Interim Access Determination No. 1 of 2021 (SBAS)
Competition and Consumer Act 2010
The AUSTRALIAN COMPETITION AND CONSUMER COMMISSION makes
this interim access determination under section 152BCG of the Competition and
Consumer Act 2010.
Date of decision: 16 July 2021
Rodney Graham Sims
Chair
Australian Competition and Consumer Commission
1. Application
1.1 This instrument sets out an interim access determination (IAD) in respect of the superfast broadband access service (SBAS) declared on 19 July 2021.
1.2 The prices in this IAD are exclusive of tax payable under The Utilities (Network Facilities Tax) Act 2006 (ACT).
1.3 The prices in this IAD are exclusive of Goods and Services Tax (GST).
1.4 The prices in this IAD are exclusive of the Regional Broadband Scheme levy[1] introduced by Government for the purpose of funding regional fixed wireless and satellite broadband services.
2. Definitions and interpretation
2.1 Schedule 1 applies to the interpretation of this instrument.
2.2 The Schedules form part of this instrument.
3. Commencement and duration
3.1 This IAD commences on 27 July 2021.
3.2 Unless sooner revoked this IAD expires on the earlier of:
(a) 31 December 2022, or
(b) the day on which this IAD is taken to be revoked by operation of subsection 152BCF(9A) of the Competition and Consumer Act 2010 (CCA)
4. Terms and conditions of access
4.1 If a carrier or carriage service provider is required to comply with any or all of the standard access obligations in respect the SBAS, the carrier or carriage service provider must comply with those obligations on the terms and conditions set out in this clause 4.
Note: The terms and conditions in an IAD apply only to a matter where terms and conditions on that matter in an Access Agreement cannot be reached, no special access undertaking is in operation setting out terms and conditions on that matter and no binding rules of conduct have been made setting out terms and conditions on that matter: section 152AY of the CCA.
4.2 If the Carrier or Carriage Service Provider is required to supply the SBAS to a service provider, the Carrier or Carriage Service Provider must supply the service at the price specified in Schedule 2. The non-price terms and conditions set out in Schedules 3–12 apply to access to the SBAS.
4.3 A Carrier or Carriage Service Provider, if it is required to supply the SBAS is required to supply upon request the following wholesale product/s:
(a) in the case of the Fibre Access Broadband service, that service with the following maximum transmission speeds:
(i) download data transfer rate of 30 Mbps (peak information rate)
(ii) upload data transfer rate of 1 Mbps (peak information rate);
(b) in all other cases, the SBAS with the following characteristics:
(i) a download data transfer rate of 25Mbps (peak information rate)
(ii) an upstream data transfer rate of 5 Mbps (peak information rate)
(iii) residential grade service characteristics
(iv) if requested by the access seeker, a prioritized, symmetric bitstream of sufficient capacity to provide a voice service.
4.4 Nothing in this IAD restricts a Carrier or Carriage Service Provider that is required to supply the SBAS from supplying additional wholesale products to those specified in 4.3.
4.5 This clause is subject to clause 5.
5. Application to Small Providers
5.1 Subject to clause 5.1A, a Carrier or Carriage Service Provider is not required to comply with any of the standard access obligations as set out in section 152AR of the CCA in respect of the SBAS if the Carrier or Carriage Service Provider is a Small Provider.
5.1A Clause 5.1 does not apply to Small Providers in respect of their provision of access to the local bitstream access service (LBAS) as described in Annexure 1 to the LBAS Declaration Instrument (or would have been if the declaration was still in force).
Note: The LBAS includes eligible services provided over networks captured by sections 142C or 143 of the Telecommunications Act 1997. More generally, these can be considered to be services over networks that came into existence after 1 January 2011 with some limited exceptions.
5.2 A Carrier or Carriage Service Provider is a Small Provider if the total number of end-users supplied using the SBAS provided by:
(a) the Carrier or Carriage Service Provider;
(b) any Carrier or Carriage Service Provider that is an Associate of the first- mentioned Carrier or Carriage Service Provider or of whom the first-mentioned Carrier or Carriage Service Provider is an Associate; or
(c) any Carrier or Carriage Service Provider that is an Associate of another person of whom the first-mentioned Carrier or Carriage Service Provider is also an Associate,
taken together, does not exceed 12,000.
5.3 For the avoidance of doubt, for the purposes of clause 5.2 an end-user will be supplied using the SBAS provided by a Carrier or Carriage Service Provider whether or not the Carrier or Carriage Service Provider:
(a) supplies the end-user itself:
(b) provides the SBAS to another service provider and that service is used to supply an end-user.
Note: An access determination may provide that any or all of the standard access obligations are not applicable to a carrier or carriage service provider, or restrict or limit the applications to a carrier or carriage service provider: paragraphs 152BC(3)(h) and (i) of the Competition and Consumer Act 2010.
INDEX TO SCHEDULES
Schedule |
| Page | |
1 | Interpretation and definitions | 5 | |
2 | Price | 11 | |
3 | Non Price
| Billing and notification | 13 |
4 | Creditworthiness and Security | 19 | |
5 | General dispute resolution procedures | 23 | |
6 | Confidentiality | 27 | |
7 | Suspension and Termination | 36 | |
8 | Liability and Indemnity | 41 | |
9 | Communications with end-users | 43 | |
10 | Network modernisation and upgrade notice periods | 45 | |
11 | Changes to operating manuals | 48 | |
12 | Recourse to regulated terms | 49 | |
Schedule 1 - Interpretation and definitions
Interpretation
In this IAD, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
(b) the words “including” and “include” mean “including, but not limited to”; and
(c) terms defined in the Competition and Consumer Act 2010 or the Telecommunications Act 1997 have the same meaning.
Definitions
ACCC means the Australian Competition and Consumer Commission
Access Agreement has the same meaning as given to that term in section 152BE of the CCA
Access Provider has the same meaning as given to that term in subsection 152AR(2) of the CCA
Access Seeker has the same meaning as given to that term in section 152AG of the CCA
ACDC means the Australian Commercial Disputes Centre Limited
ACDC Guidelines means the Guidelines for Commercial Mediation published by the ACDC as in existence on 27 July 2021 and available at: https://disputescentre.com.au/adr-guidelines/
ACMA means the Australian Communications and Media Authority
Aggregation Charge means a charge for the transport of customer traffic from multiple end-users on an aggregated basis
AVC TC-4 refers to the NBN Co product AVC TC-4 which is an Ethernet-based Layer 2 virtual connection on the NBN Co network that carries traffic to and from a user-network interface used to serve a premises, in traffic class 4. See section 3.1 and 3.2 of the Product Description of NBN Co Ethernet Bitstream Service at https://www.nbnco.com.au/content/dam/nbn/documents/sell/wba/2021/sfaa-wba-nbn-ethernet-product-description-20210505.pdf as in existence on 27 July 2021
Billing Dispute means a dispute relating to a Charge or an invoice issued by the Access Provider
Billing Dispute Notice means a notice given pursuant to clause 3.10 in Schedule 3
Billing Dispute Procedures means the procedures set out in clauses 3.10 to 3.30 in Schedule 3
Breach Notice has the meaning set out in clause 7.5 of Schedule 7
Business Day means any day other than Saturday or Sunday or a day which is a gazetted public holiday in the place concerned
Calendar Day means a day reckoned from midnight to midnight
Carriage Service Provider has the same meaning given to that term in section 87 of the Telecommunications Act 1997 (Cth)
Carrier has the same meaning given to that term in section 7 of the Telecommunications Act 1997 (Cth)
Carriage Service has the same meaning given to that term in section 7 of the Telecommunications Act 1997 (Cth)
CCA means the Competition and Consumer Act 2010 (Cth)
Charge means a charge for the supply of a Service
Confidential Information means all information, know-how, ideas, concepts, technology, manufacturing processes, industrial, marketing and commercial knowledge of a confidential nature (whether in tangible or intangible form and whether coming into existence before or after the commencement of this IAD) relating to or developed in connection with or in support of the Service supplied under this IAD (the “first mentioned party”) but does not include:
(a) information which is or becomes part of the public domain (other than through any breach of this IAD);
(b) information rightfully received by the other party from a third person without a duty of confidentiality being owed by the other party to the third person, except where the other party has knowledge that the third person has obtained that information either directly or indirectly as a result of a breach of any duty of confidence owed to the first mentioned party; or
(c) information which has been independently developed or obtained by the other party;
or
(d) information about Services supplied by the Access Provider (including where that information is generated by the Access Provider) that has been aggregated with other information of a similar or related nature, such that the Access Seeker cannot be identified by the information or any part of it
CVC Inclusion means a CVC TC-4 symmetrical bandwidth inclusion. See section 11 of the Price List of NBN Co Wholesale Broadband Agreement at https://www.nbnco.com.au/content/dam/nbn/documents/sell/wba/2021/sfaa-wba-nbn-ethernet-price-list-20210505.pdf as in existence on 27 July 2021
