NETBAY INTERNET Broadband ADSL Terms and Conditions

Definitions

‘Netbay Internet’ is Netbay Internet Pty Ltd (A.C.N. 093 981 321 A.B.N 20 093 981 321), trading as ‘Netbay Internet’. ‘Customer’ means the Account Holder i.e. the person named in Section A (Customer Details) of the Service Application Form (SAF). ‘Dealer’, ‘Reseller’ or ‘Partner’ refers to a third party who resells Netbay Internet broadband services to the Customer on behalf of Netbay Internet. ‘Wholesaler’ refers to a third party who is reselling the Netbay Internet broadband service, but brands it as their own broadband internet product. ‘Service’ refers to the internet broadband plan and contract term selected in the SAF. ‘Service Application Form’ (or SAF) refers to the Service Application Form which was filled up upon application. ‘Activation date’ refers to the date when the Customer is notified about activation of broadband internet service on the nominated telephone line on Section B of the SAF. Notification from Netbay Internet is made via writing, e-mail or phone.

Agreement

This agreement constitutes the full and entire understanding and agreement between the Customer and Netbay Internet in regards to the supply of the Service. The Service is provided on the assumption that the Customer has read and fully understands this Agreement, and that all information provided by the Customer at the point of application is true and correct.

1. Provision of Service and Availability

A. Netbay Internet shall provide the Customer with the Service twenty-four (24) hours a day, every day of the year. However, there may be downtimes due to various reasons, including but not limited to, network hardware and/or software upgrade and maintenance windows, relocation of Netbay Internet’s operational premises or server dysfunction. Netbay Internet shall give the Customer adequate notice of all scheduled downtime. Netbay Internet will in good faith, try to minimize such mentioned downtimes, but do not make guarantees. The Customer acknowledges that Netbay Internet cannot guarantee uninterrupted service, speed, performance or quality of the Service due to reliance on third-party carrier infrastructure. The Customer acknowledges that Netbay Internet cannot guarantee uninterrupted service, speed, performance or quality of the Service due to reliance on third-party carrier infrastructure. The Customer further acknowledges that the Service is not fault free and there may be interruptions and/or access problems from time to time. Netbay Internet depends on the performance of third parties over which Netbay Internet has no control and therefore can accept no liability for problems that may arise from the service. In order to optimise network performance, Netbay Internet reserves the right to limit the Service’s performance from time to time. B. Netbay Internet will provide the Customer with a Log-In ID, a password and all other associated information needed to enable connection to the Service. C. The Customer shall not in any way, make known his or her password to others. Misuse of the Customer’s account is the Customer’s responsibility and charges will be incurred for all use until made known to Netbay Internet. D. The Customer shall provide his or her own equipment and, to a degree, software in order to access this Service. This includes a telephone line, a modem, computer and any other software/hardware as needed. Any carrier-related costs incurred are the sole responsibilities of the Customer. E. Service provisioning takes approximately 5 to 10 working days after Telstra PSTN activated and registered. Our support guys monitor the status of the order on a daily basis, and will inform customer soon as the order has been completed. F. This Service must not be used for any illegal or fraudulent activities, including those prohibited under the Australian Government Telecommunications Act or under any other Australian State and Commonwealth laws. G. It is the Customer’s responsibility to familiarize themselves with Internet etiquette. This Service will also not be used for any purposes which may be disruptive of network resources, including but not limited to spam in the form of mass posting of messages to newsgroups, advertising mail and chain letters, or sending threatening, fraudulent or unwanted messages over electronic mail. H. The Customer shall not hold Netbay Internet liable for any damages or losses arising from network downtime or from any other form related to the use of this Service. The use of this Service is at the Customer’s own risk and Netbay Internet shall not be held responsible in any way for the content accessed from, and the conduct of other users on the Internet. I. The Customer agrees and understands that in some cases it may not be possible to provide the Service and in such an event both parties will be released from their obligations under this Agreement and Netbay Internet will have no liability to the Customer. J. The Customer accepts that some services offered by third party carrier networks are incompatible with the Service and may not be available to the Customer after connection of the Service. K. The Service may only be used at the physical address specified by the Customer in Section B of the SAF. L. The Customer must not resell in part or whole of the Service to any person unless approved as a Dealer, Reseller or Wholesaler. If in the event Netbay Internet discovers this condition being breached, we reserve the right to immediately terminate the contract and all cancellation fees will apply. Until these fees have been paid in full, Netbay Internet also reserves the right to not release the provisioned phone number to any other Internet Service Provider. M. The Customer agrees not to make any claim against Netbay Internet, its suppliers, employees or contractors for any loss, damages or expenses relating to, or arising from, this Agreement or the use of all Service. N. The Customer uses the Service at the Customer’s own risk, and Netbay Internet takes no responsibility for any data downloaded and/or the content stored on the Customer’s computer.

