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CHARIOT PTY LTD ABN 31 088 377 860 Internet Service Terms and Conditions INTRODUCTION A If Chariot accepts your Application (as evidenced by verbal or written confirmation to you or the provision of the Service to you) then this Agreement is made between you and Chariot on that date. B This Agreement sets out the terms and conditions on which Chariot agrees to provide the Service to you and you agree to accept the Service from Chariot. INTERPRETATION 1. In this Agreement: 1.1. "Acceptable Use Policy" means the conditions of use applicable to the Service as published by Chariot on Chariot's web site and as amended from time to time, such conditions at the date of this Agreement being set out in the Schedule to this Agreement; 1.2. "Access Period" means: 1.2.1. the period specified in the Application in relation to the provision of the Service and commencing on the Access Date ("the Initial Access Period"); and thereafter 1.2.2. a further period of the same duration as the Initial Access Period commencing on the day after termination of the immediately preceding period UNLESS this Agreement is terminated during the period referred to in sub-clause 1.2.2 by either party pursuant to clause 18 in which case it is the period commencing on the relevant anniversary and expiring on the date on which notice of termination is received by the other party; 1.3. "Access Date" means the first date on which Chariot makes the Service available for use by you (even if you do not or cannot use the Service until sometime after that date); 1.4. "Account" means, depending on the context: 1.4.1. any equipment, hardware and software (or any combination thereof) the use of which is made available to you by or through Chariot and through which you access the Service; or 1.4.2. access to the Service provided to you by virtue of this Agreement or both; 1.5. "Application" means the application made by you to Chariot in the form prescribed from time to time by Chariot for provision of the Service therein specified and on these terms and conditions; 1.6. "ATA" means a device called an analogue telephone adapter or a phone adapter, which may or may not be integrated into an ADSL modem or ADSL modem/router, is used to connect one or more standard analog telephones to a VoIP based network; 1.7. "Business Day" means a day on which trading banks are open for business in Adelaide, South Australia; 1.8. "Call Types" means any of the following types of call: 1.8.1. fixed to mobile calls made to digital or CDMA mobile numbers beginning with '04' (or any other number allocated from time to time); 1.8.2. international calls made to numbers with a prefix of '0011 + country code'; or 1.8.3. national long distance calls made to any number within Australia with an Australian area code that is not in your local call charging zone; 1.9. "Charges" means: 1.9.1. the charges specified in your Application for provision of the Service selected by you and thereafter as amended from time to time by Chariot pursuant to this Agreement and includes any pre-payment thereof; and 1.9.2. where your Service includes Preselection and you make a call using Chariot's override code to a local number - the amount of $0.10 per minute for each such call; 1.10. "Chariot" means CHARIOT PTY LTD ABN 31 088 377 860; 1.11. "Claim" means, in relation to any person, a claim, action, proceeding, damage, loss, cost, expense or liability incurred by or to or made or recovered by or against that person, however arising and whether present, unascertained, immediate, future or contingent; 1.12. "Confidential Information" means any information provided by Chariot whether directly or indirectly to you and whether provided orally, or in electronic or written form; 1.13. "the Corporations Act" means the Corporations Act 2001 (Cth); 1.14. "Creditworthiness Information" means, but is not limited to: 1.14.1. your credit rating; 1.14.2. if your accounts are audited, a copy of your most recent audited Financial Report; 1.14.3. a copy of your audited or unaudited Financial Report which relates to the period since the end of the period to which the Financial Report referred to clause 1.14.2 relates; 1.14.4. if your accounts are unaudited, a copy of your most recent Financial Statements (together with any notes attached to or intended to be read with those Statements); 1.14.5. a letter, signed by the company secretary or duly authorised officer of you, stating that you are not insolvent and not under any external administration (as defined in the Corporations Act) or under any similar form of administration under any laws applicable to it in any jurisdiction; 1.14.6. a declaration of solvency (in the form prescribed by law for the purposes of a voluntary winding up) from your directors approved at a valid meeting of your directors; 1.14.7. a credit report in respect of you or any of your officers from any credit reporting agency, credit provider or other independent party; and 1.14.8. any other information reasonably required by Chariot; 1.15. "DSL" includes: 1.15.1. asymmetrical digital subscriber line (ADSL); and 1.15.2. symmetrical digital subscriber line (SDSL); 1.16. "Equipment" means any hardware and software (or either) supplied or sold to you by Chariot including: 1.16.1. DSL modems and line filtering equipment; and 1.16.2. in relation to Wireless Broadband: 1.16.2.1. a facia mounted pole; 1.16.2.2. an aerial; 1.16.2.3. a subscriber module; 1.16.2.4. internal wiring to a single point; and 1.16.2.5. power supply; 1.16.3. in relation to VoIP: 1.16.3.1. a Softphone; or 1.16.3.2. an ATA; 1.17. "Financial Report" means a report comprised of the documents specified in section 295(1) of the Corporations Act; 1.18. "Financial Statements" means the statements specified in section 295(2) of the Corporations Act; 1.19. "GST" means tax levied under the GST Act; 1.20. "GST Act" means A New Tax System (Goods and Services Tax) Act 1999 (Cth); 1.21. "Intellectual Property Rights" means all rights in relation to patents, copyright, registered designs, registered and unregistered trade marks, trade secrets, know-how and confidential information and all other intellectual property as defined in article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967, including any right to register those rights, whether created before or after the date of this agreement, whether existing in Australia or any other country and in all cases for the duration of those rights; 1.22. "Internet" means the international network of data networks utilising the TCP/IP protocol suite (or any improvement, substitute or replacement thereof) of which the Chariot network forms part; 1.23. "the Initial Access Period" means the period referred to in sub-clause 1.2.1; 1.24. "Preselection" means the allocation by Chariot from time to time and at its discretion of a telephone service provider to provide you with the Call Types unless the override code of another service provider is used to prefix your call; 1.25. "the Privacy Act" means the Privacy Act 1988 (Cth); 1.26. "PSTN" means public switched telephone network; 1.27. "Security" means an unconditional bank guarantee in favour of Chariot from an Australian licensed bank, payable in Australian dollars, on demand or other security as agreed between the parties in a form approved by Chariot and includes any increase to existing security; 1.28. "the Service" means the provision to you of: 1.28.1. a dial up, DSL, Wireless Broadband or VoIP connection (or any combination of those connections) to Chariot's connection to the Internet; 1.28.2. Preselection to supply: 1.28.2.1. fixed to mobile; 1.28.2.2. international; and 1.28.2.3. national long distance (or any of them) phone calls on fixed telephone lines in Australia; or 1.28.3. any other service specified from time to time in an Application as specified by you in your Application and the provision of e-mail facilities; 1.29. "Softphone" means software for making telephone calls using a general purpose computer in conjunction with a headset, rather than dedicated hardware; 1.30. "Spam" includes one or more unsolicited commercial electronic messages with an Australian link for purposes of the Spam Act, and derivations of the word "Spam" have corresponding meanings; 1.31. "the Spam Act" means the Spam Act 2003 (Cth); 1.32. "the Spam Regulations" means the Spam Regulations 2004 (Cth); 1.33. "Supply" means what it means under the GST Act; 1.34. "Taxable Supply" means what it means under the GST Act; 1.35. "Telstra" means TELSTRA CORPORATION LIMITED ACN 051 775 556; 1.36. "VoIP" means Voice over Internet Protocol, which is an enhanced voice communication service, whereby the voice communication is converted into a digital signal and carried, in part, over a high-speed (broadband) Internet network; 1.37. "Wireless Broadband" means an internet connection provided through point-to-point wireless technology; 1.38. a provision of this Agreement will not be construed adversely to a party on the grounds the party was responsible for the preparation of either that provision or this Agreement; 1.39. a reference to: 1.39.1. any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision; 1.39.2. any agreement or document is to that agreement or document (and, where applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time; 1.39.3. any body which no longer exists or has been reconstituted renamed replaced or whose powers or functions have been removed or transferred to another body or agency is a reference to the body which most closely the purposes or objects of the first-mentioned body; 1.39.4. any party to this Agreement, or any other document or arrangement, includes that party's executors, administrators, substitutes, successors and permitted assigns and that persons agents and contractors (or either); 1.39.5. bytes or traffic received or sent is a reference to bytes or traffic received by you or sent by you, as the case may be; 1.39.6. 