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LIVEPORT AUSTRALIA PTY LTD

ACN 155 896 772

GENERAL TERMS AND CONDITIONS

1. ENTIRE AGREEMENT


These General Terms, together with an Order Form and Service Schedule(s) (if any), represent the entire agreement between Liveport and the Host (Agreement) and supersedes all prior discussions, negotiations, understandings and agreements in relation to the Services.


If there are any inconsistencies between the documents that form the Agreement, the order of precedence is the Service Schedule, these General Terms and then the Order Form.


2. INTERPRETATION


In these General Terms:


2.1. headings, bold type and square brackets are for convenience only and will not affect interpretation of the Agreement;


2.2. words in the singular include the plural and words in the plural include singular, according to the requirements of the context;


2.3. a reference to a legislation or other Law includes delegated legislation and consolidations, amendments, re-enactments or replacements of any of them;


2.4. a reference to any of the words "include", "includes" and "including" is read as if followed by the words "without limitation";


2.5. Act means the Telecommunications Act 1997 (Cth);


2.6. Annual Service Fee means the annual service fee for the Services specified in an Order Form;


2.7. Business Day means a day that is not a Saturday, Sunday or public holiday in Victoria;


2.8. Early Termination Fee is described in clause 24;


2.9. End User means any of the Host's end-users of the Service;


2.10. Equipment means hardware or other equipment, together with any related parts, handbooks, instructions, manuals, drawings and other non-consumable items (whether supplied by Liveport or not);


2.11. Event of Default occurs where


    2.11.1. the Host fails to pay any sum payable under this Agreement by the due date for payment;


    2.11.2. the Host breaches any provision of this Agreement and the breach is not capable of remedy;


    2.11.3. the Host breaches any provision of this Agreement which is capable of remedy and fail to remedy the breach within 7 days of the date of a notice from Liveport demanding that the breach be remedied;


    2.11.4. any step is taken (including without limitation, an application made, proceedings commenced, or resolution passed or proposed in a notice of meeting) for:


        2.11.4.1. the Host's winding up, dissolution, or administration; or


        2.11.4.2. the Host entering into any arrangement, compromise or composition with or assignment for the benefit of the Host's creditors or any class of them, except for the purposes of a solvent reconstruction or amalgamation;


    2.11.5. a receiver, receiver and manager, or other controller, administrator or similar officer is appointed with respect to, or takes control of, the Host or any of the Host's assets and undertakings; or


    2.11.6. in Liveport's reasonable opinion there has been a material adverse change in the Host's financial position since commenencet of a Service including, without limitation, as a result of a change in the value, nature or saleability of the Host's assets;


2.12. Fees means the fee(s) and charge(s) in respect of a Service, as described in clause 16;


2.13. General Terms means these general terms and conditions.


2.14. GST means GST within the meaning of the GST Act;


2.15. GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time);


2.16. Host means a customer of Liveport that has executed an Order Form;


2.17. Individual Service means a particular Service ordered and supplied under an Order Form;


2.18. Intellectual Property Rights means all forms of intellectual property rights which may subsist anywhere in the world, whether protected at common law or under statute, including, without limitation, patents, petty patents and utility marks, right in designs, trade marks, signs and service marks, trade and business names, copyrights (including rights in computer software), database rights, semiconductor topography rights and rights in circuit layout designs, whether or not registered and including applications for registration of any such thing;


2.19. Liveport means Liveport Australia Pty Ltd ACN 155 896 772;


2.20. Liveport Hardware means any equipment or personal property owned by Liveport and/or provided by Liveport to the Host for use in connection with the Services, other than Purchased Equipment listed in an Order Form to be supplied by Liveport to the Host by outright sale as described in clause 6;


2.21. Location means the location of a Host listed in an Order Form;


2.22. Network Connection Fee means the network connection fee specified in an Order Form or an invoice issued to the Host by Liveport;


2.23. Order Form means a current and executed Order Form between the Host and Liveport;


2.24. Order Withdrawal Charge means a charge that is the sum of:


    2.24.1. all costs incurred by Liveport in respect of the Individual Service(s) being cancelled by the Host; and


    2.24.2. all costs committed to by Liveport in respect of the Individual Service(s) being cancelled by the Host, up to and including the date on which the Host provide Liveport written notice (in the manner and form required by Liveport) that the Host is cancelling an Order Form;


2.25. Purchased Equipment means any Equipment which the Host purchases from Liveport under or in connection with the Services equipment, other than the Liveport Hardware as specified in an Order Form;


2.26. Refund Policy means Liveport's refund policy (as amended from time to time);


2.27. Services means the services that Liveport offers from time to time as specified in an Order Form and/or as described in a Service Schedule;


2.28. Service Schedule(s) means the service descriptions for any Services available on the Site;


2.29. Site means www.liveport.com.au;


2.30. Third Party Provider means a carrier (as defined in the Act, carriage service provider (as defined in the Act) or an equipment supplier, other than Liveport; and


2.31. Third Party Services means those products from Third Party Providers that may rely on:


    2.31.1. Third Party Provider networks;


    2.31.2. equipment, infrastructure, and services provided by a third party (whether or not that third party has an agreement or understanding with the Host) including a Third Party Provider;


    2.31.3. the Host's network and infrastructure; and


    2.31.4. the Host's Equipment.