CVC TC-4 refers to the NBN Co product CVC TC-4 which is Ethernet-based Layer 2 virtual capacity on the NBN Co Network used to carry customer traffic between multiple access virtual circuits in a connectivity serving area on an aggregated basis and the network-network interface at the point of interconnection serving that connectivity serving area, in traffic class 4. See section 2.1 and 2.2 of the Product Description of NBN Co Ethernet Bitstream Service at https://www.nbnco.com.au/content/dam/nbn/documents/sell/wba/2021/sfaa-wba-nbn-ethernet-product-description-20210505.pdf as in existence on 27 July 2021
Disclosing Party has the meaning set out in clause 6.5 in Schedule 6 of this IAD
Emergency means an emergency due to an actual or potential occurrence (such as fire, flood, storm, earthquake, explosion, accident, epidemic or war-like action) which:
(a) endangers or threatens to endanger the safety or health of persons or
(b) destroys or damages, or threatens to destroy or damage property, being an emergency which requires a significant and co-ordinated response
Emergency Network Modernisation and Upgrade means a modernisation or upgrade of a Network that is required or reasonably necessary and is a proportionate response to address an Emergency
Equivalent Period of Notice means a period of notice commencing at the time that the Access Provider has approved and allocated the capital expenditure or otherwise approved and made a decision to commit to a Major Network Modernisation and Upgrade
Ethernet has the same meaning given to that term by the Institute of Electrical and Electronics Engineers
Event means an act, omission or event relating to or arising out of this IAD or part of this IAD
Expert Committee means a committee established under clause 5.11 in Schedule 5
Fault means:
(a) a failure in the normal operation of a Network or in the delivery of a Service; or
(b) any issue as to the availability or quality of a Service supplied to an end-user via the Access Seeker, notified by the end-user to the Access Seeker’s help desk, that has been reasonably assessed by the Access Provider as being the Access Provider’s responsibility to repair
Fibre Access Broadband service has the meaning given by Annexure 1 to the written instrument (as available on the ACCC’s website) by which the ACCC varied, pursuant to subsection 152AL(3) of the CCA, its declaration of the SBAS and which took effect on 27 July 2021
General Notification has the meaning set out in clause 10.1 in Schedule 10
HFC network has the same meaning as hybrid fibre-coaxial network in section 7 of the Telecommunications Act 1997 (Cth)
IAD means Interim Access Determination
Indemnifying Party means the Party giving an indemnity under this IAD
Individual Notification has the meaning set out in clause 10.1 of Schedule 10
Initiating Notice has the meaning as set out in clause 5.11 of Schedule 5
Innocent Party means the Party receiving the benefit of an indemnity under this IAD
LBAS means the local bitstream access service as described in Annexure 1 to the written instrument (as available on the ACCC’s website), dated 24 February 2012, by which the ACCC declared the LBAS pursuant to subsection 152AL(3) of the CCA and which took effect on 27 July 2021
Liability (of a party) means any liability of that party (whether in contract, in tort, under statute or in any other way and whether due to negligence, willful or deliberate breach or any other cause) under or in relation to this IAD, or part of this IAD or in relation to any Event or series of related Events
Listed Carriage Service has the same meaning given to that term in section 7 of the Telecommunications Act 1997 (Cth)
Loss includes liability, loss, damage, costs, charges or expenses (including legal costs)
Major Network Modernisation and Upgrade means a modernisation or upgrade that results in a Service no longer being supplied or adversely affects the quality of that Service (or any services supplied by an Access Seeker to their end-users using the Service), but does not mean, or include, an Emergency Network Modernisation and Upgrade or a National Broadband Network related upgrade
Month means a period commencing at the beginning of any day of a named month and ending:
(a) at the end of the day before the corresponding day of the next named month; or
(b) if there is no such corresponding day – at the end of the next named month
National Broadband Network means a national telecommunications network for the high-speed carriage of communications, where NBN Co has been, is, or is to be, involved in the creation or development of the network. To avoid doubt, it is immaterial whether the creation or development of the network is, to any extent, attributable to:
(a) the acquisition of assets that were used, or for use, in connection with another telecommunications network; or
(b) the obtaining of access to assets that are also used, or for use, in connection with another telecommunications network
NBN Co means NBN Co Limited (ACN 136 533 741), as the company exists from time to time (even if its name is later changed)
Network of a party, means that party’s system, or series of systems, that carries, or is capable of carrying communications by means of guided or unguided electromagnetic energy
Non-Billing Dispute means a dispute other than a Billing Dispute
Ongoing Creditworthiness Information has the meaning as set out in clause 4.8 of Schedule 4 of this IAD
Overage Amount has the meaning as set out in section 11 of the Price List of NBN Co Wholesale Broadband Agreement at https://www.nbnco.com.au/content/dam/nbn/documents/sell/wba/2021/sfaa-wba-nbn-ethernet-price-list-20210505.pdf as in existence on 27 July 2021
Party means a party to this IAD
People of a party, means each of that party’s directors, officers, employees, agents, contractors, advisers and representatives but does not include that party’s end-users or the other party
Prohibited Traffic means traffic offered across a POI for which there is no agreement between the Access Provider and the Access Seeker that the Access Provider will carry such traffic or provide a related service to the Access Seeker
Regulatory Determination means an access determination or a binding rule of conduct
Representative of a Party means each of that party’s directors, officers, employees, agents, contractors, advisers and representatives, but does not include that Party’s end-users or the other Party
SBAS means the superfast broadband access service as described in Annexure 1 to the written instrument (as available on the ACCC’s website), by which the ACCC varied, pursuant to subsection 152AL(3) of the CCA, its declaration of the SBAS and which took effect on 27 July 2021
Security means the amount and type of security provided, or required to be provided, to the Access Provider in respect of the provision by the Access Provider of Services, as set out in Schedule 4
Security Deposit means any sum of money deposited by the Access Seeker with the Access Provider, from time to time, for the purposes of fulfilling in whole or in part the requirement under this IAD that the Access Seeker provide Security to the Access Provider
Service means a service declared under section 152AL of the CCA
Structural Separation Undertaking means:
(a) an undertaking given by Telstra under subsection 577A(1) of the Telecommunications Act 1997 (Cth) which came into force in accordance with section 577AB, and any amendment to that undertaking which comes into force in accordance with subsection 577B(6); and
(b) a migration plan approved by the ACCC under Subdivision B of Division 2 of Part 33 of the Telecommunications Act 1997 (Cth) which, pursuant to subsection 577BE(5), formed part of the undertaking referred to in paragraph (a), and any amendment to that plan which is approved by the ACCC in accordance with section 577BF,and includes all binding schedules, annexures and attachments to such documents
Suspension Event has the meaning set out in clause 7.2 of Schedule 7
Suspension Notice has the meaning set out in clause 7.2 of Schedule 7
Schedule 2 - Price
2.1 This Schedule sets out monthly prices for the wholesale products specified in clause 4.3 of this IAD.
2.2 In the case of Telstra Corporation Limited and the products specified in clause 4.3(a) the following charges apply for the duration of this IAD:
Charge component |
| Interim price |
Port Zone 1 per month |
| $13.01 |
Port Zone 2/3 per month |
| $18.15 |
Aggregation per Mbps/month |
| $29.27 |
2.3 In the case of other Carriers or Carriage Service Providers and the products specified in 4.3(b) the following charges apply:
Charge component | Initial price | CVC Inclusion (Mbps) | Subsequent prices |
Effective price per month | $37.00 | 1.50 | The price for the NBN Co Bundled AVC TC-4 25/5 Mbps and CVC TC-4 product components, as amended from time to time (including discounts) |
CVC Overage per Mbps | $8.00 |
| The price for the NBN Co Overage Amount as amended from time to time (including discounts) |
The initial price listed above for effective price per month corresponds to the NBN Co price for Bundled AVC TC-4 25/5 Mbps and CVC TC-4 product components. The initial price for CVC Overage per Mbps/month corresponds to the NBN Co pricing for Overage Amount. The Overage amount applies if, across a billing period, the CVC ordered by an access seeker is greater than the CVC Inclusion.
The initial price will apply until such time as NBN Co publishes subsequent pricing for either, or both, of these two NBN Co products. The subsequent pricing will apply to carriers and carriage service providers three calendar months from the date of publication of the subsequent pricing on the NBN Co website, or the date that the published subsequent pricing takes effect, whichever is the later date.
Schedule 3 - Billing and notification
3.1 The Access Seeker’s liability to pay Charges for the Service to the Access Provider arises at the time the Service is supplied by the Access Provider to the Access Seeker, unless the parties agree otherwise.
