Standard Form of Agreement, Opticomm Services

Fear Enterprises Pty Ltd (ABN 91 635 762 711), trading as Digital Soul Australia, is referred to as "we", "us" or "Digital Soul". The customer is referred to as "you". Opticomm Pty Ltd, the operator of the Opticomm network, is referred to as "Opticomm". The Opticomm network is Opticomm's network, and Opticomm is not a party to this agreement.

Important things to know before you order

This agreement covers internet services we supply over the Opticomm network. It does not cover nbn services or Digital Soul's own fixed wireless network (DSA fixed wireless), which have their own agreements.
The service is internet only. It cannot make voice calls, including calls to Triple Zero (000 or 112). Keep a mobile phone or another way to reach emergency services.
The service stops in a power outage unless you have suitable backup power. Priority Assistance is not available. If someone at the premises may need it, use a provider that offers it.
Plans are month to month and prepaid. Your first month is paid when you order and held as a prepayment. It is applied only from the day the service becomes operational, and refunded in full if the service never does. After that the month ahead is charged to your card on the 18th of each month.
If a renewal payment fails, the unpaid future month is not supplied and does not become a debt. We give required notices and consider payment assistance before ending service.
A no fault found charge applies where a fault we lodge with Opticomm is found not to be on the Opticomm network or in Opticomm's equipment and the cause is in your equipment or wiring. We tell you the amount before we lodge a fault, and you accept it separately each time. It can never apply to a network or provider fault.
There are no condition charges on Opticomm plans. Some once-off charges can apply, such as a new development charge or a new connection charge. Your CIS states each amount.
You can cancel at any time with no cancellation fee. Your service runs to the end of the month you have paid for, or you can choose an earlier date and we refund the unused days.
The plan speed is the maximum for the tier, not a typical speed. Where your premises is connected over in-building copper (Fibre to the Building), we test the line within 20 Working Days after it becomes operational and provide the remedies in clause 9.3 if it cannot support the selected plan.
Before a transfer, we record your authority and express consent for the identified address, and explain the effect on your current service.
The Opticomm equipment at your premises belongs to Opticomm. Its technicians need access to install and repair it, and a person aged 18 or over must attend an appointment.
Your CIS has the price, inclusions, numerical typical evening speed and maximum charges for your plan. Read it with this agreement.

1. About this agreement

1.1 This is our Standard Form of Agreement for Opticomm services supplied to consumers and Small Business Customers. Your agreement with us is made up of: (a) these terms; (b) the Critical Information Summary (CIS) for your plan; (c) your application and our written Order Confirmation; and (d) our Acceptable Use Policy.

1.2 If there is an inconsistency, the CIS for your plan prevails over these terms for pricing and inclusions, and these terms prevail over the Acceptable Use Policy. The Privacy Policy, Payment Assistance Policy and Complaints Handling Process explain how we handle those matters but do not exclude or reduce any right or obligation under this agreement or law.

1.3 Nothing in this agreement excludes, restricts or modifies any right or remedy you have under the Australian Consumer Law or any other law that cannot be excluded, restricted or modified by agreement.

1.4 This agreement applies to consumers and Small Business Customers on the same plans. Where a clause applies only to one, it says so.

2. The service

2.1 The service is a data only broadband service delivered over the Opticomm network to the Opticomm network termination device at your premises. Opticomm owns and operates the Opticomm network and the Opticomm equipment at your premises. We obtain Opticomm services through a wholesale provider and supply them to you.

2.2 The service does not include voice calling and cannot be used to call emergency services (Triple Zero 000 or 112) at any time. You must keep another means of contacting emergency services, such as a mobile phone.

2.3 The service will not work during a power outage at your premises unless you have backup power for the Opticomm equipment and your router. Priority Assistance is not available on this service. If you or someone at your premises may require Priority Assistance for a life threatening medical condition, you will need a service from a provider that offers it, such as Telstra.

2.4 The service is supplied on a best efforts basis. The speed tier is a maximum, and typical evening speeds are published in the CIS with the basis stated. Speeds, availability and fault response or repair times are not guaranteed unless we expressly say otherwise. The Customer Service Guarantee does not apply to broadband. Fault repair on the Opticomm network is performed by Opticomm, and clause 12.4 sets out the targets that apply. Mandatory statutory remedies and any express service remedy in this agreement or your CIS continue to apply; an outage credit or other remedy is not wholly discretionary where the Australian Consumer Law or another law requires it.