3. SERVICES


3.1. The Host may request Services, in which case Liveport will complete and forward an Order Form to the Host. Each Order Form:


    3.1.1. shall constitute a separate agreement between the parties in relation to the Services specified in the Order Form;


    3.1.2. has effect on and from the date of its execution and continues until the expiry date as specified in that Order Form or its earlier termination in accordance with the Agreement; and


    3.1.3. shall be subject to the terms and conditions of the Agreement.


3.2. If for any reason Liveport cannot provide the Service or the additional Service quantity in accordance with an Order Form, Liveport will notify the Host in writing.


3.3. The Services under the Agreement may mean the installation of High-Speed Internet Access network at the Location permitting internet access to End Users or such other services outlined in an Order Form.


3.4. Subject to clause 4, Liveport will use reasonable care and skill in performing its obligations under the Agreement and warrants that the Services and Purchased Equipment are of acceptable quality and will materially confirm to the relevant specifications unless stated otherwise in an Order Form.


3.5. The Host agrees to provide complimentary room(s) to Liveport technicians for overnight stays when requested in advance and necessary.


3.6. The Host agrees to use the Services in accordance with this Agreement, the Service Schedules (if applicable) and all applicable laws.


3.7. The Host acknowledges and agrees that:


    3.7.1. if it withdraws or cancels an Order Form before Liveport has completed provision of the Service(s), the Host will be liable for and must pay Liveport an Order Withdrawal Charge;


    3.7.2. it is prohibited from selling Services to any End User or third party;


4. THIRD PARTY PROVIDERS


4.1. The Host acknowledges and agrees that:


    4.1.1. some designated Services rely on Third Party Services and due to reason's beyond Liveport's control, a defect or failure in one or more Third Party Services may cause a delay, failure or interruption to a Service;


    4.1.2. Liveport is not liable to the Host in any way for any loss (including consequential loss) that the Host may incur or suffer as a result of any such delay, failure or interruption described in clause 4.1.1.


    4.1.3. the Host will comply with all reasonable directions given by Liveport as are necessary for Liveport to comply with its obligations under any agreement with a Third Party Provider;


    4.1.4. Liveport or a Third Party Provider may:


        4.1.4.1. at any time, restrict or prevent the right of any third party providing or using telecommunications services through the network;


        4.1.4.2. be required by law, to retain metadata, information and other content in relation to the Host's use of Services which relies on a Third Party Service, intercept the Host's communications and pass on details of the Host's use of the Services (including any retained metadata, information and content) to a Government agency, a law enforcement authority or other authority; and


        4.1.4.3. investigate any alleged misuse of a Service rely on a Third Party Service by the Host including where requested, or directed to do so by a Government agency, a law enforcement authority or other authority.


4.2. To the extent permitted by law, Liveport makes no warranties or guarantees of any kind, and does not bear any liability to a Host in relation to Third Party Services.


5. SECURITY


5.1. For Third Party Services, from time to time and for any reason, Liveport may request that the Host provide security (Cash Deposit).


5.2. If the Host does not provide the Cash Deposit within 5 Business Days of the request then, notwithstanding anything in this Agreement and without liability, Liveport can cease, refrain and/or refuse to supply some or all of the Third Party Services to the Host in which case Liveport's obligations under this Agreement will become conditional upon receiving that Cash Deposit within 5 Business Days of the request.


5.3. For the avoidance of doubt the request outlined in clause 5.1 may be made by Liveport prior to supply of any Third Party Services to the Host.


5.4. Any Cash Deposit provided under clause 5.1 will be held by Liveport on account of Fees payable by the Host pending supply of the Third Party Services by Liveport and any other amounts that may become payable by the Host under this Agreement.


5.5. Liveport may deduct the Fees and other amounts payable by the Host from the Cash Deposit in the event that the Host fails to pay such amounts by the due date for payment or this Agreement is terminated.


5.6. The Host must ensure that the original Cash Deposit amount is restored within 2 Business Days of any deduction by Liveport pursuant to clause 5.5.


6. EQUIPMENT


6.1. The Host acknowledges that the Equipment specified in an Order Form has been chosen based on Liveport's understanding the requirements of the Location and that in some circumstances the delivery of the Services may require alternative Equipment to be installed at the Location.


6.2. Liveport reserves the right to modify the amount and type of Equipment to be installed at the Location within 90 days following installation should Liveport determine that the Location characteristics require additional Purchased Equipment beyond what was initially anticipated. If Liveport modifies the Purchased Equipment in these circumstances, it may, by notice to the Host, modify the Annual Service Fee and the Network Connection Fee associated with the Service (and the Host may cancel the Order Form without penalty by notice to Liveport within 5 business days of receipt of notice of such increased charges).


6.3. The Host must ensure Purchased Equipment once installed is used in proper conditions that preserves the Purchased Equipment, is not damaged and remains in good condition, and in accordance with any directions of Liveport notified to the Host from time to time. The Host acknowledges that use of the Services involves Equipment that does not belong to Liveport and that is at the Location, and the Host will have to maintain and repair that Equipment.


6.4. Risk in the Purchased Equipment passes to the Host on installation and title to the Purchased Equipment will pass to the Host in payment in full of the relevant Purchased Equipment and installation charges.


7. LIVEPORT HARDWARE


7.1. Where Liveport provides the Host with Liveport Hardware, the provisions of this clause 7 apply.


7.2. The Host must use Liveport Hardware in accordance with any directions of Liveport notified to the Host from time to time.