'dollars' or '$' is to an amount in Australian currency; 1.39.7. 'GB' is a reference to 1000 MB; 1.39.8. 'include' in any of its parts, tenses and variants does not operate to limit the scope of any word or expression in relation to which the word 'include' is used; 1.39.9. 'Kb' is a reference to 1000 bytes; and 1.39.10. 'MB' is a reference to 1000 Kb; 1.40. a right of indemnity in respect of any liability or loss shall be enforceable without a party first making payment of the liability or loss; 1.41. a word denoting: 1.41.1. the singular number includes the plural number and vice versa; 1.41.2. an individual or person includes a corporation, firm, authority, government or governmental authority and vice versa; and 1.41.3. a gender includes all genders; 1.42. headings are for convenience of reference only and do not affect interpretation; 1.43. the provisions of any clause or sub-clause that contains any subordinate sub-clause shall be read distributively to that subordinate sub-clause and that subordinate sub-clause shall be construed accordingly; and 1.44. where: 1.44.1. an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and 1.44.2. the day on or by which any act matter or thing is to be done is not a Business Day such act matter or thing may be done on the next succeeding day which is a Business Day. AGREEMENT TO PROVIDE AND ACCEPT SERVICE 2. On the date of this Agreement: Agreement by Chariot 2.1. in consideration of the undertakings expressed or implied in sub-clause 2.2 Chariot HEREBY AGREES to provide the Service to you from the Access Date for the Access Period; and Agreement by You 2.2. in consideration of the undertakings expressed or implied in sub-clause 2.1 you HEREBY AGREE to: 2.2.1. accept the Service from Chariot; and 2.2.2. pay to Chariot the Charges from the Access Date for the Access Period AND on the terms and conditions hereafter expressed or implied. CHARIOT'S OBLIGATIONS 3. In providing the Service, Chariot: Means 3.1. may do so by whatever means it determines; Access to Service 3.2. will provide you with all identification and log-in information required for connecting to and using the Service; Continuity 3.3. will endeavour to provide the Service on a continuous basis BUT does not warrant that your access to the Internet or any Service will be uninterrupted or error free; Withdrawal of Service 3.4. may at any time with or without notice to you interfere with, adjust aspects of or temporarily withdraw the Service for any purpose including maintenance, service, upgrades, emergency procedures and repair (or any of them) and generally to ensure the efficient operation of the network and the Service (or either); Retain Data 3.5. may, at its discretion, retain, access and assess any data or information concerning your use of the Service; Deletion of E-mails 3.6. may, at its discretion, delete from its servers or other storage media any e-mail once held by Chariot for 60 days or longer; Failure to Access e-mail Accounts 3.7 Chariot may, at its discretion, where you do not for more than 30 days access an Account with which you are provided with the use of a free e-mail account, lock access to that e-mail account until you contact Chariot to arrange for the email account to be unlocked and any outstanding fees are paid; Access and Correction 3.8. will, where required by law, upon your request provide you with access to your Personal Information (refer to clauses 8 and 9) of which it is in possession and enable you to correct that information where it is incorrect or inaccurate. Prepaid Accounts 3.9. Prepaid accounts are those that are prepaid in advance. Any time on a prepaid account shall be used within 180 days of date of purchase. Any unused time will be forfeited unless a top up of $20.00 for more time occurs within this 180 day period. YOUR OBLIGATIONS 4. You: Minimum Period 4.1. acknowledge that you may not terminate this Agreement during the Initial Access Period; Responsibility for Use 4.2. accept responsibility for all aspects of use of the Service by you and all persons using your username and password; Supervision 4.3. must ensure that, unless supervised by a responsible adult, only persons over 18 years of age are able to access or use the Service; Hardware and Software 4.4. are responsible for and must provide, at your cost, any hardware and software necessary to access the Service except where you have been provided with Equipment by or purchased Equipment from Chariot; Equipment 4.5. agree that: 4.5.1. any Equipment is supplied or purchased on the terms and conditions that accompany it; and 4.5.2. Chariot and other persons may have Intellectual Property Rights (including copyright) in the Equipment and that you will not: 4.5.2.1. do or omit to do; or 4.5.2.2. permit or suffer any other Person to do anything which will or may infringe the Intellectual Property Rights of Chariot or those third parties; Confidentiality 4.6. agree not to disclose to any other person, corporation, entity or organization any: 4.6.1. identification or log-in information, whether in use or not; and 4.6.2. other Confidential Information relating to the Service or Chariot; Charges 4.7. must pay all Charges to Chariot (or as it directs) in the manner and at the time specified in your Application or in any invoice issued by Chariot. You must pay the Charges even if another person incurs them using your Account; Fees 4.8. must pay when due all: 4.8.1. fees resulting from the use of the Service accessed through your identification or log-in information, whether authorised by you or not; and 4.8.2. telecommunication charges incurred when accessing the Service (and consequently you agree to ascertain the cost of calls and the nature of those calls (for example local, long distance, international etc) prior to accessing the Service); Validity of Invoices 4.9. agree that any invoice or tax invoice raised by Chariot for Charges (or any other goods or services provided to you by Chariot) will, in the absence of manifest error, be taken to be correct and prima facie evidence of the connection, access, usage and other fees and Charges (or any of them) specified in that invoice; Notify Change of Address 4.10. must notify Chariot within 10 Business Days if you change your address or other billing contact details; Comply with Directions 4.11. must comply with all reasonable directions from Chariot pertaining to access to and use of the Service; Acceptable Use Policy 4.12. must comply with the Acceptable Use Policy; Legal Software 4.13. warrant that in accessing and using the Service you will only use software that you are legally entitled to use; Content 4.14. acknowledge that Chariot does not and cannot in any way supervise edit or control the content and form of any information or data accessed through the Service and that Chariot will not be held responsible in any way for any content or information accessed via the Service; Spamming and other Unacceptable Conduct 4.15. must not in relation to the Service do or permit or suffer any other person to do or engage in any unlawful, fraudulent or disruptive conduct (whether by act or omission) including without limitation: 4.15.1. sending or allowing to be sent unsolicited publicity, commercial or advertising material; 4.15.2. sending or allowing to be sent of unsolicited bulk e-mails; 4.15.3. using or distributing any software designed to harvest email addresses or propagate computer worms and viruses; 4.15.4. using the Service to gain unauthorised access to any other computer system; 4.15.5. breaching of the Spam Act or the Spam Regulations of the Commonwealth. 