Fusion Broadband Customer Relationship Agreement.
These customer terms and conditions (agreement) between Fusion Broadband and the Customer commence
upon the earlier of:
(a) the date of written acceptance by Fusion Broadband of an Application Form; and
(b) the date the customer activates the Service through connection to services,
This agreement governs both the Service and any Hardware provided to the Customer by Fusion Broadband for
use in conjunction with the Service.
The following words have the following meanings in this document, unless the context requires otherwise.
ACMA means Australian Communications and Media Authority.
Additional Charges means the charges payable for use of the Service beyond the Included Volume of data at
the rates notified by Fusion Broadband to the Customer from time to time.
Application Form means Fusion Broadband’s application, signed by the Customer.
Charges means the Recurring Charges, Additional Charges and any other charges payable under this
Commencement Date has the meaning given to that term in clause 1.1.
Confidential Information has the meaning given to that term in clause 11.1.
Fusion Broadband means Fusion Broadband: ABN 18149550541
Force Majeure Event includes any event beyond the control of a party, including strike, industrial action, war,
sabotage, terrorist activity, national emergency, blockade or governmental action, inaction or request, and act of
GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999.
Hardware means the Modem / Bonding device, accessories and other equipment rented by Fusion Broadband
to the Customer for the purpose of the Customer accessing the Service.
Included Volume of data means the volume of Service usage that may be incurred without being subject to
Initial Term means the initial term specified in the Application Form.
Intellectual Property Rights means any intellectual property rights at any time protected by statute or common
law in Australia or elsewhere in the world and whether registered or unregistered, including copyright, trade
marks, patents, patentable inventions, registered designs and rights in circuit layouts.
Law means any laws including statutes, regulations, common law and equity.
Loss includes, in each case whether of a direct, indirect or consequential nature:
(a) any liability, damage, cost (including reasonable legal costs on a solicitor and own client basis) and other
outgoing, and any diminution in value of, or deficiency of any kind in, any thing; and
(b) to the extent not covered in paragraph (a), any loss of profits, sales, turnover, reputation (or damage to it),
production, anticipated savings, goodwill, business opportunities, customers, software or data.
Market Value means the market value of the Hardware as determined by a person nominated by Fusion
Broadband as being experienced in valuing hardware the same as or similar to the Hardware.
Personal Information has the meaning given to that term in the Privacy Laws.
Privacy Laws means:
(a) the Privacy Act 1988;
(b) all State, Territory and Commonwealth laws relating to data protection or personal information; and
(c) any rules, regulations, guidelines or orders issued under the legislation referred to in paragraphs (a) and
Recurring Charges means the monthly charge that is payable by the Customer for use of:
(a) the broadband bonding service any Included Volume of data; and
Renewal Period means any period specified in the Application Form for which this agreement will continue
following the expiry of the Initial Term.
Service means the broadband bonding service
Support Services has the meaning given in the Support Service Terms.
Term means the Initial Term and any Renewal Periods, unless terminated earlier in accordance with this
User means an employee, agent or contractor of the Customer who accesses or uses the Service.
The following apply in the interpretation of this document, unless the context requires otherwise.
(a) A reference to this document or a similar term means either the agreement set out in this document or the
document itself, as the context requires.
(b) A reference to any statute, regulation, rule or similar instrument includes any consolidations, amendments
or re-enactments of it, any replacements of it, and any regulation or other statutory instrument issued under it.
(c) A reference to the singular includes the plural number and vice versa.
(d) A reference to a gender includes a reference to each gender.
(e) A reference to a party means a person who is named as a party to this document.
(f) Person includes a firm, corporation, body corporate, unincorporated association and a governmental
(g) A reference to a party or a person includes that party’s or person’s executors, legal personal
representatives, successors, liquidators, administrators, trustees in bankruptcy and similar officers and, where
permitted under this document, their substitutes and assigns.
(h) An agreement on the part of, or in favour of, two or more persons binds or is for the benefit of them jointly
(i) Includes means includes but without limitation.
(j) Where a word or expression has a defined meaning, its other grammatical forms have a corresponding
(k) A reference to a clause, schedule or annexure is a reference to a clause of, or a schedule or an annexure
to, this document.
(l) A reference to dollars or $ is to Australian currency.