7.3. The Host will ensure that the Liveport Hardware is not damaged and remains in good condition.


7.4. The Host must notify Liveport promptly on becoming aware of any damage to or malfunction of the Liveport Hardware or that any Liveport Hardware requires maintenance of any kind.


7.5. Liveport may, subject to giving reasonable notice and at Liveport's cost, change, modify, replace or remove the Liveport Hardware in its absolute discretion.


7.6. If Liveport has provided any Liveport Hardware to the Host then:


    7.6.1. the Liveport Hardware always remains the property of Liveport or the supplier (as the case may be);


    7.6.2. the Host will not enter into any agreement for the transfer, sale, mortgage, granting of any security interest or other dealing in connection with the Liveport Hardware;


    7.6.3. the Host will not do anything or authorise anything to be done which might affect Liveport's ownership of the Liveport Hardware;


    7.6.4. the Host will not, without Liveport's prior written consent, remove or obscure any identification marks on the Liveport Hardware;


    7.6.5. the Host will comply with all reasonable instructions Liveport gives the Host to protect Liveport's ownership of the Liveport Hardware;


    7.6.6. the Host will only use Liveport Hardware at the Location and will not part with possession of the Liveport Hardware except to provide it to Liveport;


    7.6.7. the Host will allow Liveport to and, where applicable, will ensure that a landlord or any other relevant third party allows Liveport to, enter and remove the Liveport Hardware from the Location upon expiry or termination of this Agreement;


    7.6.8. the Host shall not interfere with Liveport's removal of Liveport Hardware and may be asked to assist with the removal of Liveport Hardware back to Liveport should Liveport Hardware be easily accessible by the Host.


    7.6.9. subject to clause 7.6.7, the Host will return the Liveport Hardware to Liveport's possession as soon as practicable in accordance with any Liveport request to do so where the Liveport Hardware is no longer used by the Host or this Agreement has expired or is terminated.


    7.6.10. any Liveport Hardware not returned to Liveport shall be billed to the Host at current retail prices.


7.7. The Host bears the risk of loss or damage to the Liveport Hardware from the date of delivery of such equipment to the Location or when the Host picks it up and the Host indemnifies Liveport in respect of any such loss or damage.


7.8. Liveport may charge the Host, in accordance with our standard time and material rates and terms, for any repair, maintenance or replacement of Liveport Hardware which is required due to events other than normal wear and tear.


7.9. The Host will ensure that the Liveport Hardware, and any other Equipment, facilities and connections which the Host uses in connection with receiving the Service(s), is not altered, maintained, repaired or connected to, or disconnected from, any power source or line except by Liveport or our authorised contractors unless Liveport otherwise permits in writing.


7.10. The Host will make available an adequate power supply and environment (including air conditioning) for the operation of any Liveport Hardware.


7.11. The Host is liable to pay Liveport on demand any cost and/or expenses incurred in repairing or replacing the Liveport Hardware, or other property owned by Liveport or for which Liveport is liable, which is damaged or destroyed as a result of connection to the Host's network.


7.12. If any charge is payable for the Host's use of the Liveport Hardware, the Host will pay that charge in accordance with clause 16 of this Agreement.


8. HOST OBLIGATIONS


Under the Agreement, the Host has the following obligations in connection with the Agreement:


8.1. In the event that the Services include the provision of a high-speed internet connection (Connection) through a commercial Internet Service Provider (ISP), the Host is responsible for procuring a service with minimum downlink speeds of 50,000 Kbps, and minimum uplink speeds of 5,000 Kbps and to:


    8.1.1. abide by the terms associated with the ISP service.


    8.1.2. In the event that the Connection becomes absent due to the fault of the ISP, to use its best efforts to reconnect another high-speed internet connection through another ISP as soon as practicable;


    8.1.3. not turn off or disconnect the Services or Connection for any reason for the duration of each Order Form, unless instructed to do so by Liveport.


8.2. The Host shall provide an email and phone number for a Location representative that Liveport may contact in the case of a Service problem. The Host agrees to provide routine troubleshooting assistance upon Liveport's request within 24 hours of said request. Routine troubleshooting includes power cycling Equipment, changing cable ports in networking devices, and replacing pre-configured Equipment.


8.3. The Host will remove all network equipment currently still in place from the past provider. If the Host would like Liveport to remove these devices, an additional fee may be charged. This can be done after the completion of the Service installation.


8.4. Power in the MDF will need a dedicated circuit for the UPS (Uninterrupted Power Supply) system powering the core equipment.


8.5. Power in the IDF(s) will each need a dedicated circuit.


8.6. Access to install access points of the Host will be necessary and as easily accessible as possible. If escorts are required, then Liveport will need them available as determined by Liveport's project timeline.


8.7. Installation of wireless access points in ceiling locations will be completed prior to work on ceilings being completed or wireless access panels of sufficient size being available to install wireless access points.


8.8. In-room collateral will be provided via PDF to the property with information regarding access to the Services as well as support phone numbers. It will be the Host's responsibility to properly display and install this collateral following the completion of the Services.


8.9. It is assumed that complimentary lodging will be provided to the data technicians by the Host throughout the duration of the installation.


8.10. The Host is to provide complete and accurate information regarding the site to Liveport. The information provided to Liveport by the Host and/or third parties representing the interests of the Host are assumed to be correct. Deviations from the provided information including but not limited to locations of buildings, existing cabling types and/or placements, building composition, and floor plans may adversely affect the course and success of the installation and may require remedial action resulting in delays and or change order(s) to be billed to the Host.