4.15.6. sending harassing, menacing, obscene, offensive or threatening electronic mail; 4.15.7. forging electronic mail; 4.15.8. placing, transmitting or storing any defamatory material on the Internet; 4.15.9. infringing any other person's rights of whatever nature or source; and 4.15.10. using the Service to: 4.15.10.1. forge header information, e-mail source addresses or user information; 4.15.10.2. distribute or make available: 4.15.10.2.1. obscene or pornographic material; 4.15.10.2.2. or material which is or could be classified R or X (or refused classification) by the Classification Board; or 4.15.10.2.3. illegal or confidential material; Minimise Risk of Breach of the Spamming Provisions 4.16. agree to use your best endeavours to secure any device or network within your control against being used in breach of clause 4.15 by third parties, including: 4.16.1. the installation and maintenance of antivirus software; 4.16.2. the installation and maintenance of firewall software; and 4.16.3. the application of operating system and application software patches and updates; Third Party IP Rights 4.17. must not reproduce, distribute, transmit, publish, copy, transfer or commercially exploit any information accessed through or received from the Service that infringes the Intellectual Property Rights of any person; Back-ups 4.18. will prepare and maintain sufficient back-up files and data storage capacity for all data including electronic messages and acknowledge that Chariot is not responsible for the safety of your data; Consents 4.19. promise to Chariot that, if you do not own the premises to which the Services and Equipment (or either) are, or are to be, provided: 4.19.1. you have obtained any necessary consent from the owner of those premises to the provision, installation and affixing (as the case may be) of the Services and Equipment (or either); and 4.19.2. if those premises are sold, that you will: 4.19.2.1. use your best endeavours to cause the purchaser to agree with Chariot to observe the terms of this Agreement; and 4.19.2.2. notify that purchaser of any of the Equipment that is owned by Chariot; and Other Service Providers' Rules 4.20. must comply with any rules imposed by any Person whose content or service you access using the Service. MONITORING AND REPORTING 5. You agree that Chariot: Compliance with Directives 5.1. at any time and without notice to you may take any steps it considers necessary to comply with any relevant authority, industry code of practice, notification or direction from the Australian Broadcasting Authority including: 5.1.1. removing any content (including part or all of a web site) from its servers; 5.1.2. closing or suspending your account; 5.1.3. filtering the Internet content made available to you; or restricting access to a particular web site AND that you will not bring any Claim against Chariot if it does so; Monitoring 5.2. may from time to time monitor your Account and use of the Service to ascertain whether you are complying with the terms of this Agreement and the Acceptable Use Policy; and Investigation and Reporting 5.3. may investigate any alleged misuse of the Service and may involve police or other law enforcement agencies in doing so and that you will liable be for and will reimburse Chariot on demand for any costs incurred by it in investigating your alleged or actual misuse of the Service. You are also liable for any Claim that may accrue to other users as a consequence of your use of the Service; and Scanning for Misconfigurations 5.4. may scan any internet protocol address ranges allocated to you for your use with the Service in order to detect the presence of open or otherwise misconfigured mail and proxy servers. CHARGES 6. You agree to pay the Charges to Chariot (or as it directs) in accordance with the following: Initial Access Period 6.1. for the Initial Access Period at the rate and in the manner specified in your Application; Subsequent Access Periods 6.2. thereafter, in the amount and in the manner specified from time to time by Chariot (unless you terminate this Agreement pursuant to clauses 18.3 or 18.4) in which case you will pay the amended rate for the period from notification pursuant to clause 7 until the date of termination; Overdue Charges 6.3. if your payment becomes overdue and if required by Chariot, interest at the rate charged from time to time by the Westpac Banking Corporation on overdrafts in excess of $100,000.00 increased by 2%; and Refunds 6.4. if: 6.4.1. you cease using the Service for any reason; 6.4.2. you do not use the Service for 90 days; or 6.4.3. this Agreement is terminated (or the provision of Services is suspended) pursuant to clause 18, access to your account will be stopped until you contact Chariot to re-enable access. You will not be entitled to nor will you receive a refund of the Charges or any part of them relating to the period for which the account was suspended. For the purposes of this clause 6.4, collecting or accessing your e-mail other than via the access number specified in your account details from time to time by Chariot will not constitute use of the Service. CHANGES TO THIS AGREEMENT 7. Chariot may change any of the terms and conditions of this Agreement (including the amount of the Charges and the Acceptable Use Policy) at any time by placing notice of the change on its web site or e-mailing or posting notice of the change to you. If Chariot does so then, subject to your right to terminate this Agreement pursuant to clause 18.4: Deemed Acceptance 7.1. if you continue to use your Account you will be taken to have agreed to the changes; and Provision on Amended Terms 7.2. the subsequent use of your Account and the provision of the Services will be governed by the Agreement as changed. CREDITWORTHINESS 8. You agree: Review 8.1. that Chariot may at any time review your creditworthiness and require you to provide additional Creditworthiness Information. In doing so, Chariot may seek information or advice from third parties such as credit reporting agencies or credit providers to assist it; Co-operation and Provision of Information 8.2. to promptly co-operate with any creditworthiness review in accordance with clause 8.1 by providing Chariot with any information, authorisation or consent it reasonably requires for the purposes of the review and in particular to provide: 8.2.1. Creditworthiness Information to Chariot within 5 Business Days of receipt of a request from Chariot for that information; 8.2.2. Security to Chariot within 10 Business Days, or a longer period if agreed, of being notified by Chariot that it requires the Security; and 8.2.3. any information necessary for any credit reporting agency, credit provider or other independent party preparing a credit report on you for Chariot to enable that party to form an accurate opinion of the your creditworthiness; Accuracy of Information 8.3. that the Creditworthiness Information provided pursuant to this clause 8: 8.3.1. will be true, fair, accurate and complete; and 8.3.2. will not suffer from any material omission when received by Chariot; and Consents 8.4. to procure written consents (if required under the Privacy Act) from any person that is necessary in the circumstances to enable Chariot to: 8.4.1. obtain from a credit reporting agency, credit provider or other independent party, information about you contained in a credit report; 8.4.2. disclose to a credit reporting agency, credit provider or other independent party, personal information about you or your directors, executive officers and senior managers (or any of them); or 8.4.3. obtain and use a consumer credit report about you. PRIVACY 9. In relation to personal information you agree that: Collection of Personal Information 9.1. Chariot may collect personal information about you and Creditworthiness Information ("your Personal Information"): 9.1.1. from you; or 9.1.2. subject to the requirements of Part IIIA of the Privacy Act, from a credit provider or credit reporting agency because otherwise Chariot may not be able to provide the Service to you at all or as well as you would like; Use of Personal Information 9.2. Chariot may use your Personal Information: 9.2.1. to assess any application by you for credit or commercial credit to be provided by it; 9.2.2. to collect payments that are overdue in respect of any credit or commercial credit provided by it; 9.2.3. to provide the Service to you (including the investigation or resolution of disputes relating to any Service provided to you) and to provide credit or commercial credit to you in relation to the Service; 9.2.4. to provide information to you about other goods or services which it or other persons may offer to you; and 9.2.5. as otherwise authorised or required by law; Disclosure of Personal Information 9.3. Chariot may disclose your Personal Information at any time to: 9.3.1. a credit reporting agency: 9.3.1.1. to obtain a consumer credit or a commercial credit report about you; 9.3.1.2. to allow the credit reporting agency to create or maintain a credit information file containing information about you; 9.3.2. other credit providers named in a consumer credit report obtained by Chariot from a credit reporting agency about you for the purposes of: 9.3.2.1. assessing any application