3.2 The Access Seeker must pay Charges in accordance with this IAD, including but not limited to this Schedule 3.
3.3 The Access Provider must provide the Access Seeker with an invoice each month in respect of Charges payable for the Service unless the parties agree otherwise
3.4 The Access Provider is entitled to invoice the Access Seeker for previously uninvoiced Charges or Charges which were understated in a previous invoice, provided that:
a) the Charges to be retrospectively invoiced can be reasonably substantiated to the Access Seeker by the Access Provider; and
b) subject to clause 3.5, no more than 6 Months have elapsed since the date the relevant amount was incurred by the Access Seeker’s customer, except where:
i. the Access Seeker gives written consent to a longer period (such consent not to be unreasonably withheld); or
ii. to the extent that the Charges relate to services supplied by an overseas carrier and the Access Provider has no control over the settlement arrangements as between it and the overseas carrier, in which case the Access Provider shall invoice such amounts as soon as is reasonably practicable.
3.5 The parties must comply with the provisions of any applicable industry standard made by the ACMA pursuant to Part 6 of the Telecommunications Act 1997 (Cth) (Standard) and the provisions of any applicable industry code registered pursuant to Part 6 of the Telecommunications Act 1997 (Cth) (Code) in relation to billing. Where the effect of a Standard or Code is that an Access Seeker is not permitted to invoice its customers for charges that are older than a specified number of days, weeks or months (the Backbilling Period), the Access Provider must not invoice the Access Seeker for a Charge which was incurred by the Access Seeker’s customers that, as at the date the invoice is issued, is older than the Backbilling Period.
3.6 Subject to clause 3.12
a) An invoice is payable in full 30 Calendar Days after the date the invoice was issued or such other date as agreed between the parties.
b) The Access Seeker may not deduct, withhold, or set-off any amounts for accounts in credit, for counter-claims or for any other reason or attach any condition to the payment, unless otherwise agreed by the Access Provider.
c) All amounts owing and unpaid after the due date shall accrue interest daily from the due date up to and including the date it is paid at the rate per annum of the 90 day authorized dealers bank bill rate published in the Australian Financial Review on the first Business Day following the due date for payment, plus 2.5 per cent.
3.7 In addition to charging interest in accordance with clause 3.6 or exercising any other rights the Access Provider has at law or under this IAD, where an amount is outstanding and remains unpaid for more than 20 Business Days after it is due for payment, and is not an amount subject to any Billing Dispute notified in accordance with this IAD, the Access Provider may take action, without further notice to the Access Seeker, to recover any such amount as a debt due to the Access Provider.
3.8 Unless the parties otherwise agree, there is no setting-off (i.e. netting) of invoices except where a party goes into liquidation, in which case the other party may set-off. However, in order to minimise administration and financial costs, the parties must consider in good faith set-off procedures for inter-party invoices which may require the alignment of the parties’ respective invoice dates and other procedures to allow set-off to occur efficiently.
3.9 The Access Provider must, at the time of issuing an invoice, provide to the Access Seeker all information reasonably required by the Access Seeker to identify and understand the nature and amount of each Charge on the invoice, and the service the Charge relates to. Nothing in this clause 3.9 is intended to limit subsections 152AR(6) and 152AR(7) of the CCA.
3.10 If the Access Seeker believes a Billing Dispute exists, it may invoke the Billing Dispute Procedures by providing written notice to the Access Provider (Billing Dispute Notice). A Billing Dispute must be initiated only in good faith.
3.11 Except where a party seeks urgent injunctive relief, the Billing Dispute Procedures must be invoked before either party may begin legal proceedings in relation to any Billing Dispute.
3.12 If a Billing Dispute Notice is given to the Access Provider by the due date for payment of the invoice containing the Charge which is being disputed, the Access Seeker may withhold payment of the disputed Charge until such time as the Billing Dispute has been resolved or otherwise terminated. Otherwise, the Access Seeker must pay the invoice in full in accordance with this IAD (but subject to the outcome of the Billing Dispute Procedures).
3.13 Except where payment is withheld in accordance with clause 3.12, the Access Provider is not obliged to accept a Billing Dispute Notice in relation to an invoice unless the invoice has been paid in full.
3.14 A Billing Dispute Notice must be given to the Access Provider in relation to a Charge, at the earlier of:
a) as soon as reasonably practicable after the Access Seeker becomes aware a Billing Dispute exists, or
b) within six Months of the invoice for the Charge being issued in accordance with clause 3.6.
3.15
a) The Access Provider must acknowledge receipt of a Billing Dispute Notice within two Business Days by providing the Access Seeker with a reference number.
b) Within five Business Days of acknowledging a Billing Dispute Notice under clause 3.15(a), the Access Provider must, by written notice to the Access Seeker:
c) If the Access Provider fails to accept or reject the Billing Dispute Notice within five Business Days of acknowledging the Billing Dispute Notice under clause 3.15(a), the Access Provider is taken to have accepted the Billing Dispute Notice.
d) For avoidance of doubt, if the Access Provider rejects a Billing Dispute Notice under clause 3.15(b)(ii)C, the Access Seeker is not prevented from providing an amended Billing Dispute Notice to the Access Provider relating to the same dispute provided that the amended Billing Dispute Notice is provided within the timeframe under clause 3.14.
3.16 The Access Seeker must, as early as practicable and in any case within five Business Days, unless the Parties agree on a longer period, after the Access Provider acknowledges a Billing Dispute Notice, provide to the other party any further relevant information or materials (which were not originally provided with the Billing Dispute Notice) on which it intends to rely (provided that this obligation is not intended to be the same as the obligation to make discovery in litigation).
3.17 Without affecting the time within which the Access Provider must make the proposed resolution under clause 3.1, the Access Provider may request additional information from the Access Seeker that it reasonably requires for the purposes of making a proposed resolution pursuant to clause 3.18. This additional information may be requested up to 10 Business Days prior to the date on which the Access Provider must make the proposed resolution under clause 3.18. The Access Seeker must provide the requested information within five Business Days of receiving the request. If the Access Seeker fails to do so within five Business Days, the Access Provider may take the Access Seeker’s failure to provide additional information into account when making its proposed resolution.
3.18 The Access Provider must try to resolve any Billing Dispute as soon as practicable and in any event within 30 Business Days of accepting a Billing Dispute Notice under clause 3.15 (or longer period if agreed by the parties), by notifying the Access Seeker in writing of its proposed resolution of a Billing Dispute. That notice must:
a) explain the Access Provider’s proposed resolution (including providing copies where necessary of all information relied upon in coming to that proposed resolution); and
b) set out any action to be taken by:
If the Access Provider reasonably considers that it will take longer than 30 Business Days after accepting a Billing Dispute Notice to provide a proposed resolution, then the Access Provider may request the Access Seeker’s consent to an extension of time to provide the proposed resolution under this clause 3.18 (such consent not to be unreasonably withheld).
3.19 If the Access Seeker does not agree with the Access Provider’s decision to reject a Billing Dispute Notice under clause 3.15 or the Access Provider’s proposed resolution under clause 3.17, it must object within 15 Business Days of being notified of such decisions (or such longer time as agreed between the parties). Any objection lodged by the Access Seeker with the Access Provider must be in writing and state:
a) what part(s) of the proposed resolution it objects to;
b) the reasons for objection;
c) what amount it will continue to withhold payment of (if applicable); and
d) any additional information to support its objection.
If the Access Seeker lodges an objection to the proposed resolution under this clause, the Access Provider must, within 5 Business Days of receiving the objection, review the objection and
e) provide a revised proposed resolution (Revised Proposed Resolution in this Schedule 3); or
f) confirm its proposed resolution
3.20 Any:
a) withdrawal, adjustment or refund of the disputed Charge by the Access Provider; or
b) payment of the disputed Charge by the Access Seeker (as the case may be),
must occur as soon as practicable and in any event within one Month of the Access Provider’s notice of its proposed resolution under clause 3.18 or its Revised Proposed Resolution under clause 3.19 (as applicable), unless the Access Seeker escalates the Billing Dispute under clause 3.23. If the Access Provider is required to make a withdrawal, adjustment or refund of a disputed Charge under this clause but its next invoice (first invoice) is due to be issued within 48 hours of its proposed resolution under clause 3.18 or its Revised Proposed Resolution under clause 3.19 (as applicable), then the Access Provider may include that withdrawal, adjustment or refund in the invoice following the first invoice notwithstanding that this may occur more than one Month after the Access Provider’s notice of its proposed resolution or Revised Proposed Resolution.
3.21 Where the Access Provider is to refund a disputed Charge, the Access Provider must pay interest (at the rate set out in clause 3.6) on any refund. Interest accrues daily from the date on which each relevant amount to be refunded was paid to the Access Provider, until the date the refund is paid.
3.22 Where the Access Seeker is to pay a disputed Charge, the Access Seeker must pay interest (at the rate set out in clause 3.6) on the amount to be paid. Interest accrues daily from the date on which each relevant amount was originally due to be paid to the Access Provider, until the date the amount is paid.