8.11. The per room deal Service design is at Liveport's discretion. It will be to the professional Liveport standards and meet the required -70dBm coverage. If the property requests a change in the design there may be additional charges applied


8.12. The per room deal offered in the Agreement does not include any extended warranty. The warranties that come with the device at purchase will apply.


8.13. In addition, the Host will:


    8.13.1. adhere to Liveport's operational procedures and technical specifications (and Service Schedules) and any other reasonable directions given by Liveport in relation to the Host's obligations under this Agreement from time to time;


    8.13.2. not publish any material comparing the Services with any other wholesale services offered by any other Third Party Provider, carrier or carriage service provider;


    8.13.3. not do, or permit to be done, any act which damages the reputation of Liveport;


    8.13.4. not make any representation or give any warranty in relation to the Services that is inconsistent with written materials supplied by Liveport;


    8.13.5. provide Liveport with all information, assistance and co-operation reasonably requested by Liveport;


    8.13.6. ensure that all equipment that the Host connects to the Service is appropriate, adequately maintained and meets minimum technical standards determined by the Australian Communications Authority;


    8.13.7. not represent expressly or by omission or implication that the Host is approved by, an agent of, or affiliated with Liveport; and


    8.13.8. provide Liveport and/or its suppliers with full, free and safe access to the Location if required for Liveport and/or its suppliers to repair or restore the Services or in order for Liveport to exercise its rights under this Agreement; and


    8.13.9. be responsible for all information and data carried over the network as a result of the Host's or its personnel use of a Service.


9. RESPONSIBILITY FOR HOST SECURITY


The Host acknowledges and agrees that the Host is responsible for implementing and maintaining the security of the Host's network and Equipment. The Host is liable to pay all Fees in connection with the use of a Service resulting in a breach of the Host's security.


10. LIVEPORT OBLIGATIONS


Under the Agreement, Liveport has the following obligations where specified in an Order Form:


10.1. Liveport shall provide to the Host use of Equipment in order to provide real-time User network authentication, authorisation and accounting to End Users occupying any Location guest rooms and meeting facilities, and as provided in each Order Form. Liveport further agrees to handle Service monitoring and remote maintenance of the Services.


10.2. Liveport shall provide the Host with a web portal page that automatically appears when End Users connect to the Services and open up their web browser. This web portal page shall provide the ability for End Users to read an "Acceptable Usage Policy Agreement" and then approve these terms to be able to go to the internet. Liveport shall further provide the Host upon the Host's request a username and password requirement to be entered by the User before being allowed access to the internet.


10.3. Should any of the Purchased Equipment need to be replaced or repaired, Liveport will ship out replacement equipment at the Host's expense. Liveport will honor the full manufacturer's warranties of equipment that the Host purchased from Liveport and will only charge the Host for replacement of equipment should the equipment no longer be under warranty and its reasonable handling fees.


10.4. Liveport shall provide toll free telephone customer support to End Users at the Location, and to the Location staff, available 24 hours per day, 365 days per year. Liveport further agrees to provide email support. Liveport shall further provide instruction cards describing how End Users may connect to the Services, and the toll-free telephone customer service number. Liveport shall include up to three (3) instructions cards per guest room per annum at no cost to the Host.


10.5. With prior approval from the Host, Liveport may use and reproduce the Host name and the Location name (but not the trademarks, trade names and service marks associated with the Host Location) in connection with any marketing Liveport does for the Services. The Host agrees that Liveport may promote the Location to Liveport's roaming partners to help facilitate more End Users to access the Services. The above notwithstanding, no party shall issue a press release or otherwise publicly disclose the nature or contents of the Agreement without the prior written consent of the other party.


11. FAULT REPORTING


11.1. During the term of the Agreement, the Host must report any faults in accordance with the procedures advised to the Host by Liveport for fault reporting. The Host acknowledges and agrees that Liveport will only respond to faults reported in accordance with these procedures.


11.2. Liveport reserves the right to charge the Host at Liveport's then commercial rates for fault restoration services if Liveport responds to a request from the Host and Liveport is able to demonstrate that:


    11.2.1. the failure to provide the Service to the Host was not due to a matter for which Liveport is responsible; and


    11.2.2. the fact that Liveport is not responsible for that matter would have been disclosed upon reasonable investigation by the Host.


11.3. Liveport's fault restoration obligations do not extend to faults caused as a result of:


    11.3.1. any fault in Equipment, software or any network unit which does not form part of the Service;


    11.3.2. damage due to causes external to the facilities used by Liveport to provide the Service;


    11.3.3. interference;


    11.3.4. a Force Majeure Event; or


    11.3.5. planned outages.


12. CABLING


12.1. The Host must be ready for all data infrastructure to be installed. Liveport's preferred data cabler has allowed for a single trip to complete this project. Any additional expenses and/or trips or delays caused by Liveport will be billable as a change order.


13. AUTHORISATION


13.1. Each party represents to the other that it has the right to enter into the Agreement.


13.2. The Host represents to Liveport that it has the authority to obligate the Location to use the Services.


13.3. Each party agrees to comply with all applicable laws, ordinances and regulations required in performing the terms of the Agreement.


14. ASSIGNMENT


14.1. The Agreement may not be transferred or assigned by the Host without the prior written consent of Liveport by way of an Assignment Agreement in which reasonable consent shall not be withheld.


