NetStart Core Terms and Condtions
What is this document?
1.1. This document sets out the basic terms on which Netstart provides services (this includes goods and services) to customers. They apply to every service Netstart supplies, and are called ‘core terms’.
1.2. Extra terms may also apply in certain cases. These terms indicate when extra terms will apply.
Who are the parties?
‘We’, ‘us’, or ‘Netstart’ means Netstart Pty Ltd, and ‘you’ or ‘customer’ means anyone that we supply a service to.
What are service descriptions?
A ‘service’ means any goods or service that we offer or supply. Each service may be briefly identified by its ‘service description’.
What are service terms?
4.1. We may publish extra terms that apply to a particular product or service (‘service terms’).
4.2. Service terms may be set out in service information, or on an application form, or otherwise notified to you.
4.3. Service terms only apply to the service they relate to.
4.4. Service terms may include, or incorporate by reference, a service level guarantee.
4.5. Service terms are part of our customer contract with you.
How do we price our products and services?
5.1. We may charge you for our products and services in accordance with our price list.
5.2. We may change the price list by publishing a new one. A reference to ‘price list’ means the current price list at any particular time.
5.3. We may also agree to alternate pricing with you – where we do we will provide you with written confirmation and the pricing in our confirmation will prevail over our price list.
5.4. Changes take effect immediately. They have no effect on charges for services that have already been supplied.
5.5. The price list is part of our customer contract with you.
5.6. If a customer contract states that charges for the contract will be fixed for a certain period, or until a certain date, changes made during that period, or before that date, do not take effect until the end of that period, or until that date.
What is a customer contract?
6.1. When we supply a service to you, the terms and conditions of supply consists of:
6.1.1. these core terms; and
6.1.2. any applicable service terms; and
6.1.3. the applicable items in the price list;
6.2. Together, those terms and conditions and items are called the ‘customer contract’.
What if different parts of the customer contract conflict?
7.1. To the extent of any conflict or inconsistency between them, the parts of the customer contract have the following order of priority, from highest to lowest:
7.1.1. price list;
7.1.2. service terms;
7.1.3. core terms.
How are changes to customer contracts dealt with?
8.1. Unless you are in a fixed term contract or the minimum term of your customer contract has not expired, we may change the terms of your customer contract, subject to this clause.
8.2. We may change our price list by publishing a new one on our web site.
8.3. We may change any other part of your customer contract, including our price list, by informing you of the change.
8.4. You can change your customer contract at the expiration of the minimum term if we agree.
8.5. Otherwise, changes to any other part of a customer contract take effect when we inform you of the change.
8.6. Where you are in a fixed term contract changes only apply at the expiry of your contract, unless the law requires us to make these changes before then.
What rights and obligations survive termination?
9.1. When a customer contract or this agreement ends:
9.1.1. a right of action that arises from a breach that occurred before it ended survives;
9.1.2. we can invoice and recover any charges for products and services that were delivered before it ended;
9.1.3. clauses 9, 14, 18, 25, 26, 31 and 38 continue to operate; and
9.1.4. any other clause in the customer contract that indicates that the clause survives termination also continues to operate.
How do you order services?
10.1. We may receive an order in any form we choose e.g. by written application, on line, or over the telephone.
10.2. You must comply with any ordering procedures that we specify e.g. if we ask you to use a particular order form, you must do so.
10.3. We are not obliged to accept any order.
10.4. You must ensure that you provide us with all the information we request in relation to your order1 and that the information you provide is correct.
What other terms, etc apply?
Except for those things set out in express terms in a customer contract, and things that are implied by law and cannot be excluded, there are no other representations, promises, warranties, covenants or undertakings between the parties and customer contracts contain the entire understanding between us.
What if we supply a mixture of services?
If we supply a mixture of services, prices and service terms that would apply to the different services if ordered separately apply to each of them individually within the mixture.
How are Charges, invoicing, and payment dealt with?
13.1. We may charge you, and you must pay us, in accordance with our price list.
13.2. Set up charges are payable as soon as we agree to provide a service.
13.3. Periodic or repeating charges are payable from the date when we inform you that we are ready to supply the service, whether or not you actually make use of the service.
13.4. All other charges are payable on invoice.
13.5. When a customer contract is terminated or otherwise ends:
13.5.1. we may immediately invoice any accrued charges (but later invoicing remains effective);
13.5.2. our invoices must be paid immediately; and
13.5.3. we have a lien over any customer equipment for unpaid charges.