2. Account Payments and Fees

A. Payment to Netbay Internet for provision of the Service may be made via credit card, money orders, cheques or cash payment at Netbay Internet’s office premises. B. For payment via direct debit (credit card or bank account), payment will be debited on the last day of each accounting period. The amount debited consists of two parts: I. Prepayment for the next period II. Excess time or data usage from the previous month. C. For payment via cash or cheque, an invoice will be mailed on the first (1st) of the month with details of the outstanding amount. The invoiced amount also consists of the above two components plus an invoice-processing fee of $3.30 excluding GST. D. If Netbay Internet cannot debit a credit card for any reason, Netbay Internet will immediately disable the account until the matter is resolved. D. A dishonor fee of $3.30 will be charged to customers whose payments were defaulted due to a declined credit card transaction and/or insufficient funds on direct debit. Should an account be suspended due to late payment, a penalty fee of $16.50 shall be applied to the amount outstanding. These fees are inclusive of GST. E. Payment terms are strictly seven (7) days. If Netbay Internet does not receive a payment within seven (7) days of issuing an invoice, the Service will be disabled until the matter is resolved. F. Should a cheque be invalid for any reason, the Customer will incur a penalty charge of an additional $10 with his or her next invoice. These fees are exclusive of GST. G. Customers are liable for all billable months even if the service is not utilised during these periods. The only exception is if a customer has given notification on termination of service. H. Netbay is not responsible for disconnection of ADSL due to Third Party servicing. The reasons included: Unpaid telephone bills, Change of account holder on the telephone line, telephone line moved to another address despite keeping the number, Change of telephone number, Change of Telephone carrier. If the ADSL connection code is wiped out by the telephone provider, a reconnection fee of $99 will be charged to the customer. I. For Customers on the Unlimited Yearly Plan, in the event of Account termination the customer remains liable for all charges until the end of the pre-paid period. No refunds will be granted for any unused Internet airtime. J. In the event of Account termination, the customer remains liable for all charges until the end of the pre-paid period. No refunds will be granted for any unused Internet airtime (refer to subsequent clauses for exceptions). The Customer is required to pay all outstanding charges incurred until the date of the termination. K. Access fees are charged in advance and are subject to a pro rata calculation in your first and last month of activation. The access fee applies regardless of whether the service is used or not. L. The Customer is liable for all data charges relating to the account. Misuse of the Customer.s account, whether through malicious intent, deliberate action or negligence, is the Customer’s responsibility and charges will be incurred for all use until made known to Netbay Internet. M. In the event that a customer wishes to cancel their account during the initial contract period, a cancellation fee of $150 will be charged to the customer. In addition to this, the customer will be liable for the total of all monthly fees remaining on the contract. In the event of non-payment of the cancellation fee, Netbay Internet reserves the right to not release the provisioned phone number to another Internet Service Provider. Customers are liable for all billable months even if they cease to utilise the service during these periods. The only exception is if a customer has sent given notice on service termination. N. There can be no suspension of the Service for any period of time. O. For Customers on the Special XDSL 1.5-10 (no connection fee paid), a cancellation fee of $150 will be charged when the account is requested to be cancelled. P. For Customers on the ADSL2+ Unlimted bundle $68, Netbay Internet is not responsible for the provisioning, set up and connection cost incurred for the PSTN service. Provisioning, set up and connection cost should refer to Telstra home page for detailed information. PSTN service is subject to Telstra availability. Q. ADSL2+ Unlimted bundle $68 plan consists of $45 Unlimited ADSL2+ Internet cost plus Telstra home budget line rental cost. Telstra home budget line rental plan and PSTN call charges cost billed by Telstra to the end customer directly. R. In the event of the Customer wishing to relocate his broadband connection to a physical location different from the location the service was originally provisioned at, a fee of $99 will be applied. Note that the fee is imposed from Telstra to Netbay Internet, which is passed on to the Customer. S. Speed upgrades or downgrades on the Customer’s service will either incur a one-time speed change fee of $99 or an 18 month contract. T. Plan and speed downgrades are available only when a customer is not in a contract. U. In the event of the Service requiring an on-site visit by an upstream technician for fault resolution, a fee of $220 will be charged upfront, which is refunded if the fault is not found to be with the customer’s equipment and/or phone service.