2.5 Information we give you about Opticomm technologies, service qualification and wholesale speed tiers may be based on information from Opticomm or our wholesale provider. We remain responsible for statements made by us or our representatives and for supplying the service under this agreement and applicable law.

2.6 Your service uses shared public addressing (carrier grade NAT) by default. If you need your own public IPv4 address, a static IP address is available as a monthly add on once your service is active, at $10 a month inc GST, as stated in your CIS.

2.7 The technology used to deliver the service at your address is determined by Opticomm. Opticomm supplies Fibre to the Premises at most premises, and HFC, Fibre to the Building or Fibre to the Building Wireless at some. We tell you the technology at your address, from service qualification, before you order. Opticomm may change the technology or speed tier at your premises after you order. If the change is detrimental to you, we tell you as soon as we know, you may cancel without charge, and we refund any unused prepayment. Once your service is active, clause 13.3 applies to the change. Clause 8 explains plan changes you can choose.

3. Who can order, and applications

3.1 Home plans are for use at a single residential premises. Business plans are the same plans supplied to a business at a single business premises. A business must provide its business name and a valid, active ABN at application, and the person ordering confirms that they are authorised to order for the business.

3.2 The service must be used only at the premises to which it is delivered. It must not be used to provide backhaul, transit or aggregation for another premises or network, and must not be resold. This is a condition of our wholesale supply, and we may take steps under clause 13 to stop any such use.

3.3 You must give us accurate and complete information, including the account holder's date of birth where our current wholesale provider requires it to provision and manage the service. We tell you why it is collected and who receives it at or before collection. We may decline an application where information is incomplete or inaccurate, or where a previous account with us remains unpaid. The service is prepaid in the sense that a future billing month is not supplied unless its monthly plan charge is paid; clauses 10.2 and 10.3A explain when charges are taken and what happens if payment fails.

3.4 You must have authority to order the service at the premises and to permit Opticomm to install, alter and maintain its equipment there. If you are not the owner of the premises, you must obtain the owner's consent before ordering, and you warrant to us that you have done so.

4. Service qualification, your order and conditional supply

4.1 Every order is subject to service qualification of your address, which we obtain from Opticomm through our wholesale provider. Qualification tells us the technology, the speed tiers Opticomm supports at the address, the condition of the Opticomm equipment or line there, whether a technician visit is needed, and any once off charge that applies. We show you what it means for your order before you pay.

4.2 The agreement is formed on the Agreement Date, when we issue your written Order Confirmation. The Order Confirmation identifies your plan, price, connection type, any technician appointment, and any once-off charge accepted. At order your first monthly plan charge is paid and held as a prepayment; clause 10.2 says when it is applied and when it is refunded.

4.3 Connection is performed by Opticomm. Our obligation to supply the service is subject to: (a) Opticomm confirming the address is serviceable on a technology we sell; (b) Opticomm accepting our order and, where a visit is needed, an appointment being available and kept; (c) Opticomm being given the access to your premises it requires; and (d) any once off charge disclosed before you paid remaining the charge that applies. We place your order promptly, pass on Opticomm's appointment or expected activation timing, and keep you informed of material changes. Connection timing is set by Opticomm and is not guaranteed by us.

4.4 If Opticomm declines, cancels or cannot complete our order, or a condition in clause 4.3 cannot be satisfied, either of us may cancel this agreement before the Operational Date. Where we cancel, we will act reasonably and tell you why. No plan charge applies for a service not provided. We refund the prepayment and any other amount paid for a service not provided within 10 business days.

4.5 You may withdraw your order at any time before the Operational Date. A once-off charge already and reasonably incurred because of the withdrawal, for example a late-cancelled appointment charge disclosed and accepted in advance, may be payable under clause 10.4. Otherwise no charge applies, and we refund the prepayment and any other amount paid for a service not provided within 10 business days.

4.6 Where Opticomm reports that your address is not yet serviceable, we will tell you the ready for service date Opticomm gives and will not take your order until then, unless you ask us to hold it.

4.7 Opticomm may reject, delay, reschedule or vary an order for reasons outside our control, including network faults, incomplete infrastructure, access problems, safety or weather. Where that happens we will tell you promptly, and clause 4.4 applies if the order cannot be completed.

5. Connection, technician appointments and access to your premises

5.1 Depending on the technology and the equipment at your address, your connection is one of: plugging your router, modem or gateway into Opticomm equipment already installed; or a visit by an Opticomm technician. Your Order Confirmation says which.