13.6. We may invoice you whenever charges have accrued, but we normally invoice by ‘billing months’. A ‘billing month’ is a month, starting on the same day of the month that your customer contract started
13.7. If we hold your advance deposit, Direct Debit Authority, or Credit Card Authority, we may draw payment as soon as a charge has accrued.
How are invoice payments dealt with?
14.1. You must pay our invoices within 7 days by means of a payment method of which we approve.
14.2. Apart from our other rights in case of non-payment, we may suspend any services and/or charge interest and or a one-off fee for late payment.
14.3. Interest will be calculated at the rate which is 2 percentage points higher than the ANZ Bank unsecured overdraft rate for sums of over $100,000, calculated daily with rests.
14.4. If your payment is dishonoured then we may pass on our bank’s dishonour fees to you.
How are billing disputes dealt with?
15.1. You may dispute charges in an invoice by written notice that:
15.1.1. you give to us within 14 days of the date of the invoice;
15.1.2. clearly identifies you and the invoice you dispute;
15.1.3. details the grounds of your dispute.
15.2. We will acknowledge your notice within 14 days of our receipt of your notice.
15.3. You must still pay the disputed invoice by its due date. If we uphold your dispute, we shall credit your account within a reasonable time.
What are Minimum terms?
If a customer contract has a minimum term:
16.1. you cannot cancel it during the minimum term (except in specific cases where these terms say otherwise);
16.2. after that, either of us may cancel it by giving the other party at least 30 days’ written notice, ending at the end of a billing month; and otherwise
16.3. it continues until one of us cancels it.
What are repeating terms?
17.1. If a customer contract has a repeating term, it serially repeats for that term unless one of us gives the other written notice that they do not wish to repeat it.
17.2. If a notice under clause 17.1 is given less than a month before the end of the current term, it takes effect at the end of the next term, not the end of the current term.
How is GST dealt with?
18.1. Except where express provision is made to the contrary, the consideration payable by the customer under this agreement represents the value of any taxable supply for which payment is to be made.
18.2. Subject to us supplying you with a valid tax invoice, if we make a taxable supply for a consideration, which represents its value, then you will pay, at the same time and in the same manner as the value is otherwise payable, (or, if for any reason that does not happen, without delay after we request you to) the amount of any GST payable in respect of the taxable supply.
18.3. Subject to us supplying you with a valid tax invoice, if this agreement requires you to pay, reimburse or contribute to an amount paid or payable by us in respect of an acquisition of a taxable supply from a third party, the amount required to be paid, reimbursed or contributed by you will be the value of the acquisition by us less any input tax credit to which we are entitled plus, if our recovery from you is a taxable supply, any GST payable under clause 18.2.
What conditions apply to domain names?
Where we provide you with domain name registration services you must comply with all auDA published policies and guidelines and any conditions which our wholesale supplier of domain name services requires.
Will we provide support for services?
20.1. We will support a service as specified in the customer contract.
20.2. We are not obliged to support a service in any way that is not specified. For instance, unless a customer contract states otherwise, we are not obliged to provide:
20.2.1. on-site support;
20.2.2. software or hardware support; or
20.2.3. support outside business hours.
20.3. If a customer contract includes a service level guarantee, we will provide support in accordance with it.
What effect do Acceptable Use Policies have?
You must comply with any AUP we publish, as amended from time to time.
What are your other obligations?
22.1. be responsible for all data that you retrieve, store, transmit, or use in any other way;
22.2. back up all of your data;
22.3. maintain the security of your password and user identification;
22.4.1. do anything which will damage or interfere with our network / system or facilities;
22.4.2. do anything unlawful with a service;
22.4.3. share a service with any third party without our written consent; or
22.4.4. do anything with a service which may subject either you or us to a claim.
22.4.5. disclose passwords or identifications to any third party.
How can we suspend services?
23.1. We may suspend service under a customer contract without notice and without any liability for loss and without prejudice to our rights under the customer contract or at law if:
23.1.1. we suspect that your service has been accessed without authority, or the integrity of the your service has been compromised;
23.1.2. we suspect that your service has been used for unlawful purposes;
23.1.3. you have not paid money you owe us;
23.1.4. we consider it necessary to protect our network / system or facilities;
23.1.5. you or a guarantor has an adverse credit report;
23.1.6. you are in breach of any clause of your customer contract including the AUP;
23.1.7. a governmental or law enforcement agency asks us to do so;
23.1.8. a wholesaler requires us to do so;
23.1.9. we consider that unless we do so, there is an unacceptable risk that there will be a breach of a law or of an agreement between us and a wholesaler; or
23.1.10. you have changed your contact details without informing us.