14.2. Liveport may freely transfer or assign the Agreement by notice to the Host.


14.3. The Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.


14.4. Should the Host sell and/or otherwise transfer ownership of and/or management of the Location, the Host must:


    14.4.1. notify Liveport as soon as practicable; and


    14.4.2. use reasonable endeavours to assign the benefit of the Agreement to the new owners (and Liveport will provide an assignment agreement in order to affect this transfer);


    14.4.3. if the incoming owner does not wish to continue the services, pay Liveport the relevant Early Termination Fee.


15. UNAUTHORISED USAGE/SYSTEM OVERLOAD


15.1. The Host must not, and use reasonable endeavors to ensure that its End Users do not:


    15.1.1. use the Services to menace another person, engage in sending mass or bulk messages, infringe another person's intellectual property rights, misuse confidential information, commit an offence or interfere with, disrupt or affect the availability of the Services or any other computer system;


    15.1.2. do anything that causes the Host or Liveport to breach the Agreement, or to breach a law; or


    15.1.3. use the Services in a manner which could interfere with the Services, Liveport Hardware or the network or equipment of another person (including any usage which Liveport reasonably considers to be excessive and impacting the capacity of the Services) (Unacceptable Use).


15.2. If it identifies Unacceptable Use, Liveport will endeavor to contact the Host in order to rectify the issue where reasonably possible to do so, however may immediately suspend access to the Services or Liveport's applications or give the Host a notice to stop the activities or conduct, or to take steps to remedy the Unacceptable Use.


15.3. Upon suspension, the parties agree to confer as soon as possible to determine what appropriate steps to take in reducing such unauthorized access so that the Services may be re-established.


15.4. Liveport may also suspend its services and software applications in the event that provision of those services becomes operationally, technically or administratively impracticable due to, but not limited to, system overload.


16. FEES


16.1. The Host must pay the fees specified in an Order Form and as set out in the Agreement (Fees), which may include:


    16.1.1. the Annual Service Fee;


    16.1.2. a one-time Equipment and Installation Fee for the Purchased Equipment; and


    16.1.3. a recurring Annual Support Fee described in the Order Form for the duration of the term of the Order Form.


16.2. Each month or unless otherwise set out in each Order Form, Liveport will generate an invoice to the Host describing the Network Connection Fee and any additional fees as applicable.


16.3. Payment is due on or before fourteen (14) days after the date of issue of an invoice.


16.4. Unless otherwise agreed, all payments shall be in Australian Dollars.


16.5. The Host agrees that it is responsible for any late fees when payment is received more than 14 days after the issue of an invoice in the amount of $25 per month, plus 1.5% of the outstanding balance each month after the first month.


16.6. Should the Host fail to pay any amount due on time, Liveport may by notice to the Host specifying that it will do so, suspend the Services as a means to assist in getting the account settled and current. In no way is this action considered a default or breach of the services agreed upon in the Agreement assuming Liveport re-actives the Services within 24 hours of the Host paying all amounts in arrears.


16.7. Should the Host fail to pay any amount due on time, Liveport may by notice to the Host specifying that it will do so, suspend the Services as a means to assist in getting the account settled and current. In no way is this action considered a default or breach of the services agreed upon in the Agreement assuming Liveport re-actives the Services within 24 hours of the Host paying all amounts in arrears.


16.8. The Host agrees and acknowledges that Liveport may pass on any increases or special/once-off Third Party Provider charges incurred by Liveport without notice where such charges impact the cost of supply of the Services to the Host.


16.9. If the Host requires Liveport to undertake any remedial work to repair a Services affected by a delay, failure or interruption in a Service that relies on a Third Party Service, Liveport may charge the Host, and the Host must pay, an additional charge for the remedial work that Liveport undertakes. An additional charge will be payable by the Host even if Liveport commences such remedial work and only discover, after commencing such remedial work, that the delay, failure or interruption to a Service was caused by a defect or failure inThird Party Services.


16.10. The Host will be liable for all Fees and charges, whether or not the Host authorised the particular use of the Services by another person, including charges resulting from a hacking incident (including a SIM, PABX, IP PBX or SIP gateway device hack) or other breach of security, viral infection of any computer or related equipment, attacks from the Internet, denial of service attacks, account/password misuse, SPAM and misuse of the Service by third parties.


17. GST


17.1. Expressions used in this clause have the same meanings as when used in the GST Act.


17.2. Unless otherwise stated in an Order Form, all Fees are stated in Australian dollars exclusive of GST.


17.3. If one party makes a taxable supply and the consideration for that supply does not expressly include GST, the party that is liable to provide the GST-exclusive consideration must also pay an amount equal to the GST payable in respect of that supply.


18. DISPUTES


18.1. Liveport and the Host agree that any and all disputes or controversies arising out of or relating to any interpretation, construction, performance or breach of the Agreement and the services offered by the parties shall be resolved exclusively by binding arbitration to be conducted in the State of Victoria, Australia in accordance with the Rules of the Institute of Arbitration Australia for the Conduct of Commercial Arbitrations.


18.2. Any decision of the arbitrator shall be final and may be entered as a judgment in a court of competent jurisdiction.


18.3. Liveport and the Host shall each pay one-half the costs and expenses of such arbitration, and each shall separately pay its respective counsel fees and costs.


19. CANCELLATION OF INDIVIDUAL SERVICE


19.1. The Host may cancel an Individual Service (other than a Third Party Service) at any time by giving Liveport two months' notice in writing and Liveport will endeavour to cancel the requested services on that date (although the Host acknowledges that if the services remain technically connected after the requested cancellation date the Host is responsible for any use of the Individual Service up to and including the last day it is actually used).