3.23 If
a) the Access Provider has not proposed a resolution according to clause 3.18 or within the timeframe specified in clause 3.18, or
b) the Access Seeker, having first submitted an objection under clause 3.19 is not satisfied with the Access Provider’s Revised Proposed Resolution, or the Access Provider’s confirmed proposed resolution, within the timeframes specified in clause 3.19,
the Access Seeker may escalate the matter under clause 3.24. If the Access Seeker does not do so within 15 Business Days after the time period stated in clause 3.18 or after being notified of the Access Provider’s Revised Proposed Resolution under clause 3.19(e) or confirmed proposed resolution under clause 3.19(f) (or a longer period if agreed by the parties), the Access Seeker is deemed to have accepted the Access Provider’s proposed resolution made under clause 3.18 or Revised Proposed Resolution under clause 3.19(e) or confirmed proposed solution under clause 3.19(f) and clauses 3.21 and 3.22 apply.
3.24 If the Access Seeker wishes to escalate a Billing Dispute, the Access Seeker must give the Access Provider a written notice:
a) stating why it does not agree with the Access Provider’s Revised Proposed Resolution or confirmed proposed resolution; and
b) seeking escalation of the Billing Dispute.
3.25 A notice under clause 3.24 must be submitted to the nominated billing manager for the Access Provider, who must discuss how best to resolve the Billing Dispute with the Access Seeker’s nominated counterpart. If the Parties are unable to resolve the Billing Dispute within five Business Days of notice being given under clause 3.24 (or such longer period as agreed between the parties) the Billing Dispute must be escalated to the Access Provider’s nominated commercial manager and the Access Seeker’s nominated counterpart who must meet in an effort to resolve the Billing Dispute.
3.26 If the Billing Dispute cannot be resolved within five Business Days of it being escalated to the Access Provider’s nominated commercial manager and the Access Seeker’s nominated counterpart under clause 3.25 (or such longer period as agreed between the parties):
a) either party may provide a written proposal to the other party for the appointment of a mediator to assist in resolving the dispute. Mediation must be conducted in accordance with the mediation guidelines of the Australian Commercial Disputes Centre (ACDC) and concluded within three Months of the proposal (unless the parties agree to extend this timeframe); or
b) if the parties either do not agree to proceed to mediation within five Business Days of being able to propose the appointment of a mediator under clause 3.26(a) or are unable to resolve the entire Billing Dispute by mediation, either party may commence legal proceedings to resolve the matter.
3.27 The parties must ensure that any person appointed or required to resolve a Billing Dispute takes into account the principle that the Access Seeker is entitled to be recompensed in circumstances where the Access Seeker is prevented (due to regulatory restrictions on retrospective invoicing) from recovering from its end-user an amount which is the subject of a Billing Dispute (a Backbilling Loss), provided that:
a) such principle applies only to the extent to which the Billing Dispute is resolved against the Access Provider; and
b) such principle applies only to the extent to which it is determined that the Backbilling Loss was due to the Access Provider unnecessarily delaying resolution of the Billing Dispute.
c) Each party must continue to fulfil its obligations under this IAD while a Billing Dispute and the Billing Dispute Procedures are pending.
3.28 Each party must continue to fulfil its obligations under this IAD while a Billing Dispute and the Billing Dispute Procedures are pending.
3.29 All discussions and information relating to a Billing Dispute must be communicated or exchanged between the parties through the representatives of the parties set out in clause 3.25 (or their respective nominees).
3.30 There is a presumption that all communications between the Parties during the course of a Billing Dispute are made on a without prejudice and confidential basis.
3.31 If it is determined by the Billing Dispute Procedures, any other dispute resolution procedure, or by agreement between the parties, that three or more out of any five consecutive invoices for a given Service are incorrect by 5 per cent or more, then, for the purposes of clause 3.21, the interest payable by the Access Provider in respect of the overpaid amount of the invoices in question is the rate set out in clause 3.6, plus 2 per cent. The remedy set out in this clause 3.31 is without prejudice to any other right or remedy available to the Access Seeker.
Schedule 4 - Creditworthiness and Security
4.1 Unless otherwise agreed by the Access Provider, the Access Seeker must (at the Access Seeker’s sole cost and expense) provide to the Access Provider and maintain, on terms and conditions reasonably required by the Access Provider and subject to clause 4.2, the Security (as is determined having regard to clause 4.3 and as may be varied pursuant to clause 4.4) in respect of amounts owing by the Access Seeker to the Access Provider under this IAD.
4.2
a) The Access Seeker acknowledges that unless otherwise agreed by the Access Provider, it must maintain (and the Access Provider need not release or refund) the Security specified in clause 4.1 for a period of six Months following (but not including) the date on which the last of the following occurs:
b) Notwithstanding clause 4.2(a), the Access Provider has no obligation to release the Security if, at the date the Access Provider would otherwise be required to release the Security under clause 4.2(a), the Access Provider reasonably believes any person, including a provisional liquidator, administrator, trustee in bankruptcy, receiver, receiver and manager, other controller or similar official, has a legitimate right to recoup or claim repayment of any part of the amount paid or satisfied, whether under the laws or preferences, fraudulent dispositions or otherwise.
4.3 The Security (including any varied Security) may only be requested where an Access Provider has reasonable grounds to doubt the Access Seeker’s ability to pay for services, and must be of an amount and in a form determined reasonably by the Access Provider taking into account all the relevant circumstances. As a statement of general principle the amount of any Security is calculated by reference to:
a) the aggregate value of all Services likely to be provided to the Access Seeker under this IAD over a reasonable period; or
b) the value of amounts invoiced in respect of the Service but unpaid (excluding any amounts in respect of which there is a current Billing Dispute notified in accordance with this IAD).
For the avoidance of doubt, any estimates, forecasts or other statements made or provided by the Access Seeker may be used by the Access Provider in determining the amount of a Security
4.4 Examples of appropriate forms of Security, having regard to the factors referred to in clause 4.3, may include without limitation:
a) fixed and floating charges;
b) personal guarantees from directors;
c) Bank Guarantees;
d) letters of comfort
e) mortgages;
f) a right of set-off;
g) a Security Deposit; or
h) a combination of the forms of security referred to in paragraphs (a) to (g) above.
If any Security is or includes a Security Deposit, then:
i) the Access Provider is not obliged to invest the Security Deposit or hold the Security Deposit in an interest bearing account or otherwise; and
j) the Access Seeker is prohibited from dealing with the Security Deposit or its rights to that Security Deposit (including by way of assignment or granting of security).
If any security is or includes a Bank Guarantee and that Bank Guarantee (Original Bank Guarantee) has an expiry date which is the last day by which a call may be made under a Bank Guarantee, the Access Seeker must procure a replacement Bank Guarantee for the amount guaranteed by the Original Bank Guarantee no later than two Months prior to the expiry date of the Original Bank Guarantee, such replacement Bank Guarantee to have an expiry date of no less than 14 Months from the date of delivery of the replacement Bank Guarantee.
If the Access Seeker fails to procure a replacement Bank Guarantee, then in addition to any other of the Access Provider’s rights under this IAD, the Access Provider may, at any time in the Month prior to the expiry date of the Bank Guarantee, make a call under the Bank Guarantee for the full amount guaranteed. The amount paid to the Access Provider pursuant to a call on the Bank Guarantee will become a Security Deposit.
4.5 The Access Provider may from time to time where the circumstances reasonably require, request Ongoing Creditworthiness Information from the Access Seeker to determine the ongoing creditworthiness of the Access Seeker. The Access Seeker must supply Ongoing Creditworthiness Information to the Access Provider within 15 Business Days of receipt of a request from the Access Provider for such information. The Access Provider may, as a result of such Ongoing Creditworthiness Information, having regard to the factors referred to in clause 4.3 and subject to clause 4.7, reasonably require the Access Seeker to alter the amount, form or the terms of the Security (which may include a requirement to provide additional security), and the Access Seeker must provide that altered Security within 20 Business Days of being notified by the Access Provider in writing of that requirement.
4.6 The Access Seeker may from time to time request the Access Provider to consent (in writing) to a decrease in the required Security and/or alteration of the form of the Security. The Access Provider must, within 15 Business Days of the Access Seeker’s request, comply with that request if, and to the extent, it is reasonable to do so (having regard to the factors referred to in clause 4.3). The Access Provider may request, and the Access Seeker must promptly provide, Ongoing Creditworthiness Information, for the purposes of this clause 4.6.
4.7 If the Access Seeker provides Ongoing Creditworthiness Information to the Access Provider as required by this Schedule 4, the Access Seeker must warrant that such information is true, fair, accurate and complete as at the date on which it is received by the Access Provider and that there has been no material adverse change in the Access Seeker’s financial position between the date the information was prepared and the date it was received by the Access Provider. If there has been a material adverse change in the Access Seeker’s financial position between the date the information was prepared and the date it was received by the Access Provider, the Access Seeker must disclose the nature and effect of the change to the Access Provider at the time the information is provided.
