6. Your Use of the Services
8. Credit Checks
9. Warranties, Limitation Of Liability and Indemnity
10. Term and Termination, Suspension and Restriction
"Acceptable Use Policy" means the document of that or similar name, as amended from time to time, posted on our website, which imposes limits on use of the Services, including for network integrity, commercial, operational or legal reasons.
"Account ID" means an identifier of you as a customer having the right to use the Services.
“Agreement” (and “this Agreement”) has the meaning stated in clause 2.1.
"Application" means a request by you to us to provide Services, made orally, in writing or electronically.
"Commencement Date" means the date on which we commence providing you with the Services.
‘Consumer Contracts Code’ means ACIF Code C620:2005 Consumer Contracts or any amended or replacement version of it.
‘Fixed Term Agreement’ means an Agreement with a fixed or minimum term of more than a month, but only for the period of the fixed or minimum term.
"Services" means the Internet access and other services requested by you which we agree to provide to you.
“Spamming” or “Spam” means unsolicited electronic messages which are prohibited by law or which, in our opinion, having regard to prevailing industry practices constitute an unacceptable use of the Services.
"Supplier" means a supplier of telecommunications services or other Internet services to us.
"Us", "We" or "Our" includes our servants, agents, employees, licensees, franchisees, successors, substitutes or permitted assigns.
“You" means the customer.
2.1. We will provide you with the Services on these terms and conditions and on the terms and charges applicable to the plan selected by you and on any terms in your Application (which together constitute the “Agreement”).
2.2. We have the right to refuse any Application. An Account ID will be allocated to you after we approve your Application and you pay any initial charges. We will then commence providing the Services to you as soon as possible.
3.1. Subject to any agreement to the contrary, you are required to pay any charges by the due date (for initial charges with the Application or within the specified time of making the Application and for other charges 14 days after the date of the invoice or otherwise as specified in the invoice). Invoices will be rendered at monthly intervals unless the plan you have chosen specifies otherwise or unless we notify of any change. Invoices, unless agreed otherwise will be sent via electronic means and the onus is on you to ensure that you can retrieve and read these electronic invoices in a timely manner.
3.2. You will pay us the charges for the Services by way of credit card, bpay, direct debit, cash or cheque or such other method of payment as is reasonably specified by us. In the case of direct debit or credit card payment, you authorise us to debit your account with the appropriate amount of each invoice.
3.3. Interest may be charged by us on any amount you owe us which is not paid by the due date, at the rate specified under the Victorian Penalty Interest Rates Act.
3.4. We may also charge you an amount not exceeding $20.00 for our additional administration costs if you do not pay an invoice within 14 days after the due date.
3.5. We may require you to pay a security deposit if we have reasonable grounds to believe you may be a credit risk in accordance with the Consumer Contracts Code.
3.6. We may impose or vary a charge for a matter ancillary to the supply of a Service (such as a billing fee or credit card transaction fee) but will either offer You a reasonable alternative at no additional charge or give You the right to terminate the Agreement without incurring charges other than usage or network access charges incurred up to the date of termination.
4.1. We may on reasonable notice unilaterally vary the terms of this Agreement, including charges but, during a Fixed Term Agreement, will do so only (except as provided in the following sub-clauses of this clause) if we:
4.2. give at least 21 days prior written notice of the variation; and
4.3. under the notice give you the right to terminate this Agreement within 42 days without incurring charges, other than usage or network access charges incurred prior to termination and any outstanding charges covering installation costs or equipment (if such equipment can be used in connection with services provided by other suppliers).
4.4. We may impose or vary a charge where the charge is a tax imposed by law.
4.5. We may impose or vary a charge for a matter ancillary to the supply of a Service (such as a billing fee or credit card transaction fee) but will offer you a reasonable alternative at no additional charge or give you the right to terminate this Agreement without incurring charges other than usage or network access charges incurred up to the date of termination.