5.2 Where a technician visit is needed you choose an appointment window from those Opticomm offers. Someone aged 18 or over must be at the premises for the whole window, must give the technician safe access to the places the work requires, and must be able to make decisions about where equipment is placed. Appointment windows are set by Opticomm and the technician may arrive at any time within the window.

5.3 A charge applies where an appointment is missed, where nobody eligible is home, where access is refused, or where you cancel or change an appointment with less than the notice stated in your Order Confirmation. The amount is in clause 10.4 and your CIS and you must pay it. You can change an appointment with us without charge up to two business days before the window.

5.4 Opticomm's technicians and contractors follow Opticomm's safety and work practices. You must tell us before the visit about anything at the premises that affects safe access, including animals, hazardous materials, restricted areas or site induction requirements. A business must give us its site access details when it orders. If a technician cannot work safely, the visit may end and clause 5.3 may apply.

5.5 Standard installation is the work Opticomm performs to connect a standard premises, apart from the new development and new connection charges in clause 10.4. Opticomm may charge for supplemental or non standard work, for example extended cabling, difficult access or work outside standard hours. We will tell you the price before any such work is done and you may decline it, in which case clause 4.4 applies if the service cannot be connected.

5.6 You authorise Opticomm and its contractors to alter, attach to or remove facilities at the premises as Opticomm reasonably requires to connect and maintain the service, and to install Opticomm equipment in a location the technician reasonably chooses in consultation with the person at the premises.

5.7 You must give Opticomm and its contractors safe and timely access to your premises for as long as you have a service with us, to install, maintain, upgrade, repair, replace or remove Opticomm equipment or the Opticomm network. Where Opticomm needs access for planned work we will pass on Opticomm's notice. Where we pass on information from Opticomm that is needed for the supply of your service, you must act on it.

6. Equipment

6.1 The Opticomm equipment at your premises is owned by Opticomm at all times. On Fibre to the Premises, Opticomm supplies and owns the network termination device in your home, together with its associated cabling and items. You do not obtain any right, title or interest in Opticomm equipment. You must not sell, relocate, move, alter, open, interfere with or remove Opticomm equipment, and you must take reasonable care of it, keep it powered where it needs power, and keep it free from damage. On HFC, Fibre to the Building and Fibre to the Building Wireless, we tell you before you order what equipment is needed at your premises and whether we supply it.

6.2 If Opticomm equipment is lost, stolen, missing or damaged because of something you, or a person you permitted at the premises, negligently or deliberately did or failed to do, Opticomm may charge us its replacement charge and we may recover from you the amount Opticomm actually charges us, up to $379.50 inc GST, and we give you the evidence of it. You are not responsible for fair wear and tear, an equipment fault, work by Digital Soul, Opticomm, our wholesale provider or their technicians, or an event outside your reasonable control.

6.3 On cancellation, Opticomm equipment stays at the premises unless Opticomm tells us it must be removed, in which case you must allow access for its removal.

6.4 You may bring your own router. It must be compatible with the technology and speed tier at your address, and you are responsible for it, for its configuration beyond the settings we publish, and for your in-premises network beyond it. If you bring your own router, before the agreement is formed we tell you that some post-migration testing may not be available and obtain your express confirmation that you wish to proceed on that basis. Our setup guide is on our website.

6.5 If you buy a router from us, we choose a router suited to your plan and set it up for our service before it ships. The price is $299 inc GST, as stated in your CIS, and is paid when you order. It is yours from the date of delivery and comes with the consumer guarantees under the Australian Consumer Law. Damage caused by misuse, power events or modification is not a failure to meet those guarantees.

6.6 You are responsible for supplying mains power to the Opticomm equipment and your router, and for the security of your network and the devices on it.

7. Moving your service to us from another provider

7.1 If you have an active Opticomm service at your address with another retail provider, you may ask us to move it to us. Before we submit the transfer, we obtain your express consent for the identified address, record your authority to act for the account holder, and tell you that the current service will end on transfer and that your current provider may charge you. You give us the address of the service and you authorise us to request the transfer from Opticomm, through our wholesale provider, on your behalf.

7.2 You confirm that you are the account holder with your current provider for the service being transferred, or are authorised by the account holder. We validate the address information available to us before submitting the transfer. Do not cancel the existing service yourself before the transfer. Any charge your current provider validly applies for ending your contract with them is between you and them. We do not charge for a move to us. The Opticomm transfer notice, a separate document you accept at the review step, applies.