by you for credit or commercial credit or your credit worthiness; 9.3.2.2. notifying other credit providers of a default by you; and 9.3.2.3. exchanging information with other credit providers as to the status of any credit or commercial credit provided by it where you are in default with those other credit providers; 9.3.3. suppliers for the purpose of enabling Chariot to provide the Service to you (including the investigation and resolution of disputes or complaints concerning the provision of the Service); 9.3.4. a body corporate that is related to Chariot under the Corporations Act, Chariot's partners and associates (for example, telecommunication entities, providers of products or services which are related to the Service, media entities, event organisers, equipment suppliers and the suppliers of any other product or service with whom Chariot has engaged in a joint initiative) so that they can provide information to you about goods and services they offer; 9.3.5. government agencies or individuals appointed by a government (including the Telecommunications Industry Ombudsman and Australian Communications Authority) responsible for the investigation and resolution of disputes or complaints concerning your use of the Service for the purpose of enabling investigation and resolution of those disputes or complaints; and 9.3.6. other entities who provide services to us related to the provision of the Service to you (including SMS, a mail house and resellers or contractors engaged by the resellers) to enable them to provide those services to us or administer payment arrangements in connection with those services; and Refusal or Restriction 9.4. may refuse your Application or monitor or restrict your access to the Service based on the information Chariot obtains about you pursuant to or in relation to this Agreement. DSL SERVICE 10. Where your Service includes a DSL service (including for the purposes of this clause a service provided using a satellite connection through Chariot) then you agree that: Provision of Service 10.1. the Service is: 10.1.1. an end-to-end service connecting a suitable Telstra analogue copper service, via DSL protocols, to Chariot, and thereby to the Internet; and 10.1.2. only available as an overlay on an existing, operational, telephone service using the Telstra copper local loop; Tools 10.2. tools provided by Chariot that indicate service availability are a guide only and may not be relied upon as a commitment to provide Service to a particular geographic location; No Guarantee of Service 10.3. due to limitations imposed on Chariot by Telstra: 10.3.1. Chariot does not guarantee that: 10.3.1.1. the Service will work; or 10.3.1.2. the service can be restored within any particular timeframe if it fails; 10.3.2. Chariot can only supply DSL services over what Telstra define as a 'qualified pair', where Telstra supplies operational standard telephone services over the same Qualified Pair, and accordingly: 10.3.2.1. you warrant to Chariot that as a person to whom Chariot provides services using a DSL service over a qualified pair you are the same the person to whom Telstra supplies a standard telephone service using that qualified pair; 10.3.2.2. Chariot will only provide the Service to you for so long as you continue to acquire that standard telephone service from Telstra using that qualified pair; and 10.3.2.3. if you cease to have a standard telephone service from Telstra using that qualified pair, then Chariot may terminate the provision of the Service over that qualified pair; Unavailability of Service 10.4. the Service may be or become unavailable on some Telstra lines due to the presence of 'technology blockers' such as matching transformers or 'pair gain' systems; Withdrawal by Telstra 10.5. Telstra may withdraw the Service: 10.5.1. due to 'network modernisation' or for any other reason which may lead to the removal of a continuous copper path between the exchange DSL access equipment and your premises; or 10.5.2. without explanation on giving three months notice to Chariot AND if this happens then Chariot may need to cancel the Service; Termination of Service 10.6. the Service will be terminated if the telephone service on the same physical line is terminated for any reason; Set up Costs 10.7. the setup and monthly recurring charges specified in your Application: 10.7.1. are for the provision of access and the data; and 10.7.2. do not include hardware, or costs for hardware, related to the purchase, maintenance, repair, or insurance, of DSL termination equipment on the your site; Authorised Equipment 10.8. you may only connect DSL equipment to the Telstra line used for the Service where: 10.8.1. the equipment is listed on Chariot's DSL products web page at the time that the Service is ordered; and 10.8.2. all telephony equipment operating on your line concurrently with the DSL device will be isolated from DSL interference by installation of a DSL line filter or splitter; Transmission Speeds 10.9. transmission speeds referred to by Chariot for the Service refers to the maximum theoretical throughput speed achievable with that Service under ideal conditions and the actual achieved speeds may be lower than the theoretical speeds for a variety of reasons including: 10.9.1. Telstra network congestion; 10.9.2. Telstra line interference; 10.9.3. Internet congestion; and 10.9.4. errors in configuration of your Equipment; Removal of Other Telstra Services 10.10. you may need to remove certain Telstra services active on your telephone line before the Service can be installed or operated; Release and Indemnity 10.11. Telstra imposes on Chariot the following limitations in relation to the provision of DSL services service and requires Chariot to impose these limitations on its customers. Consequently to the extent that the Claim is caused by or arises from the provision or cancellation of a DSL service you release and indemnify Telstra and Chariot from all Claims (including third party Claims) arising from the following: 10.11.1. cancellation of the DSL service for any reason; 10.11.2. cancellation of, or refusal by Telstra to provide, services considered by Telstra to be incompatible with the provision of DSL on an analogue line; 10.11.3. disruption in the delivery of telephone services; 10.11.4. suspension of the provision of the service to particular Internet Protocol (IP) addresses; and 10.11.5. possible breaches of the Telecommunications (Customer Service Guarantee) Standard in respect to these issues (or any one or more of them); Further Obligations 10.12. you: 10.12.1. will not interfere with normal operation of the service or any facility, or make either unsafe; 10.12.2. will allow Telstra or Chariot safe access to your premises if required in order to inspect or test a facility that may be causing interference or danger, and as required by Telstra or Chariot in connection with the provision, maintenance and repair of the service or any related facility; 10.12.3. will ensure that Telstra or Chariot is provided with sufficient and timely access to your premises to enable Telstra or Chariot (as applicable) to provide the service; and 10.12.4. will permit Telstra or Chariot to modify any facility or Telstra equipment to avoid danger if requested by Telstra or Chariot; Temporary Disruption 10.13. the: 10.13.1. installation of a DSL service may cause temporary disruption in your standard telephone services; and 10.13.2. prior existence of, or the subsequent installation of, a monitoring service may cause temporary disruption in your Service; Equipment and Installation Costs 10.14. the installation of equipment such as central splitters and network termination devices may be required and that you will bear the cost of these devices and their installation; Functionality 10.15. the availability or performance of the Service and components of the Service may vary, and a component of the service may not be provided, depending on the available capacity of, the geographic location and technical capability of, or other technical matters affecting, the relevant Telstra networks at the time at which a request for the Service is made or the time at which a service is delivered; Indemnity - Premises 10.16. if you do not own control or have access to the premises in which the service is delivered, you must indemnify Telstra and Chariot (or either) against a Claim by the owner or occupier of the service premises, or any other person, in relation to Telstra's or Chariot's entry to those premises; Service and Performance Queries 10.17. you will direct all service and performance queries related to the Service to Chariot, and NOT to Telstra. Each call to Telstra regarding the Service incurs a $55.00 penalty charge from Telstra to Chariot, for which you must reimburse Chariot on demand; Early Termination Fee 10.18. if, in breach of sub-clause 4.1, you terminate your Account prior to 6 months from the Access Date, then in addition to any