4.6. If we acquire a carriage service from a Supplier (other than a related body corporate of Hotkey) for the purpose of resale to you, we may vary this present Agreement if:
4.7. the variation results from an amendment to the carriage service supply contract with the Supplier; and
4.8. prior to the date of the variation, we give notice to you explaining the variation and its effect and offering you the right to terminate this Agreement within 42 days of the date of the notice without incurring charges other than usage or network access charges incurred up to the date of termination and any outstanding charges that cover installation costs or equipment (where such equipment can be used in connection with services provided by other suppliers); and
4.9. We may make changes to the characteristics, including charges, of Services provided under a Fixed Term Agreement, if the changes are likely to benefit you or have a neutral or minor detrimental impact on you. Where you demonstrate to us that such a change has had more than a minor detrimental impact on you, we will offer you the right to terminate this Agreement, without incurring charges, other than charges for usage or network access (incurred up to the date of termination) and other than outstanding charges to cover installation costs or equipment (where such equipment can be used in connection with services provided by other suppliers).
4.10. We may vary charges for a content service or premium service provided by a Supplier if the variation results from an increase in price by the Supplier, subject to:
4.11. use within a reasonable period giving reasonable notice of the increase to you (if you have used that Service within the previous 6 months); and
4.12. you having the right to elect not to use that Service, without attracting any additional charge.
5.1. This Agreement commences on the Commencement Date and will remain in force until it is terminated.
6. Your Use of the Services
6.1. You agree to comply with the Acceptable Use Policy (which we agree will at all times comply with the Consumer Contracts Code).
6.2. You agree, not in relation to the Services, to do anything that would contravene any Australian or other laws, including without limit those relating to production, copying, publicationor distribution of pornographic, stolen, offensive or copyright material.
6.3. You agree, not in relation to the Services, to do anything which may expose us or our Supplier to any civil or criminal liability.
6.4. You agree not to duplicate or allow any other person to use any end user software provided by us to you.
6.5. You are responsible for your security in relation to the Services, including without limit obtaining and using appropriate anti virus, anti Spam and firewall software and systems, protection of your Account ID and pass word and backing up your data.
6.6. You should report to us immediately if you become aware that the security of your Account ID or password has been compromised or if you become aware of any misuse by any person of Services provided by us.
6.7. You will not send Spam.
6.8. You will not resell the Service.
6.9. You are responsible for the installation and use of telephone lines and all other equipment needed to access the Service and to ensure the cost of each call to the Service is appropriate to the service you require.
6.10 You will ensure that each user of your account complies with the obligations imposed on you by this Agreement.
6.11. If you require a domain name, you warrant that the information provided to us when ordering your domain name is true and correct and you indemnify us against any loss, which we may incur as a result of you breaching this warranty.
6.12. You must not connect a sub-network to the Internet, unless we expressly allow otherwise in writing.
6.13. You agree to take full responsibility for the settings of certain software on your own computer systems, which may be used to connect to the Internet. In particular, where they are set to automatically re-dial when disconnected, all costs will be borne by you for charges, which may be incurred through your telephony provider. You understand that disconnections may be caused by a number of system failures which will result in automatic redial if the software is set up in that manner.
6.14. You will not, in relation to the Services, use any equipment or software which may cause danger or interference or which does not meet standards reasonably imposed by us or any Supplier.
6.15. You acknowledge that your obligations under this clause 6 are given for our benefit and where reasonably applicable also of any affected Supplier.
7.1. If the supply of the Services also includes equipment or other goods, it is agreed that risk in those goods will pass to you when they are received by you, but title will not pass to you until you have paid for them in full.
8. Credit Checks
8.1. You authorise us to conduct credit checks and searches and to use that information to assess credit worthiness. We may give to a credit reporting agency the following information: identity particulars (as permitted by the Privacy Commissioner’s determination); the fact that you have applied for credit and the amount; the fact that we are a current credit provider to you; payments which become overdue more than 60 days and for which collection action has commenced; advice that payments are no longer overdue; cheques drawn by you which have been dishonoured more than once; in specified circumstances, that in our opinion, you have committed a serious credit infringement; that the credit provided to you by us has been paid or otherwise discharged.