7.3 A transfer does not usually need a technician visit. We tell you the expected date when we place the order and notify you when the transfer completes. Where Opticomm cannot match the address to an active service, we tell you and ask you to correct it or choose a new connection instead. If we cannot complete the move, we refund any amount you have paid within 10 business days (clause 4.4).

7.4 If a transfer is made in error or without authority, we promptly ask Opticomm to reverse it, cooperate with the losing provider and keep you informed. If you did not authorise a transfer to us, tell us immediately using the complaints contact in your CIS.

8. Changing your plan, and upgrades

8.1 You can change to any plan available at your address at any time. An upgrade takes effect within one business day and is pro rated. A downgrade takes effect from your next billing month. There is no change fee.

8.2 No condition charges. There are no condition charges on Opticomm plans. You can change plan or cancel at any time without one.

8.3 Speed changes. A change of speed tier is free, and we do not charge you for it.

8.4 Equipment change. A change of technology or speed tier may need equipment to be replaced. Opticomm performs any replacement of its equipment at an appointment as part of your order. Any charge for the replacement is shown before you pay.

8.5 If Opticomm changes the technology or speed tier at your premises, clause 2.7 applies.

8.6 A plan change, upgrade or add on is a new order with Opticomm and is subject to clauses 4 and 5.

9. Speeds and the line speed check

9.1 The speed you experience depends on the technology at your address, the condition of the line or signal, Opticomm's network, your router and Wi Fi, the devices you use and the sites you connect to. The plan name states the Opticomm wholesale speed tier. The tier is the maximum possible speed off peak, not a typical speed and not a promise for your address.

9.2 Before you order we show you Opticomm's estimate of the speed your address can reach, where Opticomm provides one. On Fibre to the Building, that estimate is a range based on the line to your premises. Where a plan is faster than Opticomm's estimate, we tell you before you choose it.

9.3 If qualification shows your premises is connected over in-building copper (Fibre to the Building), we check the speed your line actually achieves within 20 Working Days after the Operational Date and tell you the result within 5 Working Days after completing the check. If the line cannot support the plan you chose, we offer: (a) a move to the highest suitable lower plan at the lower price, with a prompt refund or credit of the price difference from the Operational Date; or (b) cancellation without charge, with a prompt refund of any unused prepayment and any amount paid for service not provided as represented. You may keep the higher plan only after we explain the result and you give informed agreement to a lawful alternative remedy. This clause does not limit your rights under the Australian Consumer Law.

9.4 The typical evening speed for your plan, and the basis for it, are stated in the CIS. The speed tier is a maximum, and the speed you experience at other times may be lower.

9.5 We publish a numerical typical evening speed for each plan using current, substantiated speed data that is reasonably representative of the service, including reliable wholesale data where appropriate. We review and update the figure when it is no longer representative. The CIS must contain the current figure before the offer is published; we do not defer publication merely because we have not yet collected enough measurements from our own retail customers. Until we have enough of our own measurements, the figure is based on the typical evening speeds our wholesale network provider publishes for the same Opticomm speed tier or, where it publishes none, on published industry figures for the same tier, and the CIS states that basis.

10. Charges, billing and payment

10.1 Your monthly charge is set out in your CIS. Prices include GST. For business customers the CIS also shows the price excluding GST.

10.2 The service is prepaid by calendar month. Your first month is paid when you order and held as a prepayment. It is not a charge for the service before the service works: on the Operational Date it is applied pro rata to the rest of that month and any balance is credited to the next month. If the service does not become operational, we refund the prepayment in full within 10 business days (clause 4.4). No other recurring charge is taken before the Operational Date.

10.3 After the Operational Date, the charge for each following calendar month is taken from the card on your account on the 18th of the preceding month, less any credit. You agree to that charge date when you order. A router or properly disclosed once-off charge that you expressly accept may be charged when ordered or incurred. We email you a tax invoice for each charge.

10.3A You must keep a valid payment method on your account while you have a service with us. If a renewal payment fails, we tell you, make reasonable retry attempts and give any notice required by law before the service ends at the end of the last paid period. The charge for an unpaid future month does not become a debt and does not attract a late payment fee because that future month is not supplied. We do not suspend or cancel for an amount genuinely in dispute, contrary to our Payment Assistance Policy, or while an agreed payment assistance arrangement is being complied with.