other amounts or damages that you are or become liable to pay to Chariot for breach of contract, you will pay on demand a fee of $50.00 to Chariot; and Automatic Cancellation 10.19. the Service will be automatically cancelled by Telstra if any of the following occur: 10.19.1. your telephone account is cancelled; 10.19.2. your billing details with Telstra are changed in any way that results in Telstra treating your account with it as a new account (for example adding another person or changing your name on marriage); 10.19.3. you move to another location (even when keeping your existing telephone number); 10.19.4. you order a Telstra service that is not compatible with DSL, on your DSL-enabled telephone line. If any of the above changes occur and you wish to continue subscribing to DSL, you must reapply for a new DSL service. This will incur a setup fee of $110.00. Chariot recommends you contact it before making any of these changes to your DSL-enabled telephone line. WIRELESS BROADBAND SERVICE 11. Where your Service includes Wireless Broadband then you agree that: Provision of Service 11.1. the Service is: 11.1.1. a point-to-point service providing you with access to the Internet via Chariot through wireless protocols; and 11.1.2. only available through approved wireless equipment provided and installed by Chariot (and which remains the property of Chariot - refer to sub-clauses 11.8 and 11.9); Tools 11.2. tools provided by Chariot that indicate service availability are a guide only and may not be relied upon as a commitment to provide the Service to a particular geographic location or to your premises. Chariot can only supply Wireless Broadband once it has established that a signal with adequate strength can be received at your premises; No Guarantee of Continuous Service 11.3. due to operating limitations Chariot does not guarantee that: 11.3.1. the Service will work at all times; or 11.3.2. the Service can be restored within any particular timeframe if it fails; Unavailability of Service 11.4. the Service may be or become temporarily or permanently unavailable for a number of reasons including: 11.4.1. interference with or removal of the line-of-sight or near line-of-sight required to provide Wireless Broadband between the aerial and Chariot's access point; 11.4.2. radio, electromagnetic or other type of interference; Termination of Service 11.5. the Service will be terminated if, for any reason, you interfere with, damage, destroy or lose or render inoperable any of the Equipment; Set up Costs 11.6. the setup and monthly recurring charges specified in your Application: 11.6.1. are for the provision of access and the data; and 11.6.2. do not include hardware, or costs for hardware and software (or either), related to the operation, maintenance, repair, or insurance, of the Service (each of which is your responsibility); Connection Requirements 11.7. you will have to provide: 11.7.1. a single untwisted shielded pair ethernet port with the ability to network your personal computer; or 11.7.2. a broadband router with an ethernet WAN port; and 11.7.3. a general power outlet; Equipment 11.8. Chariot will provide you with Equipment for the reception or provision of the Service and you will use that Equipment in accordance with the terms of this Agreement. Chariot may also require you to have installed certain of your own equipment (in addition to that specified in sub-clauses 11.6.2 and 11.7) before it can start providing the Service to you; Installation 11.9. Chariot or its authorised persons will install the Equipment on your premises and you: 11.9.1. must provide Chariot and its authorised persons with safe access to your premises for the purpose of installing, maintaining, using, removing, replacing or repairing the Equipment; 11.9.2. will be liable for the cost of any third-party services that may be required in connection with the performance of any of the acts, matters or things referred to in sub-clause 11.9.1; 11.9.3. must comply with Chariot's or its authorised persons' reasonable requirements concerning installation including without limitation the safety of any personnel on your premises; 11.9.4. agree that Chariot retains the legal and beneficial ownership of the Equipment at all times except as advised in writing by Chariot to the contrary; 11.9.5. must not remove any marking which identifies the Equipment as Chariot's property and must not do anything inconsistent with Chariot's ownership of the Equipment including but not limited to offering the Equipment for sale, creating or allowing a security interest to be created over the Equipment or parting with possession of the Equipment except as permitted by Chariot or this Agreement; 11.9.6. must provide a suitable place for the Equipment and electricity and power points for the Equipment at your own expense; Work Order 11.10. when you sign a work order in relation the installation of the Equipment (and if you do not then Chariot may decline to provide the Service to you and will not be liable for any cost, expense or loss occasioned thereby), you acknowledge that the work detailed on the work order was carried out to your satisfaction and that the Equipment was in working order at the date of installation and that you approve the quality and reception of the Wireless Broadband Services; Responsibility for Loss or Damage to Equipment 11.11. the Equipment provided to you by Chariot was in good working order at the time of installation and that you are responsible for any damage to, or loss of the Equipment caused by any reason whatsoever, including natural disaster, power supply or your, or any other person's acts, errors and omissions (or any of them). Charges for damaged or lost Equipment must be paid by you on demand; Substitution of Equipment 11.12. Chariot may at any time alter or substitute the Equipment in its absolute discretion and must authorise any removal, relocation, maintenance or connections to the Equipment; Service Calls 11.13. Chariot may charge you a service call fee where a service fault is not due to faulty Equipment or Chariot's actions and may also charge you for any work that was required to find the fault or repair it; Removal 11.14. Chariot is not obliged to remove any part of the Equipment and it may charge you a fee if it removes any part of the Equipment at your request; and Transmission Speeds 11.15. transmission speeds referred to by Chariot for the Service refer to the maximum theoretical throughput speed achievable with that Service under ideal conditions and the actual achieved speeds may be lower than the theoretical speeds for a variety of reasons including: 11.15.1. network congestion; 11.15.2. signal interference; 11.15.3. Internet congestion; and 11.15.4. errors in configuration of the Equipment; Release and Indemnity 11.16. to the extent that a Claim is caused by or arises from the provision, interruption or cancellation of the Service you release and indemnify Chariot from all Claims (including third party Claims) arising from the following: 11.16.1. cancellation of the Service for any reason; 11.16.2. suspension of the provision of the Service to particular Internet Protocol (IP) addresses; 11.16.3. the unavailability of the requisite bandwidth (whether due to legal or physical restraints); and 11.16.4. possible breaches of the Telecommunications (Customer Service Guarantee) Standard in respect to these issues (or any one or more of them); Further Obligations 11.17. you: 11.17.1. will not interfere with normal operation of the Service or any facility, or make either unsafe; 11.17.2. will allow Chariot safe access to your premises if required in order to inspect or test a facility that may be causing interference or danger; and 11.17.3. will permit Chariot to modify any facility to avoid danger if requested by Chariot; Functionality 11.18. the availability or performance of the Service and components of the Service may vary, and a component of the Service may not be provided, depending on the available capacity of, the geographic location and technical capability of, or other technical matters affecting, the relevant Chariot network at the time at which a request for the Service is made or the time at which a Service is delivered; Indemnity - Premises 11.19. if you do not own, control or have access to the premises in which the service is delivered, you must indemnify Chariot against a Claim by the owner or occupier of those premises, or any other person, in relation to Chariot's entry to those premises; and Portability 11.20. if you move to another location, you must inform Chariot of your new address within 7 days after moving and the Service to you at your old premises will be cancelled by Chariot. If this occurs and you wish to continue subscribing to Wireless Broadband, you must reapply for a new Wireless Broadband Service. This will incur a setup fee and Chariot recommends that you contact it before moving. PRESELECTION 12. Where your