(m) A heading is for reference only. It does not affect the meaning or interpretation of this document.
3 SERVICE PROVISION
3.1 Connecting the Service
(a) Fusion Broadband will endeavour to deliver the Hardware to the Customer and establish the Service within
20 business days of payment of the initial invoice and completion any preconfiguration details required via
the “pre configuration form”.
(b) The Customer is responsible for the installation of any Hardware required to receive the Service. The
Customer must comply with any instructions or guidelines provided by Fusion Broadband in connection with the
installation of Hardware. Fusion Broadband will provide limited support to the Customer during the installation
process, in accordance with the Support Service Terms. Fusion Broadband will not be liable for any costs the
customer incurres for installation services, from either the customers internal cost structures or third party organizations.
3.2 Service provision
(a) Fusion Broadband will supply the Service to the Customer in accordance with the terms of this agreement.
(b) The Customer agrees that the ADSL network infrastructure used to provide the Service is not owned by
Fusion Broadband and this may impact the quality of service, for best results only business class services
should be used in Broadband bonding.
3.3 Service limitations
The Customer agrees that:
(a) the Customer’s ability to access and use the Service will depend on the features and functionality internet
connection provided by the Customer. It is the responsibility of the Customer to check that its internet connection
is functioning and or the required quality;
(b) the Service is not free from faults or interruptions;
Fusion Broadband does not provide any warranties in connection with the matters specified in this clause 3.3.
3.4 Variations to the Service
(a) Fusion Broadband may vary the characteristics of the Service:
(i) without notice if the variation is likely to benefit the Customer or have a neutral or minor detrimental impact
on the Customer; or
(ii) by giving notice in writing to the Customer not less than 30 days prior to the date on which the variation is
intended to take effect if the variation is other than as described in clause 3.4(a)(i).
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Fusion Broadband Customer Relationship Agreement.
(b) If Fusion Broadband varies the characteristics such that it is not providing a service established in the initial
agreement, the Customer may terminate this agreement without incurring fees or charges other than:
(i) Charges incurred up to the date the agreement ends; and
(ii) any amounts that cover installation costs or Hardware.
(a) Fusion Broadband will deliver the Hardware to the Customer at the delivery location specified in the
Application Form (Delivery Location).
(b) Any time and date of delivery specified by Fusion Broadband is an estimate only as to when the Hardware
may be available for delivery and Fusion Broadband will not be liable in any way for any failure or delay in
delivery or for any Loss resulting from any failure or delay in delivery of the Hardware.
(c) The Customer agrees to accept delivery of the Hardware during normal business hours or at such other
times as are agreed between Fusion Broadband and the Customer.
(a) Title to the Hardware remains with Fusion Broadband.
(b) The Customer must:
(i) keep the Hardware under the Customer’s control at all times;
(ii) store, mark and keep appropriate records for the Hardware so that it can at all times be identified as Fusion
Broadband’s property and refrain from mixing the Hardware with any goods owned by the Customer;
(iii) not grant to any person any sub-lease or other right to possess or use the Hardware; and
(iv) not purport to charge or encumber the Hardware in any way or sell, grant or otherwise give any security
interest in the Hardware.
Risk of loss or damage to the Hardware passes from Fusion Broadband to the Customer on delivery of the
Hardware to the Delivery Location.
4.4 Use of Hardware
The Customer must use the Hardware in accordance with any documentation, instructions or specifications
provided by Fusion Broadband or the manufacturer of the Hardware.
4.5 Manufacturer warranties
(a) Fusion Broadband will use reasonable commercial endeavours to assign to the Customer, to the extent that
it is lawfully and/or contractually able to do so, the benefit of any warranties given to Fusion Broadband by the
manufacturer of any Hardware supplied by Fusion Broadband to the Customer.
(b) To the extent permitted by law, Fusion Broadband will not provide the Customer with any warranties in
relation to the Hardware other than those expressly set out in this agreement.