23.2. Suspension does not affect your liability for charges under your customer contract.
23.3. Unless the reason or circumstance that caused the suspension is resolved to our satisfaction within 7 days, we may terminate your customer contract.
How can a customer contract be terminated?
24.1. A customer contract can only be terminated:
24.1.1. on notice by either party, given after its minimum term has expired. Such a notice takes effect at the end of the next billing month that occurs at least 30 days after the notice was given; or
24.1.2. in accordance with clauses 24.2, 24.5 or 17; or
24.1.3. in any other way that the customer contract allows.
24.2. We may terminate your customer contract/s immediately if you:
24.2.1. become insolvent;
24.2.2. are subject to an application for winding up;
24.2.3. are subject to any form of external administration or management;
24.2.4. fail to pay us money within 14 days of it being due;
24.2.5. breach a customer contract and fail to remedy the breach within seven days after receiving a notice requiring that it be remedied;
24.2.7. have provided false or misleading information to us – and in any other circumstances where the customer contract allows us to.
24.3. If we terminate a customer contract because you have breached it, you must pay us, on invoice, the charges that would have been payable under that customer contract if it had not been terminated until after any minimum term.
24.4. If you have more than one customer contract, and you breach one of them, you are in breach of all of them. We can terminate any or all of your customer contracts, or exercise any other rights we have under a customer contract.
24.5. You may terminate your customer contract/s immediately if we:
24.5.1. become insolvent;
24.5.2. are subject to an application for winding up; or
24.5.3. are subject to any form of external administration or management.
How are Warranties and liability dealt with?
25.1. To the extent permitted by law we:
25.1.1. will provide services with reasonable care and skill but do not warrant that they will be provided without fault or disruption;
25.1.2. do not provide a service level guarantee or any guaranteed service level unless the customer contract states otherwise;
25.1.3. do not provide a warranty for hardware provided under a customer contract (unless we are required by law to do so), but we will (where capable of assignment) assign the benefit of any manufacturer’s warranty to you.
25.2. Except for any express warranties in a customer contract, to the extent permitted by law we disclaim all express and implied warranties in relation to a service or a customer contract.
25.3. In the case of any breach of a customer contract, or any negligence for which we are responsible, or breach of a condition or warranty that legislation prohibits us from excluding (which condition or warranty shall accordingly be included), our liability to you will be limited, at our option, to:
25.3.1. if the breach or negligence relates to goods –
220.127.116.11. replacement of any goods involved or the supply of equivalent goods;
18.104.22.168. the repair of such goods;
22.214.171.124. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
126.96.36.199. the payment of the cost of having the goods repaired; and
25.3.2. if the breach relates to services –
188.8.131.52. supplying of the services again; and
184.108.40.206. the payment of the cost (for the period of the breach) of having the services supplied again.
25.4. In no circumstances are we liable for any indirect, secondary or consequential loss or loss of income that you or anyone else may suffer.
What indemnities do you give us?
You indemnify us (on a full indemnity basis including all legal costs and expenses) against any claim, loss or damage we suffer to the extent that it arises from:
26.1. any act or omission;
26.2. any breach of any law;
26.3. any breach of a customer contract or an AUP;
26.4. any unauthorised use of a service – by you or anyone using a service we provide to you.
Who is responsible for the safety of data and set up?
27.1. Unless a customer contract specifies that we will create a back up of any data and/or customised software set up of yours, you are solely responsible for ensuring that you have a complete, working back up of them.
27.2. We are entitled to assume that you have complied with clause 27.1.
27.3. You indemnify us against loss or damage that you or anyone else suffers as a result of damage to data or customised software set up on your computer system.
27.4. We are not obliged to provide you or any third party with historical data (e.g. material that used to be stored on our server).
27.5. You do not have any rights to any particular user identification, password, customer number, IP address, or any other thing which we may provide as part of a service. We can change or direct you to change these at anytime.
27.6. We are not required to store any email or data in accounts that are not active3, and we are not responsible for any loss or damage because of this.
What about matters you acknowledge?
28.1. A customer contract may state that you acknowledge certain matters.
28.2. You must accept service from us subject to those matters, and none of them constitutes a defect in service.
28.3. You release us from all losses and claims in respect of, or out of, such matters or their consequences.
Will we monitor your system?
Unless a customer contract states otherwise, no service is provided on the basis that we will:
29.1. monitor your computer system or any part of it;
29.2. follow up or review any issue once it has been attended to;
29.3. update, upgrade or patch anything in future;
29.4. notify or remind you about anything in future.
What if we supply equipment or software to you?