Service includes Preselection: Pending Transfer In 12.1. the Call Types will continue to be supplied by your current preselected service provider (if any) and you remain liable for and must pay to that service provider all call charges and other amounts in relation to that service until the transfer process is completed by Chariot; and Pending Transfer Out 12.2. if you wish to have the Call Types provided by a different service provider then you must arrange for that provider to do so, for it to attend to all incidental matters and you must pay Chariot all Charges incurred in relation to Preselection until the line is transferred to that service provider or disconnected. VOICE OVER INTERNET PROTOCOL (VoIP) 13. Where your Service includes VoIP then you agree that: Provision of Service 13.1. the Service is: 13.1.1. an enhanced voice communication service, whereby the voice communication is converted into a digital signal and carried, in part, over a high-speed (broadband) Internet network and provides you with: 13.1.1.1. a Chariot provided telephone number and/or associated to your current PSTN number; 13.1.1.2. features as specified by Chariot as being available to you; 13.1.1.3. the ability to make Chariot VoIP to VoIP calls and calls to any fixed or mobile service (or as otherwise agreed); and 13.1.1.4. the ability to receive Chariot VoIP to VoIP calls; 13.1.2. a secondary and separate service that is distinct from a standard telephone service; and 13.1.3. only available over a separately supplied broadband service, BUT the VoIP Service does not include a broadband service; No Guarantee of Continuous Service 13.2. due to operating limitations Chariot does not guarantee that: 13.2.1. the Service will work at all times; or 13.2.2. the Service can be restored within any particular timeframe if it fails; Unavailability of Service 13.3. the Service may be or become temporarily or permanently unavailable for a number of reasons including: 13.3.1. a power outage; 13.3.2. broadband network outage; 13.3.3. poor network performance; 13.3.4. VoIP system outage; or 13.3.5. customer alterations to their network and/or system; Termination of Service 13.4. in addition to the other circumstances specified herein in which this Agreement may be terminated, the Service may be terminated by Chariot if: 13.4.1. you do not pay your account in full and when due; or 13.4.2. you request that the Service be terminated; Set up Costs 13.5. the setup and monthly recurring charges specified in your Application: 13.5.1. are for the provision of access; and 13.5.2. do not include hardware, or costs for hardware and software (or either), related to the operation, maintenance or repair of the Service (each of which is your responsibility); Call Rates 13.6. you acknowledge and agree that: 13.6.1. the call rates can be viewed on the Chariot website; and 13.6.2. your minimum monthly spend on call costs must be $10.00: and 13.6.2.1. if your call costs do not amount to $10.00 you must pay the difference; and 13.6.2.2. you must notify Chariot upon cancelling the Service otherwise the minimum monthly fee of $10.00 will continue to be charged and you must pay that amount as and when due; Connection Requirements 13.7. you acknowledge and agree that: 13.7.1. VoIP is a Service that operates over a separately supplied broadband service; 13.7.2. you are responsible for providing and maintaining a broadband service suitable for VoIP: 13.7.3. you may be able to use the Service using a Softphone (which can be downloaded from a link on the Chariot website) and headphones or an ATA or VoIP enabled router, but you acknowledge that in order to receive and use the Service: 13.7.3.1. you must at your cost install, or arrange for the installation of, all equipment necessary to enjoy the Service; and 13.7.3.2. all such equipment must be compatible with the Service: and 13.7.3.2.1. if any such equipment you supply is not compatible with the Service or is faulty, you may not be able to access, operate or use the Service; and 13.7.3.2.2. the quality of the Service or your ability to access the Service may be affected if: 13.7.3.2.2.1. there is an interruption to the broadband service; or 13.7.3.2.2.2. you request a variation to the broadband service and the quality of the Service and/or your ability to access the Service may be affected during implementation of your request to vary the broadband Service; Release and Indemnity 13.8. to the extent that a Claim is caused by or arises from the provision, interruption or cancellation of the Service you release and indemnify Chariot from all Claims (including third party Claims) arising from the following: 13.8.1. cancellation of the Service for any reason; 13.8.2. the unavailability of the requisite bandwidth (whether due to legal or physical restraints); and 13.8.3. possible breaches of the Telecommunications (Customer Service Guarantee) Standard in respect to these issues (or any one or more of them); Transmission Speeds 13.9. you must have a broadband service capable of carrying internet protocol data traffic at upload speeds of at least 64Kb per second in each direction (however a speed of at least 128Kb per second in each direction is recommended); and Emergency Services 13.10. in relation to emergency services: 13.10.1. the Service supports access to emergency call services (000 or other emergency service telephone numbers) but the Service will not be available in the event of a power failure or interruption to your broadband service connection . In the event that there is an interruption to the power supply, the Service may not be available until power is restored. A power failure or disruption may require you to reset or reconfigure the VoIP enabled modem/router prior to using the Service. For this reason, Chariot strongly recommend that you use an ATA (in the instance that your broadband service is interrupted) and that you do not disconnect your primary standard telephone service; 13.10.2. the Service does not provide location information to the emergency service operator, 13.10.3. the Service is NOT a substitute for a standard PSTN service and it is recommended that you maintain an alternative telephone service PSTN or mobile to make and receive calls and to ensure that you have on-going access to 000 and other emergency call services; and 13.10.4. Chariot is not liable to you for any loss or damage you suffer or for any costs, expenses or charges you incur arising from any inability to access emergency call services using the Service; ATA 13.11. the ATA will act as a failover device if the Service fails if a standard PSTN service is plugged into the device and if it does so you will be charged the prevailing telephone service carrier rates at that time; Further Obligations 13.12. you: 13.12.1. will not interfere with normal operation of the Service or any facility, or make either unsafe; 13.12.2. will allow Chariot safe access to your premises if required in order to inspect or test a facility that may be causing interference or danger; and 13.12.3. will permit Chariot to modify any facility to avoid danger if requested by Chariot; Portability 13.13. the Service is portable so long as you have access to a broadband Internet connection. PROVISION OF SECURITY 14. You agree that: On Request by Chariot 14.1. you will provide Security for the performance of your obligations under this Agreement if for any reason Chariot requests you to do so including without limitation: 14.1.1. you fail to make any payment under this Agreement when it falls due; 14.1.2. you request or acquire additional services from Chariot; 14.1.3. you cease or in Chariot's reasonable opinion are likely to cease carrying on business; Suspension of Service 14.2. if you are required to provide Security in accordance with clause 14.1, Chariot may suspend provision of the Service until receipt of the Security; No Waiver 14.3. the provision of the Service by Chariot prior to receipt of the Security will not constitute a waiver of the requirement to provide the Security; Application of Security 14.4. Chariot may call upon the Security to satisfy any amount due under this agreement that is not received by it on the due date; Maintain Security 14.5. if the Security is wholly or partially drawn down by Chariot, you will immediately provide Chariot with a replacement or additional Security for the full amount of the Security that was in place immediately before that draw down; Retention of Security 14.6. Chariot may retain any Security provided by you for seven months after the later of: 14.6.1. the date of termination of this Agreement; 14.6.2. the date you paid all amounts due to Chariot under this agreement; 14.6.3. the date you ceased to acquire goods or services from Chariot under this agreement; and 14.7. you will pay to Chariot on demand (whether by way of invoice or otherwise) all State and Federal taxes (or either) imposed on or payable by or met by Chariot on or in respect