4.6 Repair or replacement of Hardware
(a) To the extent permitted by law, if the Hardware contains a defect or fault Fusion Broadband will either repair
or replace such Hardware (in its discretion) if:
(i) the defect or fault arises within ninety (90) days from the Commencement Date; and
(ii) the cause of the defect or fault is not a cause specified in clause 4.6(b); and
(b) To the extent permitted by law, Fusion Broadband is under no obligation to repair or replace Hardware that
contains a defect or fault where:
(i) the Hardware has been incorrectly set up or used;
(ii) the Hardware has been damaged as a result of a failure by the Customer to perform and maintain the
Hardware in accordance with any instruction manual provided by Fusion Broadband or the manufacturer;
(iii) the defect or fault is a result of normal wear and tear;
(iv) damage to the Hardware was caused by incorrect adjustment or use by the Customer; or
(v) damage to the Hardware was caused by abuse, misuse, improper or abnormal usage or repairs not
authorised by Fusion Broadband.
4.7 Return of Hardware
(a) The Customer must return the Hardware to Fusion Broadband at the place specified by Fusion Broadband,
upon the earlier to occur of:
(i) notice in writing by Fusion Broadband to the Customer; and
(ii) within 14 days of the expiration or termination of this agreement.
(b) The Customer must ensure that the Hardware is returned to Fusion Broadband in good working condition,
subject to normal wear and tear.
(c) The Customer is responsible for paying any freight charges in connection with the return of the Hardware to
(d) If the Customer does not return the Hardware to Fusion Broadband in accordance with clause 4.7(a),
Fusion Broadband may by notice to the Customer, declare the Hardware to be lost and the Customer must pay
Fusion Broadband upon demand, as compensation for its loss, the Market Value of the Hardware.
4.8 Locked Hardware
The Hardware is locked and programmed to work only with the Service, the Customer must not unlock the
5 USE OF THE SERVICE
5.1 Lawful use
The Customer must not use the Service, attempt to use the Service or allow the Service to be used in any way
(a) constitutes a breach of any Law;
(b) results in Fusion Broadband being in breach of, or in any way involved in a breach of, any Law;
(c) is offensive, immoral, indecent, pornographic, racist, menacing, threatening or abusive or likely to damage
the reputation of Fusion Broadband;
(d) is defamatory or tortious or constitutes a breach of confidence or Intellectual Property Rights;
(e) incites discrimination, hatred or violence towards a person or group of people;
(f) interferes with the provision of any services by Fusion Broadband to its other customers; or
(g) is misleading or deceptive.
5.2 Reselling the Service
The Customer must not resell any part of the Service or use the Service to provide a service to any third party.
5.3 Tampering with the Hardware or Services
(a) The Customer must not alter or reconfigure the Hardware, change the electronic serial number or
equipment identifier of the Hardware or perform a factory reset of the Hardware, without the written consent of
(b) The Customer must not hack or disrupt the Service or make any use of the Service that is inconsistent with
its intended use or purpose or attempt to do so.
5.4 Fraudulent use of the Service
(a) The Customer must notify Fusion Broadband immediately if the Customer becomes aware at any time that
the Service is being fraudulently used or accessed by a third party.
(b) Until such time as Fusion Broadband receives a notice from the Customer under clause 5.4(a), the
Customer will be liable for all use of the Service and corresponding Charges.
5.5 Fair Use Policy
In order to ensure that all Fusion Broadband customers are able to access Fusion Broadband’s services, the
Customer must notify Fusion Broadband by writing or Email to email@example.com/newfbbsite if their usage
is likely to be consistently higher than the initial expectation given in the service order form. Consistently higher
is greater than 25% of their initial estimate of data usage.
The Customer is liable for any Losses that may arise in connection with any data transmitted by or to the
Customer using the Service.
5.8 Intellectual Property
(a) Fusion Broadband is the owner or licensor of the Intellectual Property Rights in the Service, Hardware,
information, documents and other materials used by Fusion Broadband to provide the Service.
(b) Nothing in this agreement gives any Intellectual Property Rights in any materials to the Customer.
(c) The Customer must not reverse compile, disassemble, reverse engineer or otherwise attempt to derive the
source code of any firmware or software provided in connection with the Service.
6 BILLING AND CHARGES
6.1 Credit checks
(a) Fusion Broadband may require the Customer to undergo a credit check prior to Fusion Broadband
providing the Customer with a Service. Fusion Broadband may refuse to supply a Service to the Customer if the
Customer fails such credit check or Fusion Broadband considers the Customer represents a credit risk.
