Order; and
(c) otherwise complying with your obligations under the Agreement. 5.2. You will owe us the value of Our Equipment including Unpaid Equipment as a debt due if we cannot access your premises to recover it once the Services have been terminated. 5.3. You and any person who accesses your Service must not use any Service in breach of applicable law, all reasonable directions by us or the Acceptable Use Policy., 5.4. You must provide us with all information we reasonably require under the Agreement (including for the purposes of investigating a possible breach of the Agreement or misuse of the Service). 5.5. You acknowledge that, where permitted by law, we may intercept communications over the Service. 5.3. If a fault occurs you must attempt to diagnose its cause prior to contacting us to determine that the fault is not caused by Customer Equipment, your equipment, your software, electrical supply, content or services that are not supplied by us. You are responsible for rectifying faults relating to your equipment or network, your software, electrical supply, content or services that are not supplied by us and for any costs we incur in relation to faults that arise for such a reason. You must provide all reasonable assistance to us in rectifying faults, including arranging access to your premises. 5.4. Except where we agree otherwise in writing:

(a) you are solely responsible for cyber security, data backups and the installation and maintenance of cabling beyond the Network Demarcation Point, electrical supply and the maintenance of your equipment; and
(b) we have no responsibility for anything that occurs on your side of the Network Demarcation Point. 6. Charges
6.1. We may invoice you for the Services, regardless of whether you use, or have commenced use of, the Services. We reserve the right to reissue an invoice if any error in the amount shown as owing on the invoice is subsequently discovered. We will issue our invoices for the Services: (a) at the times specified in the applicable CISs, Service Schedules and/or Service Orders;
(b) or where no time is specified in a CIS, Service Schedules and/or Service Order, on and from the RFS Date for each applicable Service. 6.2. We may charge you an additional amount to service, modify, repair or replace the Service or equipment used in connection with the Service where the need to do so arises from: (a) your breach of the Agreement;
(b) a negligent or fraudulent act or omission by you (or any person with your express or implied authority, or any of your employees, agents or contractors);
(c) a failure of any Customer Equipment arising out of any act or omission by you (or any person with your express or implied authority, or any of your employees, agents or contractors); or
(d) a failure in power supply arising out of an or omission by you (or any person with your express or implied authority, or any of your employees, agents or contractors).
We will provide details of additional charges prior to commencing the Service modification, repair or replacement. 6.3. The first month’s Service charges, any applicable set-up fees, and any equipment charges must be paid in full before the Service commencement date, and are non-refundable unless we are unable to provide the Service. 6.4. Subject to clause 7, you must pay all Charges by one of the options specified in our invoices by the Due Date, without setoff, counterclaim or deduction. We reserve the right to charge you for any fees that we incur from, or must pay to, your bank or other financial institution. We may use debt recovery services to recover any outstanding Charges. You may be liable for any resulting charges and collection costs, such as legal costs. You further agree that we may use a Related Body Corporate to perform billing and collection services on our behalf in relation to the Charges and that amounts invoiced by and paid to that Related Body Corporate shall be treated as payments to us under the Agreement. 6.5. Subject to clause 7, if you fail to pay any Charges by the Due Date for any Service (Overdue Amount), we may: (a) charge you interest on the Overdue Amount at a rate of 2% above the current overdraft rate that we have with our principal banker from time to time; and/or
(b) subject to upon 5 Business Days’ notice to you, restrict, suspend or disconnect the provision of the Service to you, which restriction, suspension or disconnection will remain in effect until we receive full payment of the Overdue Amount (and any interest that has accrued pursuant to subclause (a)) or the applicable Service Order is terminated (whichever occurs earlier).
