1.

Definitions and Interpretation

1.1

Service means the provision of services to access and/or utilise the Internet including services to host webpages on its servers and to provide electronic mail accounts and any other services as may be introduced and provided by BWC.

1.2

(b) Including and include are not to be treated as words of limitation.

2.

Fees and Charges

2.1

From the Commencement Date, the Customer will pay the fees and such other charges relating to the Service or this Agreement at the rates indicated in the Application or such other rates as may be prescribed by BWC from time to time. Fees are payable at or within the times stated in any invoice issued by BWC and are non-refundable.
BWC will charge a late payment fee on each invoice that is more than 1 month overdue, this fee is shown on the web site on the pricing page.
All accounts will have access denied if the fee remains unpaid after the due date, email will still be collected but the user shall not be able to access the email account, web serving shall continue.
Any account that remains unpaid after 3 months shall have all services attached to that account stopped until the amount owing is paid.
A reconnect fee shall be imposed on all suspended accounts which are more than 1 month overdue.

2.2

2.3

BWC must be notified by email to accounts@biway.com.au or by fax when a payment is made by Electronic Funds Transfer or Direct Deposit. The notice will give the deposit date, amount and receipt number.
If you fail to advise BWC of you payment and your account goes into arrears then BWC will not be responsible for the service suspension, normal charges will still apply. For customers who will be using an automated payment system, i.e. periodical payments or a permanent EFT transaction, you will only be required to advise as to the date and amount to which the payments will be paid.

2.4

Customer will pay to BWC such security deposits as BWC may require and will pay additional deposits if required by BWC.

2.5

Customer must pay Fees even if Customer disputes the Fees. In the event that a dispute is decided by BWC in Customer's favour, BWC will refund to Customer any excess amount paid by Customer free of interest.

2.6

If multiple log-ins are made by any users via Customer's account, Customer must pay on demand to BWC additional Fees as if such users had signed up individually with BWC.

2.7

Customer must pay on demand to BWC any Fees incurred by any unauthorised or illegal log-ins.

2.8

Customer must pay and will indemnify BWC against any charges incurred as a result of the use or purported use (whether authorised or unauthorised) of Customer's account including international and local telecommunications charges.

2.9

All Fees and other amounts payable by Customer under this Agreement are subject to Goods and Services Tax ("GST"). All taxes payable including GST will be borne solely by Customer as of post 30 June 2000. Where charges are paid in advance, the portion of charges relating to this post 30 June 2000 will be subject to GST.

2.10

Customer must pay all telecommunications charges (including STD charges if applicable) for use of Service. BWC does not assess what telecommunications charges apply to the location from which customers connect to a BWC Point of Presence.

2.11

If a credit card number has been supplied for billing purposes, this is taken as permission to bill this card for any money owing to the ISP.

3.

BWC will maintain a 'no busy signal policy' dependant on all suppliers, modems and access servers functioning correctly.

4.

(f) not share the Service with any person without the prior written approval of BWC and will use the Service only for the purpose for which it is subscribed.

5.

Security

5.1

As information transmitted through the Internet is generally not confidential, BWC does not guarantee the protection of Customer's privacy. Customer will take all necessary measures (including changing Customer's password from time to time) to protect the secrecy of Customer's User Identification ("UI") and/or password. BWC is not liable for any loss suffered by Customer or any third party due to any wrongful or fraudulent use of Customer's account by Customer or any other person.

5.2

Where a UI is necessary to access the Service, Customer will use only Customer's own UI.

5.3

Customer does not acquire rights to any mailbox number, the UI, IP address, circuit reference and any codes assigned to Customer by BWC and BWC reserves the right to change or re-assign the same to Customer at its sole discretion without being liable to Customer for any loss suffered by Customer.

5.4

BWC will not perform system backups on information stored within its system. BWC is not responsible or obligated to provide historical data or to assist Customer in downloading, faxing or reading to Customer any of Customer's electronic mails.

5.5

If at any time Customer requests BWC to reset Customer's password, Customer must immediately reset that password to a new password.

5.6

Customer must immediately notify BWC of any unauthorised use of Customer's account or any other breach of security known to Customer.

6.

Software

6.1

Subject to clause 4, if BWC provides software for use with the Service, Customer is responsible for ensuring that it is suitable for Customer's needs (including its compatibility for use with the Customer's equipment)

6.2

Subject to clause 4, BWC is not responsible for software not distributed, approved or recognised by BWC including software downloaded from the Internet. If Customer uses such software in connection with the Service, BWC will not be liable for any fault, loss and/or damage resulting directly or indirectly from such use.

7.

Changes in Service

Customer may change the usage plan at any time. The effective date of such change will be the first day of the calendar month subsequent to the Customer's notice.

8.

Termination

8.1

Customer may terminate this Agreement at any time in writing. A minimum of 1 week is required.
The cancellation will take effect on the last day of the customer's invoicing cycle following the 1 week notification.
ADSL Services cancelled will not be entitled to a refund of the unused portion. BWC may at any time terminate this Agreement at any time with prior notice to Customer.

8.2

(e) (where Customer is a corporation) if Customer becomes insolvent, subject to administration or receivership or ceases to carry on business or is subject to anything having a similar effect.

9.

Liabilities of Customer upon Termination

9.1

If this Agreement is terminated pursuant to clause 8, Customer will be liable for all Fees up to and including the expiry date of the relevant Minimum Subscription Period or the termination date stated in the termination notice, whichever is later. These Fees are payable by Customer within 30 days of termination.

9.2

BWC may use any security deposits paid by Customer and Customer credit card supplied for billing to offset any amounts due from Customer under this Agreement or any other agreement between BWC and Customer, and any remaining balance will then be refunded to Customer free of interest.