4.8 For the purposes of this Schedule 4, Ongoing Creditworthiness Information means:
a) a copy of the Access Seeker’s most recent published audited balance sheet and published audited profit and loss statement (together with any notes attached to or intended to be read with such balance sheet or profit and loss statement);
b) a credit report in respect of the Access Seeker or, where reasonably necessary in the circumstances, any of its owners or directors (Principals) from any credit reporting agency, credit provider or other third party. The Access Seeker must co-operate and provide any information necessary for that credit reporting agency, credit provider or other independent party to enable it to form an accurate opinion of the Access Seeker’s creditworthiness. To that end, the Access Seeker agrees to procure written consents (as required under the Privacy Act 1988 (Cth)) from such of its Principals as is reasonably necessary in the circumstances to enable the Access Provider to:
c) a letter, signed by the company secretary or duly authorised officer of the Access Seeker, stating that the Access Seeker is not insolvent and not under any external administration (as defined in the Corporations Act 2001 (Cth)) or under any similar form of administration under any laws applicable to it in any jurisdiction; and
d) the Access Seeker’s credit rating, if any has been assigned to it; and
e) any other information reasonably required to determine the ongoing creditworthiness of the Access Seeker, as agreed between the parties before the request under clause 4.5 is made.
4.9 The Access Seeker may require a confidentiality undertaking to be given by any person having access to confidential information contained in its Ongoing Creditworthiness Information prior to such information being provided to that person.
4.10 Subject to this Schedule 4, the parties agree that a failure by the Access Seeker to provide the warranties set out in clause 4.7 or to provide Ongoing Creditworthiness Information constitutes:
a) an event entitling the Access Provider to alter the amount, form or terms of the Security (including an entitlement to additional Security) of the Access Seeker and the Access Seeker must provide that altered Security within 15 Business Days after the end of the period set out clause 4.5; or
b) breach of a material term or condition of this IAD.
Any disputes arising out of or in connection with Schedule 4 must be dealt with in accordance with the procedures in Schedule 5. Notwithstanding that a dispute arising out of or in connection with Schedule 4 has been referred to the procedures in Schedule 5 and has not yet been determined, nothing in this clause 4.10 or Schedule 5 prevents the Access Provider from exercising any of its rights to suspend the supply of a Service under Schedule 7.
Schedule 5 - General dispute resolution procedures
a) in the case of a Billing Dispute, the dispute must be managed in accordance with the Billing Dispute Procedures; or
b) subject to clause 5.2, in the case of a Non-Billing Dispute, the dispute must be managed in accordance with the procedures set out in this Schedule 5.
5.2 To the extent that a Non-Billing Dispute is raised or arises in connection with, or otherwise relates to, a Billing Dispute, then unless otherwise determined, that Non-Billing Dispute must be resolved in accordance with the Billing Dispute Procedures. The Access Provider may seek a determination from an independent third party on whether a dispute initiated by the Access Seeker as a Billing Dispute is a Non-Billing Dispute. If the independent third party deems the dispute to be a Non-Billing Dispute, the Access Provider may provide written notice to the Access Seeker to pay any withheld amount to the Access Provider on the due date for the disputed invoice or if the due date has passed, immediately on notification being given by the Access Provider.
For the purposes of this clause 5.2:
a) the independent third party must be a person who:
b) the independent third party may include an arbiter from the ACDC.
5.3 If a Non-Billing Dispute arises, either party may, by written notice to the other, refer the Non-Billing Dispute for resolution under this Schedule 5. A Non-Billing Dispute must be initiated only in good faith.
5.4 Any Non-Billing Dispute notified under clause 5.3 must be referred:
a) initially to the nominated manager (or managers) for each party, who must endeavour to resolve the dispute within 10 Business Days of the giving of the notice referred to in clause 5.3 or such other time agreed by the parties; and
b) if the persons referred to in paragraph (a) above do not resolve the Non-Billing Dispute within the time specified under paragraph (a), then the parties may agree in writing within a further five Business Days to refer the Non-Billing Dispute to an Expert Committee under clause 5.11, or by written agreement submit it to mediation in accordance with clause 5.10.
5.5 If:
a) under clause 5.4 the Non-Billing Dispute is not resolved and a written agreement is not made to refer the Non-Billing Dispute to an Expert Committee or submit it to mediation; or,
b) under clause 5.10(f), the mediation is terminated; and
c) after a period of five Business Days after the mediation is terminated as referred to in paragraph (b), the parties do not resolve the Non-Billing Dispute or agree in writing on an alternative procedure to resolve the Non-Billing Dispute (whether by further mediation, written notice to the Expert Committee, arbitration or otherwise)
either party may terminate the operation of this dispute resolution procedure in relation to the Non-Billing Dispute by giving written notice of termination to the other party.
5.6 A party may not commence legal proceedings in any court (except proceedings seeking urgent interlocutory relief) in respect of a Non-Billing Dispute unless:
a) the Non-Billing Dispute has first been referred for resolution in accordance with the dispute resolution procedure set out in this Schedule 5 or clause 5.2 (if applicable) and a notice terminating the operation of the dispute resolution procedure has been issued under clause 5.5; or
b) the other party has failed to substantially comply with the dispute resolution procedure set out in this Schedule 5 or clause 5.2 (if applicable).
5.7 Each party must continue to fulfil its obligations under this IAD while a Non-Billing Dispute and any dispute resolution procedure under this Schedule 5 are pending.
5.8 All communications between the parties during the course of a Non-Billing Dispute and in connection with that Non-Billing Dispute, are made on a without prejudice and confidential basis.
5.9 Each party must, as early as practicable, and in any case within 14 Calendar Days unless a longer period is agreed between the parties, after the notification of a Non-Billing Dispute pursuant to clause 5.3, provide to the other party any relevant materials on which it intends to rely (provided that this obligation is not intended to be the same as the obligation to make discovery in litigation).
5.10 Where a Non-Billing Dispute is referred to mediation by way of written agreement between the parties, pursuant to clause 5.4(b):
a) any agreement must include:
b) it must be conducted in accordance with the ACDC Guidelines and the provisions of this clause 5.10. In the event of any inconsistency between them, the provisions of this clause 5.10 prevail;
c) it must be conducted in private;
d) in addition to the qualifications of the mediator contemplated by the ACDC Guidelines, the mediator must:
e) the parties must notify each other no later than 48 hours prior to mediation of the names of their representatives who will attend the mediation. Nothing in this subclause is intended to suggest that the parties are able to refuse the other’s chosen representatives or to limit other representatives from the parties attending during the mediation;
f) it must terminate in accordance with the ACDC Guidelines;
g) the parties must bear their own costs of the mediation including the costs of any representatives and must each bear half the costs of the mediator; and
h) any agreement resulting from mediation binds the parties on its terms.
5.11 The parties may by written agreement in accordance with clause 5.4(b), submit a Non-Billing Dispute for resolution by an Expert Committee (Initiating Notice), in which case the provisions of this clause 5.11 apply as follows:
a) The terms of reference of the Expert Committee are as agreed by the parties. If the terms of reference are not agreed within five Business Days after the date of submitting the Initiating Notice (or such longer period as agreed between the parties), the referral to the Expert Committee is deemed to be terminated.
b) An Expert Committee acts as an expert and not as an arbitrator.
c) The parties are each represented on the Expert Committee by one appointee.
d) The Expert Committee must include an independent chairperson agreed by the parties or, if not agreed, a nominee of the ACDC. The chairperson must have the qualifications listed in paragraphs 5.10(d)(i), (ii) and (iii).
e) Each party must be given an equal opportunity to present its submissions and make representations to the Expert Committee.
f) The Expert Committee may determine the dispute (including any procedural matters arising during the course of the dispute) by unanimous or majority decision.
g) Unless the parties agree otherwise the parties must ensure that the Expert Committee uses all reasonable endeavours to reach a decision within 20 Business Days after the date on which the terms of reference are agreed or the final member of the Expert Committee is appointed (whichever is the later) and undertake to co-operate reasonably with the Expert Committee to achieve that timetable.
h) If the dispute is not resolved within the timeframe referred to in clause 5.11(g), either party may by written notice to the other party terminate the appointment of the Expert Committee.
i) The Expert Committee has the right to conduct any enquiry as it thinks fit, including the right to require and retain relevant evidence during the course of the appointment of the Expert Committee or the resolution of the dispute.
j) The Expert Committee must give written reasons for its decision.
k) A decision of the Expert Committee is final and binding on the parties except in the case of manifest error or a mistake of law.
l) Each party must bear its own costs of the enquiry by the Expert Committee including the costs of its representatives, any legal counsel and its nominee on the Expert Committee and the parties must each bear half the costs of the independent member of the Expert Committee.