(b) If Fusion Broadband requires the Customer to undergo a credit check, the Customer must provide Fusion
Broadband or its nominated credit agency with such accurate and up-to-date information as may be requested
by Fusion Broadband to enable Fusion Broadband or its nominated credit agency to make a proper assessment
of the Customer’s credit standing.
(a) Fusion Broadband will invoice the Customer:
(i) monthly in advance for all Recurring Charges;
(ii) monthly in arrears for all Additional Charges; and
(iii) for all other charges, when incurred.
Fusion Broadband may round up to the nearest GB of data incurred by the Customer using the Service. Data is
counted in both directions Up and Downlink
6.4 Variations to the Charges
Fusion Broadband may at any time vary the Charges by providing the Customer with not less than 30 days
notice for any service not under contract.
6.5 Electronic invoices
(a) Fusion Broadband will provide the Customer with electronic invoices.
(b) Fusion Broadband will not provide the Customer with a paper invoice except where the Customer agrees to
pay a reasonable charge, as notified by Fusion Broadband to the Customer.
(a) The Customer must pay all Charges within fourteen (14) days after the date Fusion Broadband issues an
invoice in respect of such amounts.
(b) The Customer must make such payments in Australian currency, without any set-off, counter-claim,
deduction or withholding.
6.7 Payment dispute
(a) If the Customer disputes that an amount invoiced by Fusion Broadband under this agreement is payable,
the Customer must:
(i) notify Fusion Broadband of the dispute within 14 days of the date Fusion Broadband issued the invoice; and
(ii) pay to Fusion Broadband any invoiced amounts that are not in dispute.
(b) If it is determined that the disputed amount is payable by the Customer, the Customer must immediately
pay to Fusion Broadband the disputed amount.
(a) Unless stated otherwise, all consideration provided under this agreement is exclusive of GST. If GST is
payable by the supplier, the recipient must, upon receipt of a tax invoice from the supplier, pay the supplier an
amount equal to the GST payable on that supply.
(b) Terms used in this clause 9.8 which are not defined in this agreement, but which are defined in the GST
Law, have the meanings given in the GST Law.
6.9 Refund / Cancellation Policy
(a) Fusion broadband will provide a refund within 30days of the service becoming active should be not be able to deliver Bonded performance of at least 70% Bonding efficiency on Business wired based services in in either up or downlink directions..
(b) Bonding efficiency is: The sum of the average sustainable speed of a service over a 10 second period ( using Fusion testing methods) of each service multiplied by 0.70. This is applied to one direction only whichever is greater ( Uplink or Downlink)
(c) Refund amount does not include the current monthly bonding fee.
(d) Re stocking fee: Fusion Broadband will apply a $100 (inc GST) restocking fee on returned Bonding systems.
(e) Customers are required to return the Fusion Bonding system within 14 days of acceptance of a service cancellation
(f) The Fusion Bonding system is to be returned 100% fully functional, undamaged and in original packaging to Fusion Broadband,
10/ 50 Market St, Melbourne, Victoria, 3000. Systems that do not meet this criteria will be charged at the original retail price.
7.1 Collection of Personal Information
(a) In order for Fusion Broadband to comply with its obligations under this agreement, Fusion Broadband may
from time to time collect Personal Information from the Customer, including the Personal Information of Users.
(b) The Customer must provide all required notices to and obtain all necessary consents from all Users to
permit Fusion Broadband to collect, use and disclose the Personal Information of such Users for the purposes of
(a) The Customer consents, and must procure the consent of its Users, to Fusion Broadband’s collection, use
and disclosure of the Personal Information collected from the Customer for purposes including:
(i) assessing creditworthiness;
(ii) all purposes associated with the provision of any Services;
(iii) billing the Customer, which may be provided from a location in another country and involve the transfer of
Personal Information to such other country;
(iv) the provision of Support Services, which may be provided from a location in another country and involve
the transfer of Personal Information to such other country;
(v) assisting law enforcement agencies in relation to the enforcement of criminal and other laws;
(vi) assisting in internal investigations conducted by Fusion Broadband into suspected fraud, misuse of any
Services or other unlawful activities; and
(vii) complying with applicable Laws.
(b) The Customer consents, and must procure the consent of its Users, to Fusion Broadband’s disclosure of
the Personal Information collected from the Customer to:
(i) Fusion Broadband’s Related Bodies Corporate; and
(ii) Fusion Broadband’s service providers, content providers, distributors and agents both in Australia and
for purposes related to providing the Customer with any Services or Support Services.