9.3

Indemnities given by Customer and Customer's obligations of confidentiality survive the termination of this Agreement.

10.

Suspension of Service

10.1

(b) where any Fees payable by Customer are overdue or any deposit or increase in Fees required by BWC is not paid by Customer.

10.2

Upon Suspension, the Service will be deemed to be terminated and Customer will be liable for all Fees up to the date of Suspension and if the Minimum Subscription Period has not expired, Customer will be liable for all Fees up to the end of the relevant Minimum Subscription Period. Customer will also be liable for any reminder fees invoiced by BWC following Suspension and prior to any termination of this Agreement pursuant to clause 8 at rates prescribed by BWC.

10.3

BWC may, in its discretion, reconnect the Service or service(s), as the case may be, in which event this Agreement will be deemed to continue as if it had not been terminated. BWC reserves the right to impose on Customer a reactivation fee and such other fees as it deems appropriate.

11.

Support

BWC may, but is not obligated to, provide Customer with on site technical support. BWC does not guarantee such support and will not be liable for any loss or damages to equipment, software, information incurred by Customer in connection with such support. BWC reserves the right to impose charges for support services provided to Customer. BWC's invoice will be evidence of Customer's request for such services. BWC will only provide support for equipment which is approved by the relevant statutory authority such as Austel for modems.

12.

Disclaimer

12.1

BWC is not liable for any loss of information caused as a result of any interruption, suspension, or termination of the Service, or for any information available, received or transmitted through the Service.

12.2

(b) in the case of goods, the lowest of the cost of replacing the goods, acquiring equivalent goods or having the goods repaired.

12.3

(e) the Customer's use or inability to use the Service, any software provided to Customer or any disclosure of any information concerning Customer's account and particulars or for any error or inaccuracy in that information disclosed.

12.4

Customer must not and must ensure that Customer's associates and any other persons under the control or direction of Customer do not, hold liable or make any claim or take any action against BWC or any Provider for any act or omission by or on behalf of any Provider in connection with the Service.

12.5

BWC makes no warranty representation or regarding any advertiser, goods, software or services purchased or obtained through the Service or any transactions entered into through the Service. Customer's participation in promotions of advertisers is solely between Customer and such advertiser and BWC is not liable for any loss or damage incurred as a result of such dealings or the presence of such advertisers on the Service.

13.

Indemnity

Customer indemnifies BWC at all times against all claims, actions, proceedings, costs, expenses (including legal costs on a full indemnity basis), demands, liabilities, losses (whether direct, indirect or consequential) and damages which BWC may incur arising out of or pursuant to this Agreement or any use by Customer of the Service whether authorised or not authorised or any act or omission of Customer including any claims by Providers against BWC arising out of the provision of the Services.

14.

Confidentiality

14.1

Customer must not disclose to any person or use for any purpose any confidential information which comes to Customer's knowledge in connection with the Service or this Agreement.

14.2

BWC may collect, store, transfer and/or disclose to third parties, for any purpose (including where required by a credit reference provider or any Law), any information or data (whether confidential or not) relating to Customer's registration to the Service, use of the Service or this Agreement including data.

14.3

Upon written request by Customer, BWC must notify Customer of any data or information collected, stored, transferred and/or disclosed by it to a third party.

14.4

BWC may access Customer's content and other parts of the Service as necessary to identify or resolve technical problems or to respond to service complaints.

15

Variation and Waivers

15.1

BWC reserves the right to amend these terms and conditions any service plans of Fees at any time upon notice (in such form as may be determined by BWC) to Customer. Notice via electronic mail to the Customer's electronic mail addresses, by the posting on BWC's website and the Customer's continued use of or subscription to the Service will be sufficient notice for this purpose.

15.2

Any provision of this Agreement may be waived only if BWC so agrees in writing.

15.3

The failure of BWC to exercise any of its powers, rights or remedies under this Agreement will not constitute a waiver of those powers, rights or remedies.

16.

Assignment

Customer must not assign or agree to assign any right and must not delegate performance of any of its obligations under this Agreement.

17.

Force Majeure

If BWC is prevented by reason of any event or circumstance beyond its control and without the willful default or negligence of BWC (Force Majeure Event) from performing any of its obligations under this Agreement, it will not be liable to Customer for not performing, or for the manner of its performance of, such obligation to the extent which, and for the period of time during which, it is so prevented.

18.

Governing Law and Jurisdiction

This Agreement is governed by the laws in force in Victoria, Australia and each of Customer and BWC submit to the exclusive jurisdiction of the Victorian courts.

19.

Notices

19.1

Subject to clause 21.2 no communication from Customer may be effected by electronic mail or any other electronic media without the prior written agreement of BWC and will not be deemed received by BWC until such electronic communication has actually been received by a person designated by BWC to receive such communication.

19.2

Notices pursuant to clause 7 may be sent to BWC by electronic mail at info@biway.com.au and notices pursuant to clause 8.1 may be sent to BWC by electronic mail at accounts@biway.com.au.

20.

Severability

If any provision of this Agreement is prohibited, invalid or unenforceable that provision will be ineffective to the extent of the prohibition, invalidity or unenforceability without invalidating the remaining provisions of this Agreement.

21.

Legal Costs

Customer will be liable for and indemnifies BWC against all costs and expenses (including legal costs on a full indemnity basis) which BWC may incur or pay in protecting or enforcing any rights under this Agreement (including Customer's failure to pay Fees).

22.

Entire Agreement

This Agreement constitutes the entire agreement between BWC and the Customer. No understanding, arrangement or provision not expressly set out in this Agreement will bind the parties.