5.12 Schedule 5 does not apply to a Non-Billing Dispute to the extent that:
a) there is a dispute resolution process established in connection with, or pursuant to, a legal or regulatory obligation (including any dispute resolution process set out in a Structural Separation Undertaking)
b) a party has initiated a dispute under the dispute resolution process referred to in clause 5.12(a), and
c) the issue the subject of that dispute is the same issue in dispute in the Non-Billing Dispute.
a) use or copy such Confidential Information except as set out in this IAD; or
b) disclose or communicate, cause to be disclosed or communicated or otherwise make available such Confidential Information to any third person.
6.2 For the avoidance of doubt, information generated within the Access Provider’s Network as a result of or in connection with the supply of the relevant Service to the Access Seeker or the interconnection of the Access Provider’s Network with the Access Seeker’s Network (other than information that falls within paragraph (d) of the definition of Confidential Information) is the Confidential Information of the Access Seeker.
6.3 The Access Provider must upon request from the Access Seeker, disclose to the Access Seeker quarterly aggregate traffic flow information generated within the Access Provider’s Network in respect of a particular Service provided to the Access Seeker, if the Access Provider measures and provides this information to itself. The Access Seeker must pay the reasonable costs of the Access Provider providing that information.
6.4 Subject to clauses 6.5 and 6.10, Confidential Information of the Access Seeker may be:
a) used by the Access Provider:
b) disclosed only to personnel who, in the Access Provider’s reasonable opinion require the information to carry out or otherwise give effect to the purposes referred to in paragraph (a) above.
6.5 A party (Disclosing Party) may to the extent necessary use and/or disclose (as the case may be) the Confidential Information of the other party:
a) to those of the Disclosing Party’s directors, officers, employees, agents, contractors (including sub-contractors) and representatives to whom the Confidential Information is reasonably required to be disclosed in connection with the provision of the Service to which this IAD relates;
b) to any professional person for the purpose of obtaining advice in relation to matters arising out of or in connection with the supply of a Service under this IAD;
c) to an auditor acting for the Disclosing Party to the extent necessary to permit that auditor to perform its audit functions;
d) in connection with legal proceedings, arbitration, expert determination and other dispute resolution mechanisms set out in this IAD, provided that the Disclosing Party has first given as much notice (in writing) as is reasonably practicable to the other party so that the other party has an opportunity to protect the confidentiality of its Confidential Information;
e) as required by law provided that the Disclosing Party has first given as much notice (in writing) as is reasonably practicable to the other party, that it is required to disclose the Confidential Information so that the other party has an opportunity to protect the confidentiality of its Confidential Information, except that no notice is required in respect of disclosures made by the Access Provider to the ACCC under section 152BEA of the CCA;
f) with the written consent of the other party provided that, prior to disclosing the Confidential Information of the other party:
g) in accordance with a lawful and binding directive issued by a regulatory authority;
h) if reasonably required to protect the safety of personnel or property or in connection with an emergency;
i) as required by the listing rules of any stock exchange where that party’s securities are listed or quoted;
j) in accordance with a reporting obligation, or in response to a request from a regulatory authority or any other Government body, in connection with the Access Provider’s Structural Separation Undertaking where the party cannot comply with the reporting obligation or request without using or disclosing the Confidential Information, provided that:
k) in response to a request from a regulatory authority or any other Government body in connection with interception capability (as that term is used in Chapter 5 of the Telecommunications (Interception and Access) Act 1979 (Cth)) relating to access to a declared service, where the party cannot comply with the request without using or disclosing the Confidential Information, provided that:
6.6 Each party must co-operate in any action taken by the other party to:
a) protect the confidentiality of the other party’s Confidential Information; or
b) enforce its rights in relation to its Confidential Information.
6.7 Each party must establish and maintain security measures to safeguard the other party’s Confidential Information from unauthorised access, use, copying, reproduction or disclosure.
6.8 Confidential Information provided by one party to the other party is provided for the benefit of that other party only. Each party acknowledges that no warranty is given by the Disclosing Party that the Confidential Information is or will be correct.
6.9 Each party acknowledges that a breach of this Schedule 6 by one party may cause another party irreparable damage for which monetary damages would not be an adequate remedy. Accordingly, in addition to other remedies that may be available, a party may seek injunctive relief against such a breach or threatened breach of this Schedule 6.
6.10 If:
a) the Access Provider has the right to suspend or cease the supply of the Service under:
b) after suspension or cessation of supply of the Service under this IAD, the Access Seeker fails to pay amounts due or owing to the Access Provider by the due date for payment,
then the Access Provider may do one or both of the following:
c) notify and exchange information about the Access Seeker (including the Access Seeker’s Confidential Information) with any credit reporting agency or the Access Provider’s collection agent; and
d) without limiting clause 6.10, disclose to a credit reporting agency:
Annexure 1 of Schedule 6
Confidentiality undertaking form
[Amend where necessary]
CONFIDENTIALITY UNDERTAKING
I, of [employer’s company name] ([undertaking company]) undertake to [full name of party who owns or is providing the confidential information as the case requires] ([Provider]) that:
1 Subject to the terms of this Undertaking, I will keep confidential at all times the information listed in Attachment 1 to this Undertaking (Confidential Information) that is in my possession, custody, power or control.
2 I acknowledge that:
(a) this Undertaking is given by me to [Provider] in consideration for [Provider] making the Confidential Information available to me for the Approved Purposes (as defined below);
(b) all intellectual property in or to any part of the Confidential Information is and will remain the property of [Provider]; and
(c) by reason of this Undertaking, no licence or right is granted to me, or any other employee, agent or representative of [undertaking company] in relation to the Confidential Information except as expressly provided in this Undertaking.
3 I will:
(a) only use the Confidential Information for:
(i) the purposes listed in Attachment 2 to this Undertaking; or
(ii) any other purpose approved by [Provider] in writing;
(the Approved Purposes);
(b) comply with any reasonable request or direction from [provider] regarding the Confidential Information.
4 Subject to clause 5, I will not disclose any of the Confidential Information to any other person without the prior written consent of [Provider].
5 I acknowledge that I may disclose the Confidential Information to which I have access to:
(a) any employee, external legal advisors, independent experts, internal legal or regulatory staff of [undertaking company], for the Approved Purposes provided that:
(i) the person to whom disclosure is proposed to be made (the person) is notified in writing to [Provider] and [Provider] has approved the person as a person who may receive the Confidential Information, which approval shall not be unreasonably withheld;
(ii) the person has signed a confidentiality undertaking in the form of this Undertaking or in a form otherwise acceptable to [Provider]; and
(iii) a signed undertaking of the person has already been served on [Provider];
(b) other persons, if required to do so by law, but then only:
(i) if I notify [Provider] of that request within 7 days of receiving the request;
(ii) to the person(s) to whom I am obliged to provide the Confidential Information;
(iii) to the extent necessary as required by law; and
(iv) if I notify the recipient of the Confidential Information that the information is confidential and is the subject of this Undertaking to the [Provider]; and
(c) any secretarial, administrative and support staff, who perform purely administrative tasks, and who assist me or any person referred to in paragraph 5(a) for the Approved Purpose.
6 I will establish and maintain security measures to safeguard the Confidential Information from unauthorised access, use, copying, reproduction or disclosure and will protect the Confidential Information using the same degree of care as a prudent person in my position would use to protect their own confidential information.
7 Except as required by law and subject to paragraph 10 below, within 14 days after whichever of the following first occurs:
(a) termination of this Undertaking;
(b) my ceasing to be employed or retained by [undertaking company] (provided that I continue to have access to the Confidential Information at that time); or
(c) my ceasing to be working for [undertaking company] in respect of the Approved Purposes (other than as a result of ceasing to be employed by [undertaking company]);
I will destroy or deliver to [Provider] the Confidential Information and any documents or things (or parts of documents or things), constituting, recording or containing any of the Confidential Information in my possession, custody, power or control other than electronic records stored in IT backup system that cannot be destroyed or deleted.
8 Nothing in this Undertaking shall impose an obligation upon me in respect of information:
(a) that is in the public domain; or
(b) that has been obtained by me otherwise than from [Provider] in relation to this Undertaking;
provided that the information has not been obtained by me by reason of, or in circumstances involving, any breach of this Undertaking, any other confidentiality undertaking in favour of [Provider] for the Approved purpose, or by any other unlawful means.
9 I acknowledge that damages may not be a sufficient remedy for any breach of this Undertaking and that [Provider] may be entitled to specific performance or injunctive relief (as appropriate) as a remedy for any breach or threatened breach of this Undertaking, in addition to any other remedies available to [Provider] at law or in equity.