7.3 Compliance with Privacy Laws
Fusion Broadband will comply with the Privacy Laws when dealing with the Personal Information of the
Customer and its Users.
8.1 Confidential Information
In this clause, Confidential Information means information disclosed by or on behalf of one party (Discloser) to
the other party (Recipient) or of which the Recipient becomes aware, during the Term or in prior discussions
between the parties in anticipation of this agreement, including:
(a) information designated as confidential by the Discloser; and
(b) any other information which by its nature should reasonably be considered to be confidential information of
the Discloser or of a person to whom the Discloser owes a duty of confidence.
Confidential Information may be provided in writing, electronically, verbally or otherwise. Confidential Information
does not include any information which the Recipient can prove either is in the public domain or was known by
the Recipient at the time of disclosure, other than through a breach of this agreement.
The Recipient must:
(a) subject to clause 11.3, keep confidential and not disclose to any person any Confidential Information;
(b) not use or permit the use of any Confidential Information for any purpose other than that contemplated by
this agreement, unless authorised by a separate agreement between the parties; and
(c) establish and maintain comprehensive security measures to ensure that all Confidential Information in its
possession, custody or control is secure at all times. Without limiting this obligation, the Recipient must keep all
Confidential Information no less secure than its own confidential information.
8.3 Permitted disclosure
The Recipient may disclose Confidential Information:
(a) as expressly required or permitted by this agreement (if applicable);
(b) with the consent of the Discloser; or
(c) to the extent required by law, by an order of a court or of a regulatory body or by the listing rules of the ASX
8.4 Required disclosure
If the Recipient is required under clause 11.3(c) to disclose any Confidential Information, the Recipient must
before doing so:
(a) notify the Discloser; and
(b) if possible, give the Discloser a reasonable opportunity to take any steps it considers necessary to protect
the confidentiality of the Confidential Information.
9 SUSPENSION OF SERVICE
(a) Fusion Broadband may suspend the Service (or part of it) if:
(i) the Customer is in breach of this agreement;
(ii) the Customer fails to pay an invoice from Fusion Broadband by the due date;
(iii) the Customer connects hardware to the Service which is not included in the list of authorised hardware
specified by Fusion Broadband;
(iv) Fusion Broadband considers it necessary for maintenance, repair or similar operational reasons;
(v) Fusion Broadband reasonably suspects fraud or other illegal conduct in connection with the use of the
Services by the Customer or any other person; or
(vi) a Force Majeure Event or a catastrophic stoppage of Service occurs.
(b) Where practicable, Fusion Broadband will provide the Customer reasonable notice before suspending the
9.2 Consequences of suspension
If Fusion Broadband suspends the Service pursuant to clauses 9.1(a) (vii):
(a) Fusion Broadband must use its reasonable endeavours to recommence supply of the Services, as soon as
10 TERM AND TERMINATION
(a) If the Application Form provides for Renewal Periods, upon expiration of the Initial Term, this agreement will
continue for the specified Renewal Periods, unless a party has provided 30 days notice of termination prior to the
expiration of the Initial Term or any subsequent Renewal Period.
(b) If the Application Form does not provide for Renewal Periods, upon expiration of the Initial Term this
agreement will continue until it is terminated by either party giving not less than 30 days notice of termination to
the other party.
10.2 Termination by the Customer
(a) The Customer may terminate this agreement immediately (or later if so stated in the notice) by giving notice
of termination to Fusion Broadband. If Fusion Broadband is in breach of any obligation under this agreement and
the breach cannot be remedied, but, if the breach is capable of remedy, only when Fusion Broadband does not
remedy the breach after receiving 30 days notice from the Customer to do so.