10.4 The following once-off charges may apply, and every amount includes GST: (a) a new development charge of $300, where the premises is in a new development and has never been connected; (b) a new connection charge of $330, or $550 where the premises has a master antenna television outlet; (c) supplemental or non standard work, quoted before any work is done; (d) a missed appointment or late cancellation charge of $99.55; (e) a no fault found charge of $56.65 where no technician attends, or $152.35 an hour with a minimum of 2 hours and a maximum of 4 hours where one does (minimum $304.70 and maximum $609.40 inc GST), only where clause 12.2 is satisfied; (f) an Opticomm equipment replacement charge of up to $379.50, only where clause 6.2 applies; and (g) a quoted charge for equipment modification or removal you request. Each current amount is stated in the CIS, or where the amount cannot be known in advance the CIS says how it is worked out, and it is disclosed before you take the step that attracts it. We do not charge a set up or activation fee on a standard connection or on a move to us. If a paid charge is not incurred, we refund it in full.

10.5 We do not charge a card surcharge. Paying by card is free of charges from us. Payment dishonour and late payment charges, if applied, are limited to reasonable costs we actually incur, are disclosed before they apply, and do not apply to an unpaid future prepaid month. A paper bill fee is subject to any legal exemption and is waived where a free electronic bill is not reasonably accessible to you.

10.6 An undisputed once-off charge that has been properly disclosed, accepted and incurred remains payable after the service ends. A monthly plan charge for a future period that is not paid is not supplied and does not become a debt. We may recover only reasonable, lawful recovery costs and do not recover an amount that is genuinely disputed while the dispute is being handled.

10.7 By providing payment details you authorise us to take recurring monthly plan charges and other amounts that this agreement says may be charged automatically. A general card authority does not authorise a no fault found charge: clause 12.2 requires separate, express acceptance after we explain how the charge is worked out. You must keep your payment details current, and each invoice shows the amount and relevant charge date.

10.8 We may change charges only for a reason stated in clause 18.1 and after giving at least 30 days' written notice. If a change is detrimental to you, you may cancel before it takes effect without cancellation or downgrade charge, and we refund any unused prepayment.

11. Your use of the service

11.1 You must comply with our Acceptable Use Policy, Opticomm's acceptable use policy, which we publish on our website and give you before the agreement is formed, all laws, and lawful and reasonable directions we give you about the service. Opticomm's acceptable use policy applies to every service on the Opticomm network, and Opticomm may suspend or limit a service for a breach of it. Your responsibility is limited to use you authorised or use that occurred because you failed to take reasonable steps to secure the connection; it does not extend to unauthorised use despite reasonable security or to loss caused by our negligence or breach.

11.2 You must not use the service in a way that damages, interferes with or degrades the Opticomm network, our wholesale provider's network, our network, or the equipment or services of any other person, and must not attempt to gain unauthorised access to any network or system.

11.3 You must comply, and take reasonable steps to ensure users comply, with lawful and reasonable operational directions that Opticomm or our wholesale provider requires us to pass on, but only after we communicate the direction clearly and give reasonable time to comply unless urgent action is necessary.

11.4 Opticomm and our wholesale provider may act on a service used in breach of Opticomm's acceptable use policy or the use restriction in clause 3.2 (single premises, no resale, and no backhaul or aggregation for other premises), including shaping, suspending or refusing further orders for the service. We may do the same, and we will take the steps we reasonably consider necessary to stop and prevent such use as soon as practicable after becoming aware of it.

12. Faults, maintenance and support

12.1 Report faults to our customer service contacts in your CIS. Before you report a fault, check that the Opticomm equipment is powered and connected and that your router is set as our setup guide describes; we will ask you to do this. We test your service from our side and, where the fault is on the Opticomm network, lodge it with Opticomm and manage it for you.

12.2 A no fault found charge applies, at the amounts in clause 10.4, where a fault we lodge with Opticomm is found not to be on the Opticomm network or in Opticomm's equipment and our remote tests and Opticomm's findings show the cause is in your equipment or wiring. Before we lodge a fault we complete reasonable remote testing, tell you the charge that may apply and obtain your separate, express acceptance of it. You accept it separately each time we lodge a fault. If you do not accept the charge, we do not lodge the fault, no charge applies, and you can make a complaint under clause 16. The charge never applies where the fault is in our, our wholesale provider's or Opticomm's network, service or equipment. We provide evidence of the basis and amount with the invoice.