10 The obligations of confidentiality imposed by this Undertaking survive the destruction or delivery to [Provider] of the Confidential Information pursuant to paragraph 7 above.
11 I acknowledge that this Undertaking is governed by the law in force in the State of [insert relevant state] and I agree to submit to the non-exclusive jurisdiction of the court of that place.
Signed: ___________________________
Print name: ________________________________
Dated: ____________________________
Witness signature: ___________________________
Witness name: ___________________________
ATTACHMENT 1
Any document, or information in any document provided by [provider] to [undertaking company] which [provider] claims is confidential information for the purposes of this Undertaking.
ATTACHMENT 2
[Approved purpose(s)]
Schedule 7 – Suspension and Termination
a) during an Emergency; or
b) where in the reasonable opinion of the Access Provider, the supply of that Service or access to the Access Provider’s Network may pose a threat to safety of persons, hazard to equipment, threat to Network operation, access, integrity or Network security or is likely to impede the activities of authorised persons responding to an Emergency;
c) where, in the reasonable opinion of the Access Provider, the Access Seeker’s Network or equipment adversely affects or threatens to affect the normal operation of the Access Provider’s Network or access to the Access Provider’s Network or equipment (including for the avoidance of doubt, where the Access Seeker has delivered Prohibited Traffic onto the Access Provider’s Network);
d) where an event set out in clauses 7.8(a) to (i) occurs
e) and is entitled to continue such suspension until (as the case requires) the relevant event or circumstance giving rise to the suspension has been remedied.
7.2 If:
a) the Access Seeker has failed to pay monies payable under this IAD;
b) a Court determines that (and the decision is not subject to an appeal) the Access Seeker’s use of:
is in contravention of any law; or
c) the Access Seeker breaches a material obligation under this IAD (Suspension Event) and:
d) as soon as reasonably practicable after becoming aware of the Suspension Event, the Access Provider gives a written notice to the Access Seeker:
e) the Access Seeker fails to institute remedial action as specified in the Suspension Notice within 10 Business Days after receiving the Suspension Notice (in this clause 7.2, the Remedy Period), the Access Provider may, by written notice given to the Access Seeker as soon as reasonably practicable after the expiry of the Remedy Period:
f) refuse to provide the Access Seeker with the Service:
g) suspend the provision of the Service until the remedial action specified in the Suspension Notice is completed.
7.3 For the avoidance of doubt, subclause 7.2(a) does not apply to any monies payable that are the subject of a Billing Dispute that has been notified by the Access Seeker to the Access Provider in accordance with the Billing Dispute Procedures set out in this IAD.
7.4 In the case of a suspension pursuant to clause 7.2, the Access Provider must reconnect the Access Seeker to the Access Provider’s Network and recommence the supply of the Service as soon as practicable after there no longer exists a reason for suspension and the Access Provider must do so subject to payment by the Access Seeker of the Access Provider’s reasonable costs of suspension and reconnection.
7.5 If:
a) an Access Seeker ceases to be a carrier or carriage service provider; or
b) an Access Seeker ceases to carry on business for a period of more than 10 consecutive Business Days or
c) in the case of an Access Seeker, any of the reasonable grounds specified in subsection 152AR(9) of the CCA apply; or
d) an Access Seeker breaches a material obligation under this IAD, and:
e) the supply of the Service(s) to the Access Seeker has been suspended pursuant to the terms and conditions of this IAD for a period of three Months or more, the Access Provider may cease supply of the Service under this IAD by written notice given to the first-mentioned party at any time after becoming aware of the cessation, reasonable grounds or expiry of the Remedy Period specified in the Breach Notice (as the case may be).
7.5A If an Access Provider ceases to carry on business for a period of more than 10 consecutive Business Days, the other party may cease acquisition of the Service under this IAD by written notice given to the Access Provider at any time after becoming aware of the cessation.
7.6 A party must not give the other party both a Suspension Notice under clause 7.2 and a Breach Notice under clause 7.5 in respect of:
a) the same breach; or
b) different breaches that relate to or arise from the same act, omission or event or related acts, omissions or events;
except:
c) where a Suspension Notice has previously been given to the Access Seeker by the Access Provider in accordance with clause 7.2 in respect of a Suspension Event and the Suspension Event has not been rectified by the Access Seeker within the relevant Remedy Period specified in clause 7.2; and
d) where an Access Seeker has not rectified a Suspension Event, then notwithstanding clause 7.5(d)(ii), the time period for the purposes of clause 7.5(d)(ii) will be 20 Business Days from the expiry of the time available to remedy the Suspension Event.
7.7 For the avoidance of doubt, a party is not required to provide a Suspension Notice under clause 7.2 in respect of a breach before giving a Breach Notice in respect of that breach under clause 7.5.
7.8 Notwithstanding any other provision of this IAD, either Party may at any time immediately cease the supply of the Service under this IAD by giving written notice of termination to the other Party if:
a) an order is made or an effective resolution is passed for winding up or dissolution without winding up (otherwise than for the purposes of solvent reconstruction or amalgamation) of the other Party; or
b) a receiver, receiver and manager, official manager, controller, administrator (whether voluntary or otherwise), provisional liquidator, liquidator, or like official is appointed over the undertaking and property of the other Party; or
c) a holder of an encumbrance takes possession of the undertaking and property of the other party, or the other party enters or proposes to enter into any scheme of arrangement or any composition for the benefit of its creditors; or
d) the other party is or is likely to be unable to pay its debts as and when they fall due or is deemed to be unable to pay its debts pursuant to section 585 or any other section of the Corporations Act 2001 (Cth); or
e) as a result of the operation of section 459F or any other section of the Corporations Act 2001 (Cth), the other party is taken to have failed to comply with a statutory demand; or
f) a force majeure event substantially and adversely affecting the ability of a party to perform its obligations to the other party, continues for a period of three Months; or
g) the other party breaches any of the terms of any of its loans, security or like agreements or any lease or agreement relating to significant equipment used in conjunction with the business of that other party related to the supply of the Service under this IAD; or
h) the other party seeks or is granted protection from its creditors under any applicable legislation; or
i) anything analogous or having a substantially similar effect to any of the events specified above occurs in relation to the other party.
7.9 The cessation of the operation of this IAD:
a) does not operate as a waiver of any breach by a party of any of the provisions of this IAD; and
b) is without prejudice to any rights, liabilities or obligations of any party which have accrued up to the date of cessation.
7.10 Without prejudice to the parties’ rights upon termination of the supply of the Service under this IAD, or expiry or revocation of this IAD, the Access Provider must refund to the Access Seeker a fair and equitable proportion of those sums paid under this IAD by the Access Seeker which are periodic in nature and have been paid for the Service:
a) for a period extending beyond the date on which the supply of the Service under this IAD terminates, or this IAD ceases to have effect, and/or,
b) as applicable, in respect of a Service which has been suspended for a period of 10 or more consecutive Business Days under Schedule 7 of this IAD, for the period extending beyond that 10 Business Day suspension period to the extent the Service remains suspended under Schedule 7 of this IAD,
subject to any invoices or other amounts outstanding from the Access Seeker to the Access Provider. In the event of a dispute in relation to the calculation or quantum of a fair and equitable proportion, either party may refer the matter for dispute resolution in accordance with the dispute resolution procedures set out in Schedule 5 of this IAD.
Schedule 8 - Liability and Indemnity
8.1 Subject to clause 8.2, each Party’s liability in respect of:
a) the 12 Month period commencing on the date of the first supply of the Service under this IAD is limited to the aggregate amount paid or payable by the Access Seeker to the Access Provider for the Service provided by the Access Provider in that initial 12 Month period;
b) any subsequent 12 Month period commencing on any anniversary of the date of the first supply of the Service under this IAD is limited to the aggregate amount paid or payable by the Access Seeker to the Access Provider for the Service provided by the Access Provider in the 12 Month period immediately prior to that anniversary.
For the purposes of this clause 8.1, Liability arises when the act or omission giving rise to the Liability occurs, not when any claim is made by a party under this IAD in connection with that Liability.
8.2 The liability limitation in clause 8.1 does not apply to the Access Seeker’s liability to pay the Charges for the Service provided under this IAD, or the Parties’ indemnification obligations under clauses 8.3 and 8.4.
8.3 Each Party indemnifies the other Party against all Loss arising from the death of, or personal injury to, a Representative of the other Party, where the death or personal injury arises from:
a) an act or omission that is intended to cause death or personal injury; or
b) a negligent act or omission;
by the first Party or by a Representative of the first Party.
8.4 Each Party indemnifies the other Party against all Loss arising from any loss of, or damage to, the property of the other party (or the property of a representative of the other Party), where the loss or damage arises from:
a) an act or omission that is intended to cause death or personal injury; or
b) a negligent act or omission;
by the first Party or by a Representative of the first Party.