3. Account and Service Termination

A. The basic assumption is that the Customer wishes to continue with the Service unless notice is given to Netbay Internet. Termination of the Service is done by giving written notice thirty (30) days before the next billing date. The written notice (delivered via e-mail, mail or fax) should request account termination, with inclusion of the Log-In ID and password for verification. Cancellations over the phone are not acceptable. B. Netbay Internet requires a minimum of thirty (30) day notice before the next billing period (i.e. end of month). Once the Company receives a valid request, it will acknowledge and confirm receipt of termination requests by e-mail within forty-eight (48) hours. The account will remain open and available for use until the end of the current billing month. Account charging will cease from the first day of the next billing month, with no refunds available. C. Netbay Internet may terminate this Agreement immediately if: 1. Customer has breached any provision of this Agreement; 2. Customer has at any time provided any false or incomplete information to Netbay Internet; 3. in the opinion of Netbay Internet or any regulatory authority, it is not in the public interest to continue providing the Service to the Customer; 4. (where Customer is an individual) if Customer dies or is declared a bankrupt; or 5. (where Customer is a corporation) if Customer becomes insolvent, subject to administration or receivership or ceases to carry on business or is subject to anything having a similar effect. D. Netbay Internet reserves the right to delete the Customer’s personal files and email at any time after suspension or termination. E. Upon termination of the Service, the Customer’s right to use the Service ceases immediately and Netbay Internet will not be liable for any loss or damages suffered by the Customer. The Customer will be liable for any outstanding monies owing on the account and payment of their current agreement period. F. The Customer may cancel the service in the period after submission of the SAF, before the service has been activated by Netbay Internet. Written notice must be received by Netbay Internet before activation of service. In the event of cancellation within the provisioning term, the Customer is to bear charges for the full set up fee and hardware purchases (if any). The Customer will also be liable for the full contract if no alternative arrangement is made with the billing department. G. Netbay Internet reserves full rights to terminate this Service at any time. Under such circumstances, outstanding amounts owed by Netbay Internet to the Customer in the form of unused hours, will not be reimbursed to the Customer. The Customer fully and wholly forfeits all outstanding amounts. H. Should the Customer want to downgrade from ADSL2+ to ADSL1 (also known as XDSL), the Customer is required to have had the ADSL2+ service active for six(6) months minimum, and an early termination fee of $150 before the downgrade will be processed. I. The Customer is required to return the limited offer Linksys SPA 3102 VOIP voicebox upon service termination. Equipment damage or failure to return the hardware will result in a penalty fee of $80 being charged to the Customer. J. In the event of cancellation for Customers on the ADSL2+ unlimted bundle $68, Netbay Internet is not responsible for any cancellation or termination cost incurred for the PSTN service. K. For Customers on the ADSL2+ unlimted bundle $68, Netbay Internet will not hold any responsibilities for termination of PSTN service if ADSL2+ became unavailable upon completion of Telstra PSTN service. L. Customer agreed and accepted 10 days cooling off period will not be applied in this agreement. M. For Customers on any ADSL or ADSL2+ plans with 24 months contract, the free modem router offered to customer would remains as Netbay Internet’s property until 24 months contract expired. Netbay Internet reserve the rights to collect the modem router from customer if early termination of 24 months contract.