of or in connection with any Security provided pursuant to clause 14.1. ON-SUPPLY OF THE SERVICE 15. You must not without the prior written consent of Chariot, supply or make available the Service or any part thereof (including data) to any other person (whether for business or private use). Chariot may, in its absolute discretion, give or withhold its consent or give or make its consent subject to conditions. DISCLAIMER AND LIMITATION OF CHARIOT'S LIABILITY 16. You expressly acknowledge to and agree with Chariot that: Performance 16.1. Chariot does not warrant to you that the Service will be free of blockages, delays, network congestion, interference or faults of any kind including: 16.1.1. a delay in the delivery of e-mail to your intended recipient; 16.1.2. the complete failure of delivery of e-mail to your intended recipient; or 16.1.3. the delivery of your e-mail to an unintended recipient AND that Chariot is not liable for any loss or damage which may result from the occurrence of any one or more of these things; Exclusion of Warranties 16.2. except as required by law, and subject to clause 16.3, all terms, conditions, warranties, undertakings, inducements and representations, whether express or implied, statutory or otherwise, relating to the provision by Chariot of the Service to you are excluded, and Chariot will not be under any other liability in respect of any loss or damage (including consequential loss or damage) however caused (whether by negligence or otherwise) which may be suffered or incurred by you or which may arise directly or indirectly in respect of provision of the Service; and Limitation of Liability 16.3. to the extent permitted by law, Chariot's liability for breach of any term, condition, warranty or under any remedy implied by law (which cannot be excluded), will be limited at Chariot's option to the repair or re-supply of the Equipment or Service or the payment to you of the cost to Chariot of having the Equipment or Service re-supplied. INDEMNITY 17. You indemnify Chariot and its officers, employees, agents and related bodies corporate (or any one or more of them) from and against all Claims arising out of or in any way connected to the use of the Service by you or someone using your identification or log-in information (whether with or without your permission). TERMINATION OR SUSPENSION OF THIS AGREEMENT 18. This Agreement: By Chariot - For Cause 18.1. may be terminated or the provision of Services suspended by Chariot immediately and without notice to you if any of the following occurs: 18.1.1. you breach or threaten to breach this Agreement (including your obligations under the Acceptable Use Policy); 18.1.2. Chariot suspects on reasonable grounds that you have breached an obligation under this agreement including your obligation under the Acceptable Use Policy or that you may or are about to do so; the Service provided to you is used to host any device or service that allows email to be sent between third parties not under your authority and control however Chariot will first make reasonable attempts to contact you and give you the opportunity to address the problem within a reasonable time period. What is reasonable in this context will depend on the severity of the problems being caused by the open service or breach referred to above. Chariot's right to suspend your account applies regardless of whether the open service is provided or the breach is committed intentionally, through misconfiguration, or by other means not authorised by you including but not limited to through a Trojan horse or virus; 18.1.3. the appointment of any type of insolvency administrator in respect of your property or your affairs; 18.1.4. the entry or proposed entry by you into any scheme, composition or arrangement with any of your creditors; 18.1.5. the permanent discontinuance of use of the Equipment or any part of the Equipment by you; or 18.1.6. if you are a body corporate, the merger with or the takeover of you by another person; By Chariot - Without Cause 18.2. may be terminated or the provision of Service suspended by Chariot without cause if Chariot gives you not less than 24 hours prior notice of its intention to do so (unless revoked during that notice period); By You - Without Cause 18.3. may, after the expiry of the Initial Access Period, be terminated by you by giving Chariot not less than 22 clear Business Days prior written notice of your intention to do so (unless revoked during that notice period); and By You - For Change of Terms 18.4. may be terminated by you by giving Chariot not less than 5 clear Business Days prior written notice of your intention to do so (unless revoked during that notice period) if Chariot changes this Agreement pursuant to clause 7 and that change is materially detrimental to you (for example by increasing the Charges or imposing reduced speeds or reducing up-loading or down-loading quotas) in any case without affecting your accrued rights and liabilities or those of Chariot and without affecting any provision of this Agreement, which is expressly or by implication intended to continue in force after termination. ASSIGNMENT 19. You may not novate, assign, transfer, mortgage, charge or dispose of any legal or equitable interest in any of your rights or obligations under this Agreement without Chariot's prior written consent (which consent may be given or withheld in Chariot's absolute discretion). Chariot may do any of these things and may sub-contract the performance of any or all of its obligations pursuant to this Agreement. ENTIRE AGREEMENT 20. This Agreement constitutes the sole and entire agreement between the parties and a warranty, representation, guarantee or other term or condition of any nature not contained or recorded in this Agreement is of no force or effect. FORCE MAJEURE 21. A party will not be liable for any failure to perform or observe any term of this Agreement if performance or observance has been delayed hindered restricted or prevented by any circumstance not within the direct control of that party. This includes (without limiting the generality of the foregoing): 21.1. Acts of God; 21.2. fire; 21.3. flood; 21.4. strikes lock-outs or other industrial disturbances; 21.5. war hostilities or the threat or apprehension thereof; 21.6. any interruption to the supply of materials or information; 21.7. any accident or breakdown of machinery or the making of emergency or essential repairs thereto; or 21.8. compliance with any valid order of any governmental or public authority AND the time or times for performance of the obligations on the respective parties' parts to be performed herein will be extended by a period equal to each period of delay IF the party in relation to whom any of the foregoing has occurred has as soon as practicable thereafter given notice to the other party in accordance with the provisions of this Agreement providing reasonable details of what has occurred and has and continues to endeavour to remove or remedy the cause thereof with all due diligence and expedition. FURTHER ASSURANCE 22. Each party must do, sign, execute and deliver and must procure that each of its employees and agents does, signs, executes and delivers, all deeds, documents, instruments and acts reasonably required of it or them by notice from another party effectively to carry out and give full effect to this Agreement and the rights and obligations of the parties under it. GOVERNING LAW AND JURISDICTION 23. This Agreement is governed by, and is to be construed in accordance with, the law of South Australia and the parties submit to the non-exclusive jurisdiction of the courts of South Australia and any court hearing appeals from those courts. GST 24. A party: Payment of GST 24.1. must pay GST on a Taxable Supply made to it under this Agreement in addition to any consideration (excluding GST) that is payable for that Taxable Supply. That party must do so at the same time and in the same way as it is required to pay the consideration for the Taxable Supply; and Tax invoices 24.2. making a Taxable Supply to another party under this Agreement must issue a tax invoice to the other party stating the amount of GST payable by that other party. That party must do so at the time the other party is required to pay the consideration for the Taxable Supply. LIABILITY OF PARTIES 25. If any party to this Agreement consists of more than one person then the liability of those persons in all respects under this Agreement is a joint liability of all those persons and a separate liability of each of those persons. NO PARTNERSHIP 26. This Agreement does not create a partnership, agency, fiduciary or any other relationship, except the relationship of contracting parties, between the parties. Neither party is liable for an act or omission of the other party, except to the extent set out in this Agreement. NOTICES 27. A notice: Method of Giving Notices 27.1. required or permitted to be given by one