19.2. Liveport may charge an early termination charge if Individual Services are cancelled under this clause.


19.3. Notwithstanding any other condition contained in this Agreement between the Host and Liveport, Services relying on Third Party Services must be acquired for the minimum term specified in an Order Form (i.e. Initial Period). Relocation and early termination are not available with Third Party Services. If the Host breaches this clause, the Host must pay Liveport.


20. TERM OF AGREEMENT


This Agreement will commence on the Commencement Date and, unless terminated earlier in accordance with clause 23, will terminate automatically on termination of all Individual Services.


21. TERM OF SERVICE SCHEDULES


Any Service Schedule will remain in effect for as long as an Individual Service is being supplied by Liveport and acquired by the Host in respect of such Service Schedule.


22. TERM OF INDIVIDUAL SERVICES


22.1. In respect of any Order Form for Services which specified the relevant Initial Period, the Individual Service ordered under that Order Form will remain in effect for the Initial Period and will be automatically renewed for successive periods of one month each unless and until terminated:


    22.1.1. in accordance with clause 19; or


    22.1.2. otherwise in accordance with clause 23,


23. TERMINATION


23.1. The Host may terminate an Order Form or all or any Individual Service at any time by notice in writing to Liveport if there is a material breach of the Agreement in relation to an Individual Service and Liveport fails to rectify such breach within fourteen (14) calendar days of notice to do


23.2. If:


    23.2.1. the Host commits an Event of Default;


    23.2.2. the Host fails to provide to Liveport any Cash Deposit amount required under clause 5 within the period specified;


    23.2.3. Liveport believes it is necessary to do so to comply with any law or an order or request of any government or regulatory body, to protect any person, equipment or the Services and/or to attend to any emergency;


    23.2.4. Liveport is unable to supply, or continue to supply, the Host with the Services due to the cancellation, suspension or termination of any agreement with its suppliers or a Third Party Provider, for whatever reason;


    23.2.5. Liveport is unable to supply, or continue to supply, the Host with the Services for whatever reason (for example, due to geographical coverage, capacity or technical capability limitations); or


    23.2.6. a Force Majeure Event prevents either party from performing all or substantially all of its obligations under this Agreement (other than an obligation to pay money),


then Liveport may, in its absolute discretion, and without prejudice to its other rights and remedies:


    23.2.7. immediately cease, limit or suspend the supply of any Service temporarily or permanently without giving the Host prior notice; and/or


    23.2.8. immediately terminate this Agreement (including all Individual Services and all Order Form(s)) by notice in writing to the Host.


23.3. Liveport may, but is not obliged to, arrange for the suspension of a Service without notice to the Host in circumstances where Liveport reasonably suspects that there has been unauthorised use of the Services (including but not limited to, as a result of a hacking incident or fraudulent or illegal use).


23.4. For the avoidance of doubt, nothing in clause 20 limits the Host's obligations under clause 16.9.


24. EARLY TERMINATION FEE


24.1. If:


    24.1.1. the Host cancels a Service before the end of the minimum term specified on an Order Form; or


    24.1.2. Liveport terminates all or any Individual Services or the Agreement prior to the end of the minimum period in accordance with clause 23.2,


Liveport may charge the Host an Early Termination Fee equal to 100% of the Fees that would have been payable for the remainder of that minimum term, plus any unavoidable third party charges incurred by Liveport as a result of the cancellation, payable immediately at the time of termination.


24.2. The parties agree that the Early Termination Fee is a reasonable pre-estimate of the losses suffered by Liveport due to the early termination of the Service.


24.3. For the avoidance of doubt, the pricing for Third Party Services has been set based on the Host acquiring the Third Party Service for the full minimum period (i.e. Initial Period) nominated in the Order Form.


25. EFFECT OF TERMINATION


25.1. Upon termination of the Agreement:


    25.1.1. all Fees payable by the Host to Liveport will immediately become due and payable notwithstanding that the due date has not yet arisen and for any money not paid within 2 Business Days of the date of termination, the Host will be liable to reimburse Liveport for all reasonable legal costs and disbursements incurred by the other party in the recovery of such sums; and


    25.1.2. each party must immediately discontinue any use of the other party's confidential information (and must return and destroy such confidential information if directed to do so by the other party);


    25.1.3. as outlined in clause 7, Liveport shall remove any Liveport Hardware or personal property not listed as the Equipment in the Order Form from the Location.


25.2. Those clauses the survival of which is necessary for the interpretation of enforcement of the Agreement shall survive expiry or termination.


26. PRIVACY


What we collect and how we use and disclose your personal information is detailed in our Privacy Policy, which the Host should review and understand.


27. END USERS


27.1. The Host must ensure:


    27.1.1. its agreements with End Users include obligations relating to the use of the service no less stringent that the use obligations in the Agreement.; and


    27.1.2. it uses all reasonable endeavours to ensure that all End Users of each Service comply with clause 8 as if any reference to "the Host" were a reference to each "End User".


27.2. Liveport shall include as part of the Services a click-through agreement which shall provide that the User agrees that its access and usage of the internet is a privilege and that if such access and usage is not satisfactory, then customer's sole remedy is to discontinue such assess and usage.


27.3. The Host must ensure that all End Users shall agree that the parties and their licensors (if any) shall not be liable for any loss, injury, claim, liability or damage of any kind in connection with access or usage of the internet.