10.3 Termination by Fusion Broadband
Fusion Broadband may terminate this agreement immediately (or later if so stated in the notice) by giving notice
of termination to the Customer if:
(a) the Customer is in breach of any obligation under this agreement and the breach cannot be remedied, but,
if the breach is capable of remedy, only when the Customer does not remedy the breach after receiving 30 days
notice from Fusion Broadband to do so;
(b) without the written consent of Fusion Broadband:
(i) there is a change in control, ownership or management of the Customer, where “control” includes the ability
to determine the outcome of financial or operating policies of the Customer; or
(ii) the Customer sells or otherwise disposes of substantially all of its business assets to a third party;
(c) Fusion Broadband has reasonable grounds to suspect fraud or other illegal conduct in relation to the
Services, by the Customer or any other person using the Services;
(d) Fusion Broadband suspends the Service for a period of 30 days or more in accordance with clause 9.1(a);
(e) any licence, authorisation, consent, approval or permit required by Fusion Broadband to supply the
Services cannot be obtained from, or is withdrawn by, any Government agency or other third party;
(f) the Customer becomes, threatens, resolves to become or in the reasonable opinion of Fusion Broadband is
likely to become subject to any form of insolvency, administration, receivership or liquidation;
(g) the Customer enters into any composition or arrangement with its creditors or has a receiver appointed
over any of its assets or is the subject of any resolution or petition for winding up or judicial management;
(h) the Customer is unable to pay its debts as and when they become due and payable or is deemed to be
insolvent under any provision of the Corporations Act 2001;
(i) an event occurs in relation to the Customer which is analogous to anything referred to above or which has a
substantially similar effect; or
(j) the Customer ceases to carry on all or a substantial part of its business.
10.4 Consequences of termination
On the termination or expiry of this agreement:
(a) Fusion Broadband will cease to supply the Services;
(b) the Customer must immediately pay to Fusion Broadband all Charges due and payable; and
(c) The customer must return all equipment owned by Fusion Broadband within 14 days or the full retail value
of the equipment is to paid for by the customer with 5 days of notification
(d) each party must promptly return, or at the other party’s direction destroy, any Confidential Information of the
other party in its possession, custody or control.
11.1 Mutual warranties
Each party represents and warrants to the other party that:
(a) its execution of this agreement has been properly authorised;
(b) this agreement constitutes a legal, valid and binding obligation on it; and
(c) this agreement does not conflict with or result in the breach of or default under any provision of its
constitution or any provision of any law to which it is subject.
11.2 Warranties excluded
Subject to any condition, warranty or right implied by the Trade Practices Act 1974 or any other law which cannot
lawfully be excluded:
(a) Fusion Broadband gives no warranties, whether in relation to service standards, reliability, availability or
otherwise, and the Customer has no other rights, apart from those expressly set out in this agreement; and
(b) all implied conditions, warranties and rights are excluded.
11.3 Statutory warranties
Where any condition, warranty or right is implied by law and cannot lawfully be excluded, Fusion Broadband
limits its liability for breach of that implied condition, warranty or right:
(a) subject to the qualifications in section 68A of the Trade Practices Act 1974 or any other law:
(i) in connection with the supply of goods, to any one or more of the following (as Fusion Broadband may
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Fusion Broadband Customer Relationship Agreement.
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the costs of having the goods repaired; and
(ii) in connection with the supply of services, to one of the following (as Fusion Broadband may determine):
(A) the supplying of the services again; or
(B) the payment of the costs of having the services supplied again; and
(b) otherwise, to the extent permitted by law.
12.1 Subject to clause 15.2, the Customer must indemnify Fusion Broadband in respect of any Loss incurred
by Fusion Broadband, directly or indirectly, in connection with:
(a) any breach by the Customer of any provision of this agreement;
(b) any fraudulent act or omission of the Customer or its Users;
(c) any loss, destruction or damage to the Hardware by fire, accident, theft or any other cause, while the
Hardware is in the possession, custody or control of the Customer or its Users; and
(d) any negligent act or omission of the Customer or its Users in connection with this agreement.
12.2 The Customer’s liability to indemnify Fusion Broadband will be reduced proportionally to the extent that
any of Fusion Broadband’s acts or omissions contributed to the Loss.
13.1 Indirect loss
Subject to clause 13.2, and despite any implication arising from any other provision of this agreement, Fusion
Broadband will not be liable to the Customer in contract, in tort (including negligence), under any statute (to the
extent permitted by law) or otherwise for, or in respect of, any:
(a) indirect or consequential loss or damage; or
(b) loss of profits, sales, turnover, reputation (or damage to it), production, anticipated savings, goodwill,
business opportunities, customers, software or data, whether of a direct, indirect or consequential nature,
suffered by the Customer or any other person in connection with this agreement.