(c) We are not obliged to provide you the notice referred to in subclause (b) if we assess that you or your account status presents an unacceptably high credit risk to us if we reasonably suspect Fraud or attempted Fraud; or you have asked us to restrict or suspend your Service in the circumstances. 6.6. Except as otherwise agreed in writing, all amounts and Charges specified in the Agreement: (a) are payable in Australian dollars;
(b) are exclusive of GST;
(c) must be paid by the Due Date; and
(d) are non-refundable, to the extent possible by Law. 6.7. If GST is applicable with respect to any taxable supply (as defined under the GST Law) made by us under this Agreement, we will issue a tax invoice to you with respect to that taxable supply and you must pay the GST at the same time as the payment for the relevant taxable supply. 7. Charges disputes
7.1. You must notify us in writing, prior to the Due Date, of any amounts set out in an invoice that you wish to dispute together with a description of the disputed amounts and the basis of the dispute (Disputed Charges Notice) and pay the non-disputed Charges by the Due Date. 7.2. You must not dispute an amount set out in any invoice unless you genuinely believe that the amount is not payable. 7.3. You must not dispute an amount set out in any invoice other than in accordance with clauses 7.1 and 7.2. 7.4. If we receive a Disputed Charges Notice, it will be governed by the dispute resolution procedure set out in our Complaint Handling Policy. 7.5. If a dispute the subject of a Disputed Charges Notice is resolved in our favour, you must pay us interest on the unpaid amount at a rate of 2% above the current overdraft rate that we have with our principal banker from time to time, from the Due Date until the actual date of payment (together with the disputed amount). 8. Risk and title to Our equipment
8.1. Title in Our Equipment will remain with us at all times. 8.2. Title in Purchased Equipment will remain with us and will only pass upon full payment to us of the Charges for the Purchased Equipment as set out in the relevant Service Order. 8.3. The risk of loss or damage to Our Equipment or any Purchased Equipment passes to you upon delivery of the equipment to you. 8.4. You may only use Our Equipment to connect to a Service. 8.5. You must only use Our Equipment or any other equipment in connection with any Service in accordance with applicable industry standards, the Documentation and our reasonable directions. 8.6. You must keep Our Equipment, including Unpaid Equipment, in good repair and condition (fair wear and tear excepted) and must not sell, assign or permit any security interest, charge, lien, mortgage or encumbrance to be created with respect to Our Equipment or Unpaid Equipment at any time (other than a security interest approved in writing by us). 8.7. You must promptly notify us if Our Equipment including Unpaid Equipment that we deliver to you is lost, defective, stolen or damaged. You must pay us the full replacement value of Our Equipment including Unpaid Equipment if and when such incidents occur unless the loss, defect or damage is our fault. 8.8. You must allow us to access, service, modify, maintain, repair, remove and/or replace Our Equipment including Unpaid Equipment in your possession or control at any time, in our absolute discretion, on reasonable notice. 8.9. You are responsible for any Customer Equipment and any other equipment not supplied by us, that you use in connection with any Service. You must only use equipment in connection with any Service that complies with all applicable standards. 9. Personal Properties Securities
9.1. You must keep Our Equipment and Unpaid Equipment in good repair, free from any encumbrance and must not register any interest in Our Equipment and Unpaid Equipment under the PPSA. You agree that we may register an interest in Our Equipment and Unpaid Equipment under the PPSA without complying with any provision of the PPSA or Personal Property Securities Regulations 2010 (Cth) that may be contracted out of. 9.2. We may repossess any of Our Equipment and Unpaid Equipment on termination or expiry of any Service Order. You must do everything required to provide us with full, unrestricted and safe access to Our Equipment in order to repossess Our Equipment and Unpaid Equipment under this provision. If we ask you to remove and deliver any of Our Equipment and Unpaid Equipment to us, then you must do so at your risk and expense. 10. Personal Information
10.1. You consent to us obtaining, storing, using and disclosing your Personal Information in accordance with our Privacy Policy, Credit Management Policy and any applicable law. 11. Intellectual Property Rights
11.1. You agree and acknowledge that the Agreement does not transfer or assign any IPR to you and: (a) we own all IPR in the Services, Documentation and in any software underlying the Services;
(b) you must not take any step to invalidate or prejudice our IPR. 11.2. As between you and us, you own all IPR in the Network Data. 12. Liability and warranties