28. ACCEPTABLE USE


The Host must comply, and must ensure that any End Users comply, with any applicable acceptable use policies connected with a Service (as specified in a Service Schedule or as notified by Liveport to the Host from time to time).


29. WARRANTIES


29.1. Each party represents and warrants to the other party that:


    29.1.1. it is duly incorporated under the jurisdiction of its incorporation, with all requisite corporate power and authority to own, lease and operate its assets and to carry on its business as currently owned, leased, operated and conducted;


    29.1.2. it has full power and all necessary rights to enter into this Agreement and to perform its obligations


    29.1.3. according to the terms of this Agreement; and


    29.1.4. none of the following has occurred nor is subsisting or threatened:


        29.1.4.1. the appointment of an administrator to the party;


        29.1.4.2. any step taken for the winding up, dissolution, or administration of the party or the party entering into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;


        29.1.4.3. the party being (or taken to be under applicable legislation) unable to pay its debts, other than as the result of a failure to pay or a debt or claim the subject of a good faith dispute;


        29.1.4.4. the party stopping or suspending, or threatening to stop or suspend, payment of all or a class of its debts; or


        29.1.4.5. the appointment of a receiver, receiver and manager, administrator, receiver or similar officer to any of the assets and undertakings of the party.


30. DISCLAIMER OF WARRANTIES


30.1. Except as expressly provided, all services supplied by the parties to one another under the Agreement are provided on an "as is" basis and the parties, their suppliers and licensors make no warranty of any kind, express or implied, regarding the services and specifically disclaim the warranties of merchantability, fitness for a particular purpose and against infringement to the maximum extent permitted by law.


30.2. Liveport does not warrant that the services will be uninterrupted or free of errors, delays, faults or omissions or that the services will meet the Host's or its customers' or end sers' requirements, will be compatible or work with any software, system or other services other than as set out in the Agreement and Liveport will not be responsible for any loss or damage to the Host or the Host's business that may result from interruptions, delays, faults, errors or omissions in the supply of the Services.


30.3. The Host acknowledges that, unless as expressly agreed, the Services do not include the monitoring of any network or computer system and the Services provide no security or other measures that will prevent or detect any attack, intrusion or another anomaly in respect of the Services or use of the Services by the Host or the End Users.


31. LIMITATION OF LIABILITY


31.1. All terms, conditions and/or warranties that may be implied into this Agreement, statutory and otherwise, relating to the provision of the Services by Liveport are excluded to the fullest extent permitted by law.


31.2. Liveport's liability for breach of any term, condition or warranty, or under any remedy implied by law, which cannot be lawfully excluded, will be:


    31.2.1. limited (if permitted by law), at Liveport's option, to the repair or re-supply of equipment or Services or the payment of the cost of having the equipment or Services re-supplied; and


    31.2.2. reduced to the extent that such liability is caused by the Host's negligent acts and/or omissions and/or a breach by the Host of the terms of this Agreement.


31.3. If Liveport fails to meet any service level obligations as a result of any interruption or delay to a Service (other than Third Party Services), it accepts liability to the Host, but limits that liability to the applicable service level rebates or credits. Where the Host is not entitled to a service level rebate or credit, Liveport limits its liability to an amount equal to the service charges billed for the affected Services for the period of the interruption or delay.


31.4. Without limiting clause 31.5, the aggregate liability of Liveport for all direct, indirect and consequential losses, damages, costs, expenses, actions and claims arising out of, or otherwise in connection with, this Agreement, whether based on an action or claim in contract, equity, negligence, intended conduct, tort or otherwise, is limited to the total fees paid by the Host for the affected Service(s) in the 12 months preceding the relevant cause of action accruing or, if there are more than one, the last cause of action accruing.


31.5. Liveport have no liability to the Host or to any other person, for:


    31.5.1. the acts or omissions of any third party, including the suppliers which have been engaged by Liveport for the purpose of supplying or maintaining a Service supplied to the Host under this Agreement;


    31.5.2. faults or defects in Services which are caused by the Host's own conduct; or


    31.5.3. faults or defects that arise in telecommunication services provided to the Host other than under this Agreement (even if they are connected with Liveport's consent to Services which Liveport has supplied under this Agreement);


    31.5.4. any loss of revenue or profits, loss of data, loss of bargain and damage to reputation or for any form of indirect or consequential loss, whether in respect of breach of contract, equity, negligence, intended conduct, tort or otherwise, arising out of, or in connection with, the provision of the Services or this Agreement;


    31.5.5. faults or defects in the Services that arise due to equipment or cabling owned or leased by the Host or otherwise in the Host's control;


    31.5.6. faults or defects in the Services that arise due to failure by the Host or any third party (other than a contractor or agent engaged by Liveport) to appropriately maintain any equipment or cabling relevant to the supply of the Services.


31.6. Liveport will provide refunds in accordance with the ACL and its Refund Policy.


32. INTELLECTUAL PROPERTY


32.1. As between the parties, Liveport and its licensors will own all right, title and interest in and to Liveport hardware, software, Services and any modifications or improvement to such Software or Services and all related Intellectual Property Rights.


32.2. The Host acknowledges that none of Liveport's Intellectual Property Rights are transferred to the Host and that nless specifically authorised by this Agreement, the Host cannot and will not use or reproduce such Intellectual Ptoperty Rights for any purpose outside this Agreement.