13.2 Liability cap
Subject to this clause 13 and despite any implication arising from any other provision of this agreement, the total
liability of Fusion Broadband in contract, in tort (including negligence), under statute (to the extent permitted by
law) or otherwise for, or in respect of, any direct loss or damage arising out of any breach or other act or
omission of Fusion Broadband in connection with this agreement will not exceed one month of Recurring
14 FORCE MAJEURE
14.1 No liability
A party is not liable for any failure to observe its obligations under this agreement where such failure is wholly or
substantially due to a Force Majeure Event, provided that the party seeking to rely on the benefit of this clause:
(a) as soon as reasonably practicable, notifies the other party of the extent to which it is unable to perform its
(b) uses its best endeavours to mitigate the adverse effects of the Force Majeure Event and perform its
obligations under this agreement as quickly as possible.
Where a Force Majeure Event prevents a party from performing a material obligation under this agreement for a
period in excess of 30 days, the other party may by notice terminate this agreement, which will be effective
immediately, unless otherwise stated in the notice.
15 RESOLUTION OF DISPUTES
15.1 No litigation
(a) Subject to clause 15.1(b), unless a party has complied with clauses 15.2, 15.3 and 15.4, that party may not
commence litigation or arbitration relating to any dispute arising from this agreement except where that party
seeks urgent interlocutory relief, in which case that party need not comply with this clause before seeking the
(b) This clause 15 does not exclude or limit the ability of a party to refer any dispute to the Telecommunications
A party claiming that a dispute has arisen in connection with this agreement (first party) must give notice to the
other party designating, as its representative in negotiations relating to the dispute, a person with authority to
settle the dispute and the other party must, within 10 days of receipt of the notice, give notice to the first party
and each other party acknowledging the dispute and designating a corresponding representative for itself.
The parties must ensure that the designated persons (Representatives), within 10 days of notice being given of
the last designation required by clause 15.2, use their best endeavours to resolve the dispute.
If a dispute is not resolved within the 10 day period referred to in clause 15.3 (or any further period agreed by the
Representatives in writing) the parties must ensure that the Representatives within a further 10 days (or any
further period agreed by the Representatives in writing) use their best endeavours to agree on a process for
resolving the whole or any part of the dispute through means other than litigation or arbitration, such as further
negotiations, mediation, conciliation, independent expert determination or appraisal. The parties must ensure
that the Representatives also use their best endeavours to agree on:
(a) the procedure and timetable for any exchange of documents and other information relating to the dispute;
(b) procedural rules and a timetable for the conduct of the selected mode of proceeding;
Fusion Broadband Customer Relationship Agreement.
(c) a procedure for selection and compensation of any neutral person who may be employed by the parties in
(d) whether the parties should seek the assistance of a dispute resolution organisation.
15.5 Commencement of litigation
(a) a party has failed to appoint a Representative as required by this clause 16; or
(b) the time established by or agreed under clause 16.4 for agreement on a dispute resolution process has
a party which has complied with this clause 18 may, by notice to the other party, terminate the process and
Any notice given in connection with this document must be in writing and must be addressed to a party and
(a) hand delivered to, or sent by post to, the party’s registered office, principal place of business or any other
address the party notifies for the service of notices;
(b) sent by fax to any fax number the party notifies for the service of notices; or
(c) sent by email to any email address the party notifies for the service of notices.
16.2 When given
A notice is taken to have been given:
(a) in the case of being hand delivered, on the date on which it is delivered;
(b) in the case of being sent by post, on the third (seventh if sent to an address in another country) day after
the date of posting;
(c) in the case of being sent by fax, at the time of dispatch as confirmed by a transmission report by the
sending machine; and
(d) in the case of delivery by email, at the time sent.
The Customer may only assign this agreement or any part of it if it obtains the written consent of Fusion
Broadband. Fusion Broadband may assign this agreement or any part of it by providing notice in writing of the
assignment to the Customer.
18 GOVERNING LAW
This agreement is governed by the law in force in Victoria.
The parties submit to the jurisdiction of the courts of Victoria.
20 ENTIRE AGREEMENT
(a) records the entire agreement between the parties; and
(b) supersedes all previous negotiations, understandings, representations and agreements,
in relation to the subject matter of this agreement.
© 2010 Fusion Broadband Pty Ltd.