12.3 Opticomm performs planned maintenance and upgrades on its network and may need to interrupt your service to do so. Notice of planned maintenance may be short, and emergency work may have no notice. Where we receive notice we will pass it on, and our notice to you cannot be longer than the notice Opticomm gives us. Outages, planned or not, that are outside our control are not a breach of this agreement by us, but this does not limit your rights under the Australian Consumer Law.

12.4 Fault rectification timeframes are targets set by Opticomm, not guarantees. The target is 5pm the next business day where no site visit is needed or the premises is urban, the second business day where a site visit is needed, and the third business day for a remote premises. Priority Assistance and business grade service levels are not available, and the Customer Service Guarantee does not apply. Any credit or other remedy required by the Australian Consumer Law, another law, or an express term of this agreement remains available.

12.5 Our support hours and contacts are in your CIS. We support the service to the Opticomm network termination device at your premises and help you connect a router we supplied. Your own equipment and in premises network are your responsibility.

13. Suspension, cancellation and withdrawal

13.1 You may cancel the service at any time, effective at the end of your current paid period or on an earlier date you choose. No cancellation fee applies. If you choose an earlier date, we refund the unused days of the period you have paid for, worked out by the day, within 10 business days after the service ends, less any lawful and properly disclosed amount already incurred. No condition charge applies.

13.2 We may suspend or cancel the service where: (a) you materially breach this agreement and do not remedy the breach after reasonable notice; (b) an undisputed amount other than an unpaid future prepaid month remains unpaid after all notices and payment-assistance steps required by law; (c) required by law, a regulator, Opticomm or our wholesale provider; (d) reasonably necessary to protect safety or network integrity, or stop unlawful use; (e) you or a person at the premises threatens, abuses or harasses staff or a technician; or (f) the underlying service is suspended, withdrawn or ceased. Unless urgent action is reasonably necessary, we first give the notice and opportunity to remedy required by law and consider any request for payment assistance.

13.3 Where Opticomm or our wholesale provider suspends, changes or withdraws a product, speed tier or service, we may make the corresponding change, suspend the service or cancel it. If the action could adversely affect you, we give at least 30 days' written notice where reasonably possible and a genuine right to cancel before it takes effect without cancellation or downgrade charge. We refund any unused prepayment.

13.4 We may withdraw a plan or cease providing the service on at least 30 days notice. No charge applies and we refund any unused amount paid in advance.

13.5 On cancellation you must pay only charges lawfully incurred to the effective cancellation date. We may take an accepted amount from the payment method on your account; if it fails, only that properly incurred amount remains owing. Clause 6 continues to apply to Opticomm equipment.

14. Consumer guarantees and liability

14.1 Our services and goods come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service you are entitled to cancel the service and obtain a refund for the unused portion, or to compensation for its reduced value, and to compensation for reasonably foreseeable loss or damage. For goods, you are entitled to a replacement or refund for a major failure and to compensation for reasonably foreseeable loss or damage.

14.2 Nothing in this agreement excludes liability or a remedy that cannot lawfully be excluded, including compensation for reasonably foreseeable loss recoverable under the Australian Consumer Law.

14.3 For goods not ordinarily acquired for personal, domestic or household use, and only where section 64A of the Australian Consumer Law permits and the limitation is fair and reasonable, our liability for failure to comply with a consumer guarantee is limited, at our election, to replacing the goods, supplying equivalent goods, repairing the goods, paying the cost of replacement or acquisition of equivalent goods, or paying the cost of repair. For services in that category, the permitted limitation is, at our election, supplying the services again or paying the cost of having them supplied again.

14.4 To the extent permitted by law: (a) neither party is liable for indirect or consequential loss that is not an ordinary and direct consequence of the breach; no category of loss, including profit, revenue, data, business or opportunity, is automatically treated as consequential; (b) for Small Business Customers only, our aggregate liability arising under or in connection with this agreement in any 12-month period is limited to the charges you have paid us under this agreement in the 12 months before the claim; and (c) liability is reduced to the extent the other party caused or contributed to the loss. The exclusions and cap do not apply to non-excludable liability, personal injury or death, fraud, wilful misconduct, breach of confidentiality or privacy, or liability that it would be unfair or unreasonable to limit.

14.5 Opticomm and our wholesale provider are not parties to this agreement and do not owe contractual obligations under it. We do not exclude or limit any statutory right or cause of action you may have directly against either of them. We remain responsible to you for our obligations as the retail service provider.