8.2. We may give to or seek from any credit provider named in a credit report issued by a credit reporting agency information about your arrangements. You understand that this information can include any information about your credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other (Section 18N(1)(b) Privacy Act). You understand the information may be used for the following purposes: to assess an application for you for credit; to notify other credit providers of a default by you; to exchange information with other credit providers as to the status of this credit where you are in default; to assess your credit worthiness.
8.3. If we consider it relevant to assess your application for personal credit, You agree that we may: obtain a report about your commercial activities or commercial credit worthiness from a business which provides information about the commercial credit worthiness of persons; obtain from a credit reporting agency a credit report containing personal credit information about you in relation to commercial credit provided by us; receive from a credit reporting agency a credit report containing personal information about you in relation to collecting overdue payments.
9. Warranties, Limitation Of Liability and Indemnity
9.1. We acknowledge that the Commonwealth Trade Practices Act and Fair Trading legislation of the various states and similar legislation (“Consumer Legislation”) may imply into this Agreement certain conditions and warranties that cannot lawfully be excluded, restricted or modified (“Statutory Warranties”).
9.2. Subject to the Statutory Warranties and to any other warranties given specifically, because of the nature of telecommunications, we are not able to and do not give an implied warranty that any Service will be continuous or fault free or that any Service is suitable for or is supplied for an application that needs continuous fault free service, but we will use reasonable endeavours to reduce faults and to restore faulty services within a reasonable time.
9.3. Without limiting your rights under any other agreement or otherwise arising as a matter of law, you acknowledge that this Agreement does not give you any rights against any Supplier.
9.4. This sub-clause does not apply if the Services are supplied to you as a “consumer” under applicable Consumer Legislation or as a “Consumer” as defined in the Consumer Contracts Code. If this sub-clause does apply, then to the extent permitted by law, our liability to you excludes liability for any indirect, secondary or consequential loss or damage or for loss of income, profits or anticipated savings or loss of opportunity, and is limited at our option, as follows:
9.5. if the claim by you relates to goods, it is limited to repair or replacement of the goods or payment of the cost of having the goods replaced; and
9.6. if the claim relates to services, it is limited to supplying the services again or payment of the cost of having the services supplied again.
9.7. You indemnify us, and where applicable each Supplier, against any loss, damage or expense in relation to or arising out of or in connection with a breach by you of any of your obligations under this Agreement or the misuse by you or any other person of a Service.
10. Term and Termination, Suspension and Restriction
10.1. You may terminate this Agreement on giving to us 30 days notice in writing. If you terminate during a Fixed Term Agreement, we may if applicable require you to pay a fee or charge for breach of this Agreement (which will not exceed a genuine estimate of the loss suffered or likely to be suffered by us).
10.2. Other than during a Fixed Term Agreement, we may terminate this Agreement or any Service without cause on giving to you 30 days notice (and in such case will either refund unexpired prepaid credits or, if you agree, apply those credits for use on another Service).
10.3. We may suspend any or all Services for reasonable periods for maintenance, repair or similar operational reasons.
10.4. We may suspend or restrict any or all Services if there are reasonable grounds for believing a threat or risk exists to the security of any Service or the integrity of the network or that the provision of the Service may cause death, personal injury or damage to property.
10.5. We may suspend or restrict any or all Services in cases of emergency, including for the provision of support to emergency and other essential services.
10.6. We may terminate this Agreement or any Service or suspend or restrict or vary or intercept any or all Services to the extent required in order to comply with legislative or regulatory requirements or the order of a court or lawful direction of a competent authority.