33. CONFIDENTIAL INFORMATION


Each party must keep the other's confidential information (including the terms of this Agreement) confidential and will not allow any written or electronically recorded confidential information to be copied other than for the purposes of this Agreement.


33.1. Neither party will use any confidential information it acquires form the other party for any purpose other than exercising its rights and performing its obligations under this Agreement.


34. INDEMNIFICATION


34.1. In the event that a claim arises that the Services or the Equipment infringes the Intellectual Property Rights of a third party, Liveport may:


    34.1.1. modify the affected Services in order to avoid any infringement, provided that it can do so without materially adversely affecting the functionality, performance and quality of the Services;


    34.1.2. procure for the Host all rights required to continue using the affected Services in accordance with this Agreement;


    34.1.3. procure for the Host non-infringing replacements for the affected Services that are reasonably equivalent in functionality, performance and quality; or


    34.1.4. if the options in 34.1.1 to 34.1.3 are not possible, terminate the affected Services or cease to provide the affected Services (as applicable) and reimburse any Fees paid by the Host for those Services for the period the Service was unavailable.


34.2. Notwithstanding the foregoing, Liveport shall have no obligation under this clause for any claims to the extent that they result from:


    34.2.1. any modifications or alternations of Liveport Hardware except those authorised by Liveport in writing;


    34.2.2. use of Liveport Hardware outside the scope of the licenses granted hereunder; or


    34.2.3. use of Liveport Hardware in combination with any other software, hardware or products not supplied, authorised or approved by Liveport in writing.


34.3. The Host will defend, hold harmless, and indemnify Liveport from any and all damages, liability, costs and expenses including but not limited to reasonable legal fees which Liveport may suffer or incur arising out of or in connection with an action or claim brought by the Host or a third party against Liveport which arises out of:


    34.3.1. all use of the Services including without limitation:


        34.3.1.1. the transmission of any illegal, fraudulent or offensive material by the Host;


        34.3.1.2. any breach by the Host of the Agreement;


        34.3.1.3. the Hosts negligence, fraud or misconduct


    34.3.2. any claim by a third party against Liveport based upon an alleged or actual error, omission, failure or defect in the service or software of any person or entity used in the wireless internet service contemplated by the Agreement, including but not limited to any third-party billing agency or customer service organisation.


34.4. The indemnified party shall:


    34.4.1. provide notice to the indemnifying party and permit the indemnifying party to control the defence and settlement of any such claim, suit or the like, provided, however that:


        34.4.1.1. the indemnifying party shall not enter into any settlement agreement that would result in any admission by the indemnified party or payment by the indemnified party without the indemnified party's prior written consent; and


        34.4.1.2. the indemnified party may at its election participate in the defence of such claim, suit or the like through separate counsel at its own expense; and


    34.4.2. provide the indemnifying party all reasonable assistance (at the expense of the indemnified party) in connection with the defense or settlement of any such claim, suit or the like.


35. FORCE MAJEURE


35.1. Neither party shall be liable for a failure to perform or delay in performing any obligation under the Agreement (other than the obligation to pay the Fees) if the failure or delay is caused by a Force Majeure Event.


35.2. The non-performing party will be excused from further performance or observance of the obligations affected by the Force Majeure Event (other than an obligation to pay money) for as long as the Force Majeure Event continues or prevails.


36. VARIATIONS


36.1. This Agreement is Liveport's 'standard form of agreement' under the Act and as such:


    36.1.1. the Host and Liveport must comply with this Agreement unless both parties have agreed otherwise;


    36.1.2. Liveport may amend these terms at any time without the Host's consent where the amendment does not cause detriment to the Host.


37. UNFAIR TERMS TO BE READ DOWN


37.1. If any law making unfair contract terms void or unlawful could apply to a term in these terms, the following rules apply to interpreting that term.


    37.1.1. if the law would make the term void because the term permits us to exercise a right or discretion in a way that would cause detriment to the Host, the term shall be read down and construed to the extent as not to permit us to exercise the right or discretion in such a way; and


    37.1.2. if the law would make the term void because it authorised Liveport to recover costs or losses or damages to be calculated in a way Liveport chooses, the term shall be read down and construed as authorising Liveport to recover the maximum reasonable costs, losses and damages to be calculated in a reasonable way that did not cause the term to be void.


37.2. If, despite the application of this clause, the law would make the term void, the term is to be read down and construed as if it were varied, to the minimum extent necessary, so that the term is not void. These reading down rules apply before any other reading down or severance provision in these terms.


38. MISCELLANEOUS


38.1. An Order Form may not be modified or otherwise amended except in writing signed by officers of both parties.


38.2. Waiver of any breach of any provision of the Agreement must be in writing signed by an officer of the party affected.


38.3. The Agreement shall be governed and construed in accordance with the laws of the State of Victoria, Australia, excluding its conflicts of law provisions, as govern contracts between Victorian residents to be performed in Victoria.


38.4. In all matters relating to the Agreement, the parties are and shall act as independent contractors towards each other and not as partners or joint ventures. Neither party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other party, nor to represent the other party as agent, employee, franchisee, or in any other capacity.


38.5. All notices required under the Agreement shall be given in writing to the addresses listed in each Order Form by personal delivery, facsimile or email with a confirmation of receipt by the other party.


38.6. If any provision of the Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and enforceable


38.7. This Agreement does not constitute any party the agent of the other party or imply that the parties intend constituting a partnership, joint venture or other form of association in which any party may be liable for the acts or omissions of the other party