12.1. Neither party is liable to the other party for Consequential Loss howsoever arising. 12.2. Except for liability or loss resulting from fraud or a breach of a law and to the extent not excluded by statute, each party is only liable to the other party for loss or damage incurred as a result of a breach of the Agreement, in the aggregate, for one or more breaches, up to a capped amount equivalent to the Charges paid or payable by you in a 12 month period and any unpaid charges for Equipment, and which cap is reduced to the extent the other party caused or was responsible for such loss or the loss was caused by a Force Majeure Event. 12.3. If the goods or services we supply to you are subject to a non-excludable condition, warranty, guarantee, right or remedy implied by the Australian Consumer Law or any other applicable law and the goods or services are not ordinarily acquired for personal, domestic or household use or consumption, then pursuant to section 64A of the Australian Consumer Law, we limit our liability for breach of any such non-excludable warranty, guarantee, right or remedy (where possible), in respect of each of the goods and services, at our option, to one or more of the following: (a) if the breach relates to goods:
(iv) the replacement of the goods or the supply of equivalent goods;
(v) the repair of such goods;
(vi) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(vii) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(iv) the supplying of the services again; or
(v) the payment of the cost of having the services supplied again. 12.4. Other than with respect to any non-excludable warranty, guarantee, right or remedy implied by the Australian Consumer Law or any other applicable law, all representations, warranties, guarantees and conditions that are not expressly set out in the Agreement are excluded from the Agreement. 13. Mutual indemnity
13.1. You must indemnify us and our Personnel (if applicable) from and against all liability to the extent that such liability arises out of or in connection with: (a) Network Data;
(b) your use or misuse of Customer Equipment or Our Equipment;
(c) your breach of the Agreement;
(d) any act or omission by a person that uses the Service supplied to you, which, if committed by you, would constitute a breach of the Agreement by you; and
(e) a breach of a law by you or a person that uses the Service supplied to you. 13.2. We will indemnify you from and against all Liability to the extent that such Liability is a result of: (a) our breach of the Agreement;
(b) any act or omission by our Personnel, which, if committed by us, would constitute a breach of the Agreement by us. 14. Suspension and Termination
14.1. We may terminate a Service Order or the Agreement (at our option) if: (a) you breach the Agreement and the breach is incapable of remedy;
(b) you breach the Agreement, and the breach is remediable and you fail to remedy the breach within 7 days of notice from us;
(c) you suffer an Insolvency Event, except where such termination would contravene the Corporations Act 2001 (Cth) or any other applicable Law;
(d) a Force Majeure Event lasts for more than 20 consecutive days that prevents us from being able to supply a Service; or
(e) we need to do so in order to comply with any applicable Law or direction of a government authority. 14.2. You may terminate a Service Order or this Agreement if:
(a) we breach the Agreement and the breach is incapable of remedy;
(b) we breach the Agreement, and the breach is remediable and we fail to remedy the breach within 7 days of notice from you;
(c) we suffer an Insolvency Event, except where such termination would contravene the Corporations Act 2001 (Cth) or any other applicable Law; and
(d) a Force Majeure Event lasts for more than 20 consecutive days. 14.3. All Service Orders will terminate if the Agreement is terminated. 14.4. If a Service Order is terminated or expires:
(a) we will cease to provide you with the applicable Service;
(b) you must pay us all Charges incurred prior to termination or expiry;
(c) we will return the Security Deposit (if any) less any overdue, outstanding or applicable Charges or amounts;
(d) if we supplied you with Our Equipment or Unpaid Equipment:
(i) you must return Our Equipment and any Unpaid Equipment to us within 5 days; or
(ii) upon providing you with prior notice, we will arrange to collect Our Equipment and any Unpaid Equipment from you, at your cost; and
(iii) if you fail to return or fail to allow and pay for the collection of Our Equipment and any Unpaid Equipment, you will be liable for the full replacement cost of the relevant equipment, as determined by us acting reasonably. 14.5. If the Agreement is terminated prior to the expiry of the Initial Term or any then current Renewal Term for any reason (other than due to our breach of the Agreement), you will pay all unpaid amounts for any Unpaid Equipment and any amounts for early termination set out in the relevant CIS (collectively, the “Early Termination Charges”). We will send you a tax invoice in respect of the Early Termination Charges and you will pay this invoice within 30 days. You agree that payment under this clause is not intended to be, and will not be punitive and is intended to compensate us for reasonable losses that we will suffer resulting from the early termination of this Agreement. 14.6. Termination does not affect any accrued rights of either party. 14.7. We may immediately suspend, terminate or restrict the supply of the Service to you if: (a) we are entitled to do so under the Agreement;
(b) you breach the Agreement, and the breach is remediable and you fail to remedy the breach within 7 days of notice from us;
(c) you are in breach of our Acceptable Use Policy;
(d) we reasonably believe that you have provided us with false or misleading information;
(e) we reasonably suspect fraud or other illegal conduct by you or any other person in connection with the Service;