30.1. If we sell any equipment to you:
30.1.1. we retain title to and ownership of that equipment until you have paid for it in full;
30.1.2. risk of loss or damage passes to you when it is delivered to your premises;
30.1.3. you must fully insure it from the time of delivery and maintain the insurance until you obtain title, and failing that until the equipment is delivered up to us;
30.1.4. you must not:
220.127.116.11. mortgage, charge or encumber the equipment (that you purchase from us) without our written consent; and
18.104.22.168. loan, rent, licence, transfer or assign or part with possession of the equipment without our written consent; unless you have paid us in full.
30.2. If we provide any third party software to you, then:
30.2.1. we do so subject to the licence terms and conditions that apply to that software; and
30.2.2. you are solely responsible for ensuring the suitability and compatibility of the software.
30.3. If you use software not distributed or approved by us, you acknowledge that it may result in interference to the service or it may result in loss, which we are not responsible for;
How must confidential information be treated?
31.1. Each party must treat the confidential information of the other party as confidential and commercially valuable and ensure that its representatives do the same.
31.2. You consent to us accessing your information and data for legitimate purposes to provide the service, improve the service or respond to complaints. The terms of clause 31.1 apply to this clause.
What laws must you observe?
You must observe all laws of Australia in relation to your use of our services. How is Privacy dealt with?
32.2. We may use your personal information for promotional and marketing purposes until you request to opt out of receiving such information.
32.3. For the purposes of clause 32.2 and anything else in this agreement, you consent to receiving emails from us.
What if there is force majeure?
We are not responsible for the consequences of force majeure.
How are notices given?
34.1. A notice under this agreement must be written and signed by the party giving it and sent to a party’s valid address or personally delivered.
34.2. A party’s valid address is any of:
34.2.1. in the case of a corporation, its current registered office;
34.2.2. the last:
22.214.171.124. fax number;
126.96.36.199. business address;
188.8.131.52. email address; the party notified as its address for service of notices to the party giving the notice.
34.3. A notice is deemed to have been given:
34.3.1. if hand delivered to a business address between 9 a.m. and 4:45 p.m. on a business day – on delivery;
34.3.2. if hand delivered to a business address other than between 9 a.m. and 4:45 p.m. on a business day – at 9 a.m. on the next business day;
34.3.3. if posted by ordinary mail — at 10 a.m. on the third business day next following posting;
34.3.4. if faxed between 9 a.m. and 4:45 p.m. on a business day – when the sender’s fax machine issues a successful transmission notification;
34.3.5. if faxed other than between 9 a.m. and 4:45 p.m. on a business day – at 9 a.m. on the next business day, subject to the sender’s fax machine having issued a successful transmission notification;
34.3.6. if emailed – the earlier of:
184.108.40.206. receipt by the sender of return notification that the message has been read, and
220.127.116.11. 10 a.m. on the next business day subject to the sender not receiving a delivery failure notification.
34.4. For the purposes of this agreement:
34.4.1. our current valid addresses (unless we tell you otherwise on our website www.netstart.com.au) are:
18.104.22.168. our fax number – 1300 789 376
22.214.171.124. our business address – 22b Beulah Rd, Norwood, South Australia, 5067
126.96.36.199. our email address – email@example.com; (director)
34.4.2. your current valid addresses are those contained in your most recent service order, unless you advise us otherwise in writing.
How can rights be waived?
No right under a customer contract can be waived except by notice in writing signed by the party waiving it. If a party overlooks a breach by the other party on one or more occasions, it is not taken to have agreed to any future breach.
Can this agreement be assigned?
36.1. You may not transfer your rights or obligations under a customer contract to or share them with anyone without our prior written consent.
36.2. We may transfer our rights or obligations under this agreement to or share them with anyone on notice to you.
Can we obtain a credit check?
37.1. You authorise us to do the things set out in this clause 37 and acknowledge that we may do so, whenever we see fit for as long as a customer contract continues or you owe us any money.
37.2. We may use a credit report (within the meaning of the Privacy Act
1988 (Commonwealth)) on you to assess your creditworthiness or for debt recovery purposes.
37.3. We may give to a credit reporting agency any information we have about you to enable us to obtain a credit report.
37.4. We may exchange information about you with other credit providers or a credit reporting agency.
37.5. You acknowledge that we are authorised to do the things set out in this clause 37 under the Privacy Act 1988 (Commonwealth) and that to assess or review your creditworthiness, we may: (a) request a third party to report about your creditworthiness; and (b) disclose financial, credit and other information about you to any person.