10.7. We may terminate this Agreement or any Service if you are in material breach (which without limit includes your failure to perform or comply with important contractual obligations)
10.8. Without limiting its rights under the previous sub clause, we may terminate this Agreement or any Service or suspend or restrict any or all Service, in accordance with ACIF C541:2003 Credit Management Industry Code, for your non-payment of charges by the due date
10.9. We may, if you die or become bankrupt, insolvent or subject to a winding-up order or similar insolvency event and if we reasonably believe that we are unlikely to receive or retain charges, terminate this Agreement or any Service or suspend or restrict any or all Services.
10.10. We may suspend any or all Services if we have reasonable grounds for suspecting fraud or other illegal conduct in relation to the Services by you or any other person using the Services.
10.11. We may terminate this Agreement or any Service if we have evidence to suggest fraud or other illegal conduct in relation to the Services by you or any other person using the Services.
10.12. We may suspend or restrict any or all Services if we have reasonable grounds for believing you represent a credit risk in relation to the Services, providing that we have taken reasonable steps to give notice of the suspension or restriction.
10.13. We may suspend, restrict or terminate, where appropriate, a Service, or this Agreement in accordance with an Acceptable Use Policy, provided that the relevant terms of the Acceptable Use Policy comply with the Consumer Contracts Code.
10.14. You will remain liable for Charges for a period during which a Service is suspended or restricted:
10.15. at your request;
10.16. for your material breach;
10.17. for a system or network outage that results in a Service being inaccessible for an insignificant period; or
10.18. because we have reasonable grounds to believe that you represent a credit risk in relation to the Services.
10.19. When this Agreement or a Service is terminated:
10.20. we may invoice any accrued charges for each applicable Service, including any incurred after termination;
10.21. you must pay all Charges when they are due;
10.22. we are entitled to recover any equipment belonging to us.
10.23. After this Agreement ends:
10.24. any right of action that arose before it ended survives;
10.25. any provision that is expressly or by reasonable implication intended to survive termination continues to operate.
10.26. Notice given by you to terminate this Agreement must be in writing and sent by mail or delivered to:
Hotkey Internet Services Pty Ltd
PO Box 631
Collins Street West, VIC, 8007
or sent by email to:
11.1. Any notice under this Agreement may be given by us to you by hand delivery, post, facsimile or electronic mail at the latest addresses known to us. A notices is deemed to have been duly given (i) when delivered, if sent by hand or (ii) the business day following posting, if sent by post or (iii) the business day following the date of transmission, if sent by facsimile or (iv) the business day following the date of transmission, if sent by electronic mail. Without limit, you specifically consent to our sending notices to you by email at your Hotkey email address.
11.2. A party to this Agreement is not liable for any delay or failure to perform obligations, except the obligation to pay any moneys validly owing, if that failure or delay is due to any cause beyond the reasonable control of that party.
11.3. The failure or delay by a party in enforcing any right under this Agreement is not a waiver of that right.
11.4. We will, when we are enforcing or have enforced a right under this Agreement, state in reasonable detail, the relevant act, omission, condition, event or legislation (as the case may be) which affords us the right to do so.
11.5. Subject to the Consumer Legislation if it is applicable, this Agreement contains the whole agreement between the parties to the exclusion of any prior or collateral agreement or understanding relating to the Services.
11.6. This Agreement is subject, on a non-exclusive basis, to the laws of the State or Territory of Australia in which you ordinarily reside and to the jurisdiction of the courts of that State or Territory.
11.7. You will not transfer or assign any rights under this Agreement without our consent in writing. We will not unreasonably refuse to consent, or at our option to enter into a new contract with the prospective new customer, providing that you are not then in breach and that the prospective new customer meets our requirements for new customers.
11.8. We may assign or novate all or any of its rights under this Agreement in connection with securing borrowings or other obligations or the sale, transfer or restructure of its business. We are not required to give notice in advance to you, but you will not be affected by the assignment until we do give notice.
11.9. Hotkey customer assistance: telephone 1300 655 366.
11.10. Hearing impairment assistance: National Relay Service telephone 133 677.
11.11. Language assistance: Translating & Interpreting Service (TIS) telephone 13 1450.