(f) we reasonably believe a threat to the security of the Service or to our network (or a Supplier’s network) exists and that threat is caused directly or indirectly by you;
(g) it is necessary to comply with our legal obligations;
(h) a regulatory authority instructs us to do so;
(i) you abuse, threaten, attempt to or cause harm to, Our Equipment or network infrastructure or any of the service networks;
(j) your behaviour towards us or our representatives has been verbally or physically abusive, threatening or inappropriate or amounts to bullying or harassment;
(k) you have made multiple complaints without a reasonable basis for doing so and you continue to make such complaints after we have asked you to stop;
(l) we reasonably believe you are an unacceptably high credit risk; or
(m) you resell the Service or otherwise act as a carriage service provider. 15. Notices
15.1. A notice under the Agreement shall be sent by hand delivery, post or email using the addresses specified in the Service Order, or as notified to a party from time to time. 15.2. Any notice issued by hand shall be deemed delivered upon the notice being left at the other party’s premises. 15.3. Any notice issued by post shall be deemed delivered 5 Business Days after posting if posted domestically, or 10 Business Days after posting, if posted internationally. 15.4. Any notice issued via email shall be deemed to be delivered upon the sender receiving a read receipt, delivery receipt, reply to the original email, or four hours after the email was sent (as recorded on the sender’s device) unless the sender receives an automated message that the email was not delivered or that the recipient is ‘out of office’ or equivalent. 16. Dispute Resolution
16.1. If you raise a dispute or complaint we will attempt to resolve it in accordance with our Complaint Handling Policy. 17. General
17.1. Amendment: Except as permitted under this Agreement, the Agreement may only be amended by a written document signed by both parties. 17.2. Assignment: (a) You may not assign or novate your rights or obligations under the Agreement without our prior written consent.
(b) You agree that we may assign or novate our rights and obligations under the Agreement to a Related Body Corporate or a purchaser of our business as long as it does not cause you detriment.
(c) We may subcontract any of our obligations under the Agreement. 17.3. Severability: If any provision of the Agreement is deemed invalid by a court of competent jurisdiction, the remainder of the Agreement shall remain enforceable. 17.4. Relationship: The parties are independent contracting entities and the Agreement does not create any relationship of partnership, joint venture, or employer and employee or otherwise. 17.5. Jurisdiction: The Agreement will be interpreted in accordance with the laws in force in New South Wales. The parties irrevocably submit to the non-exclusive jurisdiction of the courts situated in New South Wales. 17.6. Acceptance of Service application: Service applications are binding upon Swoop acknowledging acceptance. 17.7. Survival: Any provision of the Agreement which by its nature is intended to survive termination or expiry of the Agreement (including without limitation any exclusion or limitation of liability or indemnity in the Agreement) will survive termination or expiry of the Agreement for any reason. 17.8. Further information: Further information and advice about your rights can be obtained by contacting the Australian Communications and Media Authority, the Telecommunications Industry Ombudsman, the Australian Competition and Consumer Commission or the relevant Department of Consumer Affairs in your State or Territory. 18. Definitions and Interpretation
18.1. Unless otherwise specified in this SFOA, a Service Order, or any applicable CIS and Service Schedule, the following words have the following meanings:
Acceptable Use Policy means the Swoop document entitled “Acceptable Use Policy”, which is available from our website or on request.
Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Cth).
Business Day means any day that is not a weekend or public holiday in New South Wales or the location where the Service is being provided.
CIS means Critical Information Summary and is the document that sets out critical terms and conditions for the relevant Service.
Commencement Date means: (a) the estimated service commencement date specified in a Service Order; or
(b) where the Service is only ready for use from a later date, that later date. Charges means the charges, rates and fees that are payable by you to us under the Agreement as set out in a CIS and/or Service Order.
Complaint Handling Policy means our process for handling consumer complaints in accordance with the Telecommunications (Consumer Complaints Handling) Industry Standard 2018.
Consequential Loss mean loss of revenue, loss or reputation, loss of profits, loss of bargain, loss of actual or anticipated savings, loss of opportunities, loss of data or a special, punitive or exemplary loss or damage (including without limitation, any penalty or fine imposed).
Credit Management Policy means the policy available on our website regarding how we undertake credit management.
Customer Equipment means any and all of your equipment and tools which you use in connection with the Services, excluding Our Equipment. For the avoidance of doubt, Purchased Equipment will form part of Customer Equipment.