14.6 You acknowledge the matters in clauses 2.2 to 2.5 and that the service should not be relied upon where a failure could cause harm that a backup arrangement would prevent.

14.7 Clause 6.2 exclusively governs your responsibility for Opticomm equipment. You are otherwise responsible for direct loss we suffer to the extent it is caused by your proven negligent or unlawful act or omission, subject to law and our duty to mitigate. You do not indemnify us for personal injury, loss caused by us or our suppliers, or remote or unforeseeable loss.

15. Payment assistance

15.1 If you are having difficulty paying or may be unable to pay on time, contact us. Our Payment Assistance Policy is published on our website and explains the free assistance options, how to apply, how we assess a request and how to complain. We comply with that policy and applicable financial hardship rules before taking credit-management action.

16. Complaints and disputes

16.1 Our Complaints Handling Process is published on our website. For a complaint made by telephone, in person or by live chat, we acknowledge it immediately; for email, post or another recorded channel, within 2 Working Days. We propose a resolution within 10 Working Days, or within 2 Working Days for an urgent complaint, and implement an agreed resolution within 5 Working Days unless you agree otherwise or the law permits a different period. If we cannot resolve your complaint, the Telecommunications Industry Ombudsman provides free, independent dispute resolution: 1800 062 058, tio.com.au.

17. Privacy

17.1 We collect, use and disclose personal information in accordance with our Privacy Policy and any collection notice provided when information is collected, including to qualify your address, provision and support the service, arrange appointments and bill you.

17.2 To supply the service we disclose only the personal information reasonably required by Opticomm and our wholesale provider, which may include your name, service address, contact details, date of birth where required, and site-access information. Our collection notice and Privacy Policy name our current wholesale provider as the recipient, explain the purpose and consequences of collection, and are updated if the recipient changes. Opticomm, the wholesale provider and their contractors may use the information to connect, maintain and repair the service and arrange work at the premises.

18. Changes to this agreement

18.1 We may vary these terms where reasonably necessary to comply with law; reflect a supplier change on which the service depends; protect network security or integrity; reflect a material third-party cost change; correct an error; or improve the service without material detriment. We give at least 30 days' written notice of a variation that may adversely affect you, explain the change and your options, and provide a genuine right to cancel before it takes effect without cancellation or downgrade charge. A detrimental change does not take effect for you during that notice period, and we refund any unused prepayment if you cancel.

19. General

19.1 We may assign this agreement as part of a genuine business transfer only where the successor assumes our obligations and the transfer does not materially reduce your rights. We will give reasonable notice. We may use contractors to perform our obligations. You may not transfer the agreement without our consent, which we will not unreasonably withhold.

19.2 Notices may be given by email to the address on your account, by SMS, through your bill or by another method you agree to. You must keep your contact details current. Nothing in this clause permits a method of notice or a notice period shorter than a mandatory statutory requirement.

19.3 If part of this agreement is unenforceable, the rest remains in force.

19.4 This agreement is governed by the laws of Western Australia.

20. Definitions

20.1 Agreement Date means the date we issue the written Order Confirmation. Australian Consumer Law or ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth). Business Customer means a customer acquiring the service wholly or predominantly for business use. CIS means the Critical Information Summary for your plan. Network termination device means the device at your premises where the Opticomm network ends and your router, modem or gateway connects. Operational Date means the date the service is activated on the Opticomm network and is available for you to use, rather than merely showing an administrative active status. Opticomm means Opticomm Pty Ltd, the operator of the Opticomm network. Opticomm equipment means the equipment Opticomm installs at or supplies to your premises to deliver the service, including a network termination device and associated cabling, but not equipment we supply. Opticomm network means the private fibre network Opticomm owns and operates. Order Confirmation means our written acceptance identifying the service, plan, price, connection type, any appointment and any charge accepted. Service means the Opticomm service described in clause 2 and your CIS. Small Business Customer means a Business Customer to whom the protections for small businesses under the Australian Consumer Law apply. Transfer means the move of an active Opticomm service at your address from another retail provider to us, as described in clause 7. Wholesale provider means the carriage service provider through which we acquire Opticomm services for supply to you. Working Day has the meaning given in the applicable telecommunications consumer rules and excludes weekends and public holidays at your service address.

Opticomm is a trade mark of Opticomm Pty Ltd. We are not affiliated with or endorsed by Opticomm.