37.6. You must cooperate with any enquiries that we make about your creditworthiness and provide any further information, consent or authority we reasonably require.
How is severance dealt with?
If any provision in this agreement is unlawful or inconsistent with any law, then to the extent of the unlawful nature or inconsistency, that provision may be severed from without affecting the remainder of the agreement.
What law applies to this agreement?
This agreement and any customer contract is governed by the law of South Australia, Australia. Subject to clause 32, any legal proceedings relating to them can only be taken in courts with jurisdiction in South Australia.
What if time expires on a holiday?
Anything that can or must be done on or before a day that is not a business day can be done on the next business day.
Who pays government charges?
You must pay stamp duty and other government charges in relation to a customer contract.
How is this agreement interpreted?
In this agreement or a customer contract, unless the context indicates otherwise:
42.1. Dictionary the expression: means: auDA .au Domain Administration Ltd or such successor that is responsible for the administration of the .au TLD AUP our Acceptable Use Policies billing dispute a dispute or difference between us as to whether you are liable to pay an amount that we have invoiced to you billing month has the meaning given by clause 13.6 Netstart Netstart Pty Ltd ACN 111 018 154 business day any day from Monday to Friday inclusive, excluding any public holidays observed in South Australia business hours between 8:30 a.m. and 5 p.m. on a business day claim any demand, or allegation of liability, and all related costs, claims, demands, liability, damages, losses and expenses of any nature including all legal expenses suffered or incurred confidential information any information of a party which the other party knows or should know is confidential to the other party, for as long as it remains confidential, or would have remained confidential except for a wrongful disclosure by the first party core terms this document customer has the meaning given by clause 2 customer equipment server/s and associated equipment and, where they are connected to telecommunications services provided by a carrier, those connections dictionary this table of defined terms disputed amount in relation to a billing dispute means the amount within the relevant invoice that you dispute liability to pay excess use charge a charge for use of a service in excess of any base allowance fixed service fees fees for any service that apply on a once only basis, or on a periodic basis and are not variable based on data volumes as between periods force majeure an event or circumstance beyond our reasonable control general dispute any dispute or difference between us other than (a) a billing dispute or (b) a claim by us solely for the payment of money GST GST within the meaning of the GST Act GST Act A New Tax System (Goods and Services Tax) Act 1999 (as amended) loss any harm, losses or expenses of any nature whether direct or indirect, secondary or consequential suffered by you or anyone else manufacturer’s warranty a warranty given by the manufacturer or distributor of a thing, or a person from whom we obtain a thing for resupply minimum term a period that we specify as such office hours between 9 a.m. and 5 p.m. on a business day periodic fee a fee payable at regular intervals e.g. an amount per monthpersonal information the same thing as in the Privacy Act 1988 price list our published list of fees and charges from time to time customer contract the documents indicated by clause 6 service description a guide or description we publish, describing a service we offer, as amended from time to time service terms has the meaning given by clause 4 repeating term a period that we specify as such representative a delegate, authorised representative, employee or agent service any service that you request and we agree to supply, generally as described in a service description set up charge a charge that we describe as such, or any charge that we require to be paid in respect of the set up or establishment of a service undisputed amount in relation to a billing dispute means the amount within the relevant invoice that you do not dispute liability to pay wholesaler a third party whose services we utilise in providing a service to you
42.2.1. If an expression is defined in the dictionary in clause 0, that is what it means.
42.2.2. If an expression is defined in the dictionary, grammatical derivatives of that expression have a corresponding meaning. (For instance, if “to colour” means “to paint red”, then “coloured” means “painted red”.)
42.2.3. Headings and footnotes are only for convenience. They are to be ignored when interpreting the agreement.
42.2.4. A schedule to a document is part of that document.
42.2.5. A reference to the singular includes the plural and vice versa.
42.2.6. Where one thing is said to include one or more other things, it is not limited to those other things.
42.2.7. There is no significance in the use of gender-specific language.
42.2.8. A “person” includes any entity which can sue and be sued.
42.2.9. A “person” includes any legal successor to or representative of that person.
42.2.10. A reference to a law includes any amendment or replacement of that law.
42.2.11. Anything that is unenforceable must be read down, to the point of severance if necessary.
42.2.12. Anything a party can do, it may do through an appropriately authorised representative.
42.2.13. Any matter in our discretion, including anything that we “may” do, is in our absolute and unfettered discretion.
42.2.14. Expressions in clause 18 in italics have the same meaning as in the GST Act.
42.2.15. Apart from the matters set out in black and white in a customer contract, we are not obliged to provide any service, and make no promise or representation, to you.