Documentation means any information, files, correspondence, materials or documents (whether in electronic form or not) referring to or describing Our Equipment and/or Services that we provide to you, from time to time.
Due Date means the date specified on an invoice issued by us for payment of the Charges that reflects the payment terms set out in a CIS and/or Service Order.
Force Majeure Event means any circumstances beyond our reasonable control.
GST has the meaning given in the GST Law.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Initial Term means the minimum term for a Service specified in an applicable Service Order or CIS.
Insolvency Event means, in respect of a party:
(a) the party ceases to carry on business or is unable to pay its debts as and when they fall due;
(b) a receiver or a liquidator or provisional liquidator or an administrator is appointed to the party, or an application (including voluntary application filed by that Party) is lodged or an order is made or a resolution is passed for the winding up (whether voluntary or compulsory) or reduction of capital of that party;
(c) the party enters into an arrangement with its creditors;
(d) where the party is a partnership, the partnership is dissolved or an application is made for its dissolution;
(e) the party suspends payment of its debts to the other party, or the party takes the benefit of any Law for the relief of insolvent debtors; or
(f) anything analogous or having a substantially similar effect to any of the events described in (a) through
(e) above occurs under the Law of any applicable jurisdiction.
Intellectual Property Rights or IPR means all current and future intellectual property rights, including all copyright, patents, trademarks, design rights, trade secrets, domain names, and other rights of a similar nature and all other rights to intellectual property as defined under Article 2 of the convention establishing the World Intellectual Property Organization, whether registrable, registered or not, and any applications for registration or rights to make such an application, anywhere in the World.
Network Data means any data transmitted via any Service by you or other users of the Service that you are supplied.
Network Demarcation Point is the point where our network ends and is connected to your equipment and may be defined further in an applicable CIS and/or Service Order.
Our Equipment means any of our equipment that we supply to you and includes, in connection with the Services, racks, antennas, hardware, equipment, wires, cables, switches, routers and ports.
Party means you or us (as the context dictates) and Parties means you and us.
Payment Terms means the payment terms and conditions as specified in the applicable CISs and/or Service Orders.
Personal Information means any personal information within the meaning given in section 6 of the Privacy Act 1988 (Cth) and section 187LA of the Telecommunications (Interception and Access Act) 1979 (Cth).
PPSA means the Personal Properties Securities Act 2009 (Cth).
Privacy Policy means the policy available on our website regarding how we deal with Personal Information and other privacy issues.
Purchased Equipment means equipment purchased from us, under a Service Order.
Related Body Corporate is defined in section 50 of the Corporations Act 2001 (Cth).
Renewal Term has the meaning given to it in clause 4.4.
RFS Date means the earlier of the following dates in relation to a Service:
(a) the date notified to you by us;
(b) the date which a Service is first made available to you by us; or
(c) the date which you first used the Service. Security Deposit means a security deposit amount specified in the applicable CISs and/or Service Orders or otherwise notified by us to you.
Service Order means our acceptance of your application for a Service.
Service(s) means the service(s) that we will provide to you described in the Service Schedule and a Service Order.
Service Schedule means the schedule describing the Service(s).
SFOA means this document.
Term means the Initial Term and any Renewal Terms.
Unpaid Equipment means Purchased Equipment that has not been fully paid for.
You and your means the person specified as the customer in a Service Order.
We, our and us means Cirrus Communications Pty Limited ACN 109 931 731 and any of its Related Bodies Corporate. 18.2. Interpretation. Unless the context requires otherwise:
(a) headings and underlinings are for convenience only and do not affect the construction of the Agreement;
(b) a provision of the Agreement will not be interpreted against a party because the party or the party’s legal representative prepared or was responsible for the preparation of the provision;
(c) currency or “$” refers to Australian dollars;
(d) a reference to a statute or regulation includes amendments and replacements;
(e) a reference to a clause, subclause or paragraph is a reference to a clause, subclause or paragraph of the Agreement and a reference to a subclause or paragraph is a reference to the subclause or paragraph in the clause in which the reference is made;
(f) a reference to time is to time in New South Wales;
(g) if an obligation must be performed by two or more persons, it binds them jointly and individually;
(h) a reference to a person includes a reference to an individual, a partnership, a company, a joint venture, government body, government department, and any other legal entity; and
(i) the words “includes”, “including” and similar expressions are not words of limitation and shall be interpreted as if the words “but not limited to” followed them.