1. Structure of these Terms and Conditions
These Terms and Conditions are structured so that:
(a) Part A (clauses 2 - 7) applies to all Applicants (including any RSP Applicant); and
(b) Part B (clause 8) only applies to an Applicant applying on behalf of downstream customers (RSP Applicant).
PART A – ALL APPLICANTS
2. Application of these Terms and Conditions
(a) In consideration of NBN Co Limited ABN 86 136 533 741 ("we" or "us" or "nbn") providing you access to the online application form for a technology switch under nbn's Technology Choice program (Application Form), you agree to the following Terms and Conditions. These Terms and Conditions apply any person who submits an Application Form, whether as or on behalf of the owner of the premises the subject of the proposed technology switch ("you" or "Applicant").
(b) You acknowledge that these Terms and Conditions are for the benefit of nbn and each of our related bodies corporate (as that term is defined in section 50 of the Corporations 2001 (Cth)).
(c) These Terms and Conditions apply only to the submission of an Application Form and the information and data exchanged in relation to it. You are submitting this Application Form for the purposes of providing nbn with information in relation to a proposed technology switch and requesting nbn to acknowledge your application, conduct an initial eligibility assessment and (subject to the outcome of the initial eligibility assessment) advise you on how to further progress your application. The terms of any future feasibility assessment and build in respect of your application will be subject to further agreement between you and nbn.
(d) By clicking "I accept the Terms and Conditions of this application", you acknowledge that you agree to be bound by these Terms and Conditions.
3. Submission of an Application Form
(a) By accepting these Terms and Conditions, you acknowledge that you are authorised to disclose information and data required for the purposes of this Application Form and agree to these Terms and Conditions on behalf of each owner of premises the subject of the proposed technology switch.
(b) You warrant that all information and data provided by you is true, accurate, complete and up to date.
(c) It is a condition of submitting an Application Form that you do not:
(i) post or transmit any unlawful, threatening, abusive, libellous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offence, give rise to civil liability or otherwise violate any local, state, national or international law;
(ii) post or transmit any information, software or other material which violates or infringes the rights of others, including material which is an invasion of privacy or publicity rights or which is protected by copyright, trade mark or other proprietary right, or derivative works with respect thereto, without first obtaining permission from the owner or right holder;
(iii) post or transmit any information, software or other material that contains a virus or other harmful component; or
(d) You warrant that if any information or data that you provide to nbn is amended, updated or is found to no longer be true and correct, that you will provide nbn with such updated or corrected information or data in a timely fashion.
(e) You must not, without our prior written consent:
(i) unless otherwise required by law, use or disclose to any person (other than to owners who have provided a Customer Authority under clause 8, if applicable), or otherwise make public for any purpose, any information disclosed by us in relation to your application or our Technology Choice program which is not in the public domain; or
(ii) use our name, trade marks or service marks or any other aspect of the nbn brand, including (without limitation) in any media release or interview, public announcement, public disclosure, promotion or marketing materials, customer or client lists, business presentations or otherwise communicate with the press, radio or television.
4. Use of information by nbn
(a) You acknowledge that nbn may contact you following the submission of an Application Form.
(b) You acknowledge that we collect information for the purposes of conducting an initial eligibility assessment and for any ancillary purpose.
5. Intellectual Property
(a) You acknowledge that the copyright in the Application Form, the software, design, texts and graphics comprised in the Application Form, the selection and layout of the Application Form and the content and materials on the Application Form (together, the "Materials") are owned by or licensed to nbn and that you must not reproduce or modify the Materials or deal with them in any way that is contrary to law, without our prior written consent.
(b) You may:
(i) store a reproduction of the content of the Application Form on your local computer for the sole purpose of viewing the content and Materials; and
(ii) print hard copies of the content and Materials for the sole purpose of viewing the information and data on the Application Form but not for any other use, including commercial use.
(c) The Application Form contains registered trade marks and other trade marks which are protected by law. Without limiting clause 3(e)(ii), you must not use any of the marks or trade marks appearing on the Application Form or our name or the names of our related bodies corporate without our prior written consent. You must not use any of the other company, product and services marks on the Application Form that are owned by other third parties (including our suppliers) without obtaining the relevant third party owner's consent.
(d) You grant to nbn a perpetual and irrevocable licence to use, modify and adapt all drawings, descriptions and other materials provided by you to nbn for the purposes of the initial eligibility assessment or in connection with any related services provided by us. In particular, we may include any such materials in our databases and other computer systems and use or modify such materials in connection with the operation of our business. We may sublicense the rights granted to us under this paragraph (d).
(e) You warrant that you have sufficient interest in such material to grant the licence in paragraph (d).
(a) nbn is not liable (including in negligence) for any loss, damage, cost or expense that you may suffer or incur in connection with the submission of an Application Form, the conduct an initial eligibility assessment or any failure by nbn to take any action in connection with information provided by you via an Application Form.
(b) Without limiting paragraph (a), we are not liable in respect of any liability or claim suffered or incurred by you (including under an indemnity) whether arising in contract, tort (including negligence), under statute or on any other basis in law or equity for:
(i) loss of profit;
(ii) loss of revenue;
(iii) loss of goodwill;
(iv) loss of business opportunity;
(v) compensation, charges or other liability arising out of network disruption or network performance; or
(vi) without limiting subparagraphs (i) - (v) above, losses other than those losses that may fairly and reasonably be considered as naturally (i.e. according to the usual course of things) flowing from the breach of these Terms and Conditions or as the probable result of the breach of these Terms of Conditions,
("Consequential Loss"), which may be suffered or incurred arising out of or in connection with the Application Form or the conduct of any initial eligibility assessment.
(a) Any links to external websites that are not operated by us or our related bodies corporate and that are provided by us to you for the purposes of submitting the Form are provided for your convenience only and you agree that:
(i) we make no representations or warranties, and have no responsibility or liability, for those websites; and
(ii) these links to not indicate, expressly or impliedly, that we endorse the site or the products or services that are provided at those sites. You agree that you access and use the information and data made available at those websites solely at your own risk.
(b) We may update these Terms and Conditions at any time and we may, but will not necessarily, notify you by email. You may be asked to review and agree to changed terms at any time.
(c) Once you enter into the final “Terms & Conditions – Technology Choice”, you acknowledge that any amounts paid by the Applicant are non-refundable.
PART B – RSP APPLICANTS ONLY
8. Customer Authority
(a) It is a pre-condition to the submission of any Application Form that you obtain authorisation from the owner of the premises the subject of the proposed technology switch to act as their authorised representative for the purpose of submitting an Application Form to nbn and to use information relevant to the owner's personal particulars and affairs for that purpose (Customer Authority).
(b) The Customer Authority must be obtained by you no more than 45 days before submitting an Application Form to nbn.
(c) If we have reasonable grounds to believe that the requirements set out in paragraphs (a) and (b) have not been met, we may not proceed with the assessment of your application.
(d) You must provide a copy of the Customer Authority to us within 5 business days of request.
(e) You indemnify us against any loss or claim arising as a result of or in relation to a breach by you of this clause 8.