party to another under this Agreement must be in writing and must be treated as being duly given if it is: 27.1.1. left at that other party's address; 27.1.2. sent by: 27.1.2.1. prepaid mail to that other party's address; or 27.1.2.2. e-mail to that other party's e-mail address; or 27.1.3. transmitted by facsimile to that other party's facsimile number; Time of receipt 27.2. given to a party in accordance with clause 27.1 is treated as having been duly given and received: 27.2.1. when delivered (if left at that party's address); 27.2.2. on the second Business Day after posting (if sent by prepaid mail); 27.2.3. on the Business Day of sending (if no intimation is received that the notice has not been received, whether that intimation comes from that party or from the operation of the equipment used to send the e-mail or otherwise); and 27.2.4. on the Business Day of transmission (if given by facsimile and sent to the facsimile receiver number of that party and no intimation is received that the notice has not been received, whether that intimation comes from that party or from the operation of facsimile machinery or otherwise); Address of Parties 27.3. for the purposes of this clause 27, the address of a party is the address set out below or another address of which that party may from time to time give notice to each other party: 27.4. Party Address Chariot: Delivery and post: Level 1, 214 Greenhill Road, Eastwood, South Australia 5063 E-mail: service@chariot.net.au Facsimile: (08) 8291 8822 You: As specified in your Application. SEVERANCE 28. If any provision of this Agreement is invalid and not enforceable in accordance with its terms, other provisions which are self-sustaining and capable of separate enforcement with regard to the invalid provision are and continue to be valid and enforceable in accordance with their terms. SURVIVAL AND ENFORCEMENT OF INDEMNITIES 29. Each indemnity in this Agreement is a continuing obligation, separately independent from the other obligations of the parties and survives termination of this Agreement and it is not necessary for a party to incur expense or make payment before enforcing a right of indemnity conferred by this Agreement. TIME OF THE ESSENCE 30. Time is of the essence in relation to all of the obligations of each party under this Agreement. WAIVER 31. A failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party by this Agreement does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right under this Agreement. THE SCHEDULE Acceptable Use Policy If you use the Service (and if applicable, any part or aspect of it), you must comply with this Acceptable Use Policy. If you fail to comply, Chariot may suspend or terminate your use of the Service without refund of any pre-paid Charges or effect on your liability to pay any Charges that you have not paid at that time. The Acceptable Use Policy is designed to bring about the result that your use of the Service does not break any laws or interfere with the use of the Service by other Chariot customers. A copy of this policy can be obtained from Chariot's web site. Chariot may change this Policy from time to time and you will be bound by those changes once posted on the web site. You must check this policy on Chariot's web site regularly to ensure that you are aware of your obligations under this policy, namely: 1. Age Restrictions You must be over 18 years of age to have an Account with Chariot. If you are under the age of 18 years you must have the consent of your parent, teacher or other responsible adult before you can have an account with Chariot. Chariot may nevertheless refuse your application for the Service. Chariot has total discretion in this matter. 2. Parental Guidance - Children Chariot strongly recommends that you seek guidance from the following site: http://www.iia.net.au/guideuser.html to assist you to supervise and control children's access to Internet content. This site will also explain to you about your right to make a complaint to the Australian Broadcasting Authority about online content. Chariot also recommends that you install an approved content filter. You are solely responsible for the cost, maintenance and support of any filter you choose to install. 3. Commercial Content Provider Chariot strongly recommends that you seek guidance from the following site: http://www.iia.net.au/guideuser.html in relation to using appropriate labelling systems as well as your legal obligations in regard to the content you publish. 4. Unacceptable Conduct You must not: • use the Service to obtain or attempt to obtain unauthorised access to any computer, system or network. If you do not have permission, you must not: • access or use any data, systems or networks; • probe, scan or test the vulnerability of a system or network; • breach any security or authentication measures for a system or network; or • attempt to gain access to the account of any other user. It is a criminal offence to unlawfully access or damage data in a computer, system or network; • use the Service in a manner which interferes with the rights of other users. In particular you must not: • monitor (or attempt to monitor) data or traffic on any network or system without permission of the owner of the network or system; • forge any TCP-IP packet header, any part of the header information or an e-mail source address in an e-mail or newsgroup posting; • provide false user information to Chariot or other users; • send large amounts of unsolicited or unwanted e-mail to others and/or their business accounts; • gain access to a person's private information (or attempt to do so); • disobey the rules of any newsgroup, forum, e-mail mailing list or other similar group; or • post the same or similar messages to one or more newsgroups (including by excessive cross-posting or multiple-posting, also known as 'spam'). If you do not want to receive unsolicited e-mail or promotional material Chariot strongly recommends that you seek guidance from http://www.iia.net.au/guideuser.html • use the Service in a manner which may interfere with the technical operation of the Service or any other computer, system or network; • attempt to interfere with the regular workings of Chariot's systems or network connections. Chariot may override any attempt by you to specify a particular traffic routing pattern; • impair (or attempt to impair) the ability of other people to use Chariot's systems or the Internet. In particular you must not use the Service to disable (or attempt to disable) other systems; or • use IRC bots or clonebots on the Service, whether on IRC servers controlled by Chariot or other parties. An IRC bot is a program that runs and is connected to an IRC server 24 hours a day, automatically performing certain actions. 5. Act Responsibly In using the Service you must at all time conduct yourself in a responsible and considerate manner. In particular you must not break any laws or infringe the rights of other persons. For example, you must not: • distribute or make available any abusive, obscene, defamatory, personally offensive or pornographic material including any material which would be classified R or X (or refused classification) by the Classification Board; or • copy any material if you do not have the owner's permission to do so. 6. Detection and Breach To detect and deal with breaches of the Acceptable Use Policy, Chariot may take the following actions: • Chariot will co-operate with other Internet Service providers to control unacceptable user behaviour; • Chariot may give details of users who are suspected of breaking any laws in connection with the Service to the police and to other law enforcement agencies; • Chariot may implement technical mechanisms to prevent behaviour, which breaches this Policy (for example, which block multiple postings before they are forwarded to their intended recipients); • Chariot may exercise any rights it has under its agreement with you if your account is being used in breach of this Policy. Such rights include the right to suspend or terminate your use of the Service; or • Chariot may take any other action it considers appropriate, including taking action against offenders to recover the costs and expenses of identifying them. 7. Telecommunications Act 1997 You acknowledge that Chariot must comply with the Telecommunications Act 1997 (Cth) and other laws and directives from state or federal law enforcement agencies that have jurisdiction over the use of Internet services and the Services (or either) and that Chariot is not liable for any loss, damage or interruption to the Service that you may suffer or incur as a result of compliance therewith. 8. Offensive material Chariot disclaims all or any liability for any material on the Internet that you find offensive, upsetting, defamatory or in any way unsuitable for a person to view (whether or not that person is under the age of 18 years).

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