4. Credit Information

A. You agree and authorise us to use and exchange your credit information before, during and after the provision of credit to you with any of our agents and credit reporting agency (for all or any of the following purposes; assessing your application for credit worthiness, to notify of a default by you, allowing a credit reporting agency to create and maintain a credit information file about you), credit providers, carriers, carriage service providers, in accordance with the Privacy Act 1988 for the following: I. Considering or applying our credit policy to your application; II. Ongoing credit management of your account (s) with us, including your overdue payments; III. Ongoing maintenance of credit records about you; IV. Any purpose permitted under the Telecommunications Act 1997. B. You agree that credit information referred to in clause 5.a includes: I. Personal identifying details such as name, addresses, date of birth, employers, drivers license, and or other photo identification numbers; II. Details and status of any of your accounts with us or our related bodies corporate; III. Your credit history, including credit defaults, dishonoured cheques or credit infringements; IV. Information about your credit worthiness. C. Where you are in default of payment to us, you agree that we, or our agent, may utilise any information collected and recorded by us in relation to your account to assist us, and our related bodies, in the process of debt recovery. D. Where your account is overdue, you agree that we may refer you to an external debt collection agency for the process of debt recovery. Important Notice to Applicant(s) for Credit (Section 18(E)(1) Privacy Act 1988) Notice of disclosure of your credit information to a credit reporting agency. (Privacy Act 1988) A. Netbay Internet may give information about you to a credit reporting agency, for the following purposes: 1. To obtain a consumer credit report about you, and/or 2. To allow the credit reporting agency to create or maintain a credit 3. Information file containing information about you. Exchange of Credit Worthiness Information (Section 18N, Privacy Act 1988) A. I/we agree that [Netbay Internet] may exchange information with those credit providers named in this application or named in a consumer credit report issued by a credit reporting agency for the following purposes; 1. To assess as application by me/us for credit 2. To notify other credit providers of a default by me/us 3. To exchange information with other credit providers as to the status of 4. This loan where I am in default with other credit providers 5. To assess my/our credit worthiness. I/we understand that the information exchanged can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.

5. Support of Service

A. If the Customer experiences a problem with the Service, the Customer should report it to Netbay Internet’s technical support team. B. Netbay Internet will use reasonable efforts to rectify the problem as soon as possible. If the Customer reports a fault and Netbay Internet finds there is no fault or Netbay Internet did not cause the fault, Netbay Internet may charge the Customer for any work Netbay Internet has performed on fault-finding and/or resolution. The cost(s) involved will be charged on a case-by-case basis. C. Netbay Internet is not responsible for software or hardware not distributed, approved or recognised by Netbay Internet including software downloaded from the Internet and hardware bought from suppliers other than Netbay Internet directly. Netbay Internet is not responsible for any potential usability issues that occur in the network within the Customer’s premises. D. Netbay Internet may access the Customer’s content and other parts of the service as necessary to identify or resolve technical problems or to respond to service complaints. Netbay Internet may, but is not obligated to, provide the Customer with on site technical support, or return to base support. This may be a charged service with separate terms and conditions.

Miscellaneous

If the Customer acquires the Netbay Internet Service by signing an agreement provided to the Customer by an Netbay Internet Dealer, the Customer acknowledges that the Dealer is acting as Netbay Internet agent only for the purposes of receiving this agreement from the Customer and providing it to Netbay Internet. The Dealer is not a Netbay Internet agent for any other purposes or in any other capacity and the Service is not provided by the Dealer. The Customer acknowledges that the Netbay Internet Dealer is not the Customer’s agent.

Conclusion

Netbay Internet retains complete discretion in assessing whether Customer has breached any service obligations under this document. Netbay Internet may suspend or terminate the Service if the Customer is found in breach of any of these terms and conditions. Netbay Internet reserve the right to make changes to the terms and conditions at any time. We will endeavour to inform our customers of any changes or modifications to these Terms by post or e-mail. It is the Customer’s responsibility to check for changes on the Terms and Conditions on a regular basis on the Netbay Internet web site.