8.5 Each Party indemnifies the other Party against all Loss arising from a claim by a third person against the Innocent Party to the extent that the claim relates to a negligent act or omission by the first Party or by a Representative of the first Party.
8.6 Subject to clauses 8.3 and 8.4, a Party has no Liability to the other Party for or in respect of any consequential, special or indirect Loss or any loss of profits or data.
8.7 A Party has no Liability to the other Party for or in relation to any act or omission of, or any matter arising from or consequential upon any act or omission of, any end-user of a Party or any other third person who is not a Representative of a Party.
8.8 The Indemnifying Party is not obliged to indemnify the Innocent Party under this Schedule 8 to the extent that the liability the subject of the indemnity claim is caused or contributed to by:
a) a breach of this IAD;
b) an act intended to cause death, personal injury, or loss or damage to property; or
c) a negligent act or omission;
by the Innocent Party.
8.9 The Indemnifying Party is not obliged to indemnify the Innocent Party under this Schedule 8 or for in respect of a claim brought against the Innocent Party by an end-user of the Innocent Party, or a third person with whom the Innocent Party has a contractual relationship, to the extent that the Loss under such claim could have been excluded or reduced (regardless of whether such a Liability actually was excluded or reduced) by the Innocent Party in its contract with the end-user or third person.
8.10 The Innocent Party must take all reasonable steps to minimise the Loss it has suffered or is likely to suffer as a result of an event giving rise to an indemnity under this Schedule 8. If the Innocent Party does not take reasonable steps to minimise such Loss then the damages payable by the Indemnifying Party must be reduced as is appropriate in each case.
8.11 A Party’s liability to the other Party for Loss of any kind arising out of the supply of the Service under this IAD or in connection with the relationship established by it is reduced to the extent (if any) that the other Party causes or contributes to the Loss. This reduction applies whether the first Party’s liability is in contract, tort (including negligence), under statute or otherwise.
8.12 The Indemnifying Party must be given full conduct of the defence of any claim by a third party that is the subject of an indemnity under clause 8.3 or 8.4, including, subject to the Indemnifying Party first obtaining the written consent (which must not be unreasonably withheld) of the Innocent Party to the terms thereof, the settlement of such a claim.
8.13 Nothing in this Schedule 8 excludes or limits a Party’s entitlement to damages under Part 5 of the Telecommunications (Consumer Protection and Service Standards) Act 1999.
Schedule 9 - Communication with end users
9.1 The Access Provider may communicate and deal with an Access Seeker’s end-users as expressly provided in clauses 9.2 to 9.4 and as otherwise permitted by law.
9.2 Subject to clause 9.3, the Access Provider may communicate and deal with the Access Seeker’s end-users:
a) in relation to goods and services which the Access Provider currently supplies or previously supplied to the end-user provided that the Access Provider only communicates and deals through its retail division;
b) as members of the general public or a part of the general public or members of a particular class of recipients of carriage or other services;
c) where the Access Provider performs wholesale operations which require communications or dealings with such end-users, to the extent necessary to carry out such operations;
d) in a manner or in circumstances agreed by the Parties; or
e) in or in connection with an Emergency, to the extent it reasonably believes necessary to protect the safety of persons or property.
9.3 If:
a) an end-user of the Access Seeker initiates a communication with the Access Provider in relation to goods and/or services supplied to that end-user by the Access Seeker, the Access Provider must advise the end-user that they should discuss any matter concerning the Access Seeker’s goods and/or services with the Access Seeker and must not engage in any form of marketing or discussion of the Access Provider’s goods and/or services;
b) an end-user of the Access Seeker initiates a communication with the Access Provider in relation to goods and/or services supplied to that end-user by the Access Provider, the Access Provider may engage in any form of marketing or discussion of the Access Provider’s goods and/or services; and
c) an end-user of the Access Seeker initiates a communication with the Access Provider in relation to goods and/or services supplied to that end-user by the Access Provider and the Access Seeker, the Access Provider must advise the end-user that they should discuss any matter concerning the Access Seeker’s goods and/or services, with the Access Seeker, but may otherwise engage in any form of marketing or discussion of the Access Provider’s goods and/or services.
9.4 Where a Party communicates with the end-user of the other Party, that first mentioned Party must, where practicable, make and maintain records of that communication with the other Party’s end-user in circumstances where that communication discusses anything concerning the other Party’s goods or services with the end-user. For the avoidance of doubt, the obligation in this paragraph does not include a requirement to provide such records to the other Party (however such a requirement may arise pursuant to any dispute resolution procedure).
9.5 For the purposes of clauses 9.2 to 9.4, a “communication” shall include any form of communication, including without limitation telephone discussions and correspondence.
9.6 Neither Party may represent that:
a) it has any special relationship with or special arrangements with the other Party, including through the use of the other party’s trade marks, service marks, logos or branding unless otherwise agreed;
b) there are no consequences for an end-user when an end-user signs an authority to transfer their accounts or services;
c) a Service has any characteristics or functionality other than as specified in a relevant standard form of agreement or the service description for the Service or in any specifications, collateral or brochures published in relation to the Service; or
d) the other Party participates in the provision of the first mentioned Party’s services, provided that a Party may, upon enquiry by an end-user, inform the end-user of the nature of its relationship with the other Party.
9.7 Where a Party communicates with an end-user of either Party, the first mentioned Party shall ensure that it does not attribute to the other Party:
a) blame for a Fault or other circumstance; or
b) the need for maintenance of a Network; or
c) the suspension of a Service,
provided that this requirement does not require a Party to engage in unethical, misleading or deceptive conduct.
9.8 This Schedule 9 shall be subject to any applicable industry standard made by the ACMA pursuant to Part 6 of the Telecommunications Act 1997 (Cth) and any applicable industry code registered pursuant to Part 6 of the Telecommunications Act 1997 (Cth) in relation to communications or dealings with end-users.
Schedule 10 - Network modernisation and upgrade notice periods
Notice to be provided where Access Provider undertakes a Major Network Modernisation and Upgrade
10.1 Except where the parties agree otherwise, the Access Provider may make a Major Network
Modernisation and Upgrade by:
a) providing the Access Seeker with notices in writing in accordance with clauses 10.2 and 10.4 (General Notification) and clauses 10.3 and 10.5 (Individual Notification); and
b) consulting with the Access Seeker, and negotiating in good faith, to address any reasonable concerns of the Access Seeker, in relation to the Major Network Modernisation and Upgrade.
This clause 10.1 does not apply to an Emergency Network Modernisation and Upgrade.
10.2 The period of notices given under a General Notification provided by the Access Provider to
the Access Seeker:
a) must be an Equivalent Period of Notice; and
b) in any event, must not be less than 30 weeks before the Major Network Modernisation and Upgrade is scheduled to take effect.
10.3 An Individual Notification must be provided by the Access Provider to the Access Seeker as soon as practicable after the General Notification, taking account of all the circumstances of the Major Network Modernisation and Upgrade.
Information to be provided in the notices
10.4 A General Notification must include a general description of the proposed Major Network Modernisation and Upgrade, including the indicative timing for the implementation of the Major Network Modernisation and Upgrade.
10.5 An Individual Notification must include the following information in addition to the information provided in the relevant General Notification:
a) the anticipated commencement date for implementing the Major Network Modernisation and Upgrade
b) the anticipated amount of time it will take to implement the Major Network Modernisation and Upgrade;
c) details of the Access Seeker’s activated Services, or Services in the process of being activated at the date of the notice, that are likely to be affected by the Major Network Modernisation and Upgrade;
d) the likely action required by the Access Seeker as a result of the Major Network Modernisation and Upgrade (including the possible impact of the Major Network Modernisation and Upgrade upon the Access Seeker’s Service); and
e) details of who the Access Seeker may contact to obtain further information about the Major Network Modernisation and Upgrade.
10.6 An Individual Notification only needs to be given where a Service has been activated or the Access Provider is in the process of activating a service as at the date of the Individual Notification, and:
a) the Major Network Modernisation and Upgrade will require the Access Seeker to take particular action in order to continue to use the Service; or
b) the Major Network Modernisation and Upgrade will result in the Service no longer being supplied or the Service being suspended for a period of no less than 20 Business Days.
10.7 Where the Access Provider has provided the Access Seeker with an Individual Notification, the Access Provider must provide the Access Seeker with:
a) updates about the Major Network Modernisation and Upgrade covered by the notice, including:
10.8 The updates referred to in subclause 10.7(a) must be provided regularly (which is not required to be any more frequently than Monthly) after the Individual Notification.
Emergency Network Modernisation and Upgrade
10.9 In the event of an Emergency, the Access Provider may conduct an Emergency Network Modernisation and Upgrade, and
a) must use its best endeavours to provide the Access Seeker with an Individual Notification prior to the Emergency Network Modernisation and Upgrade being implemented; or
b) where it is not practicable for prior notice to be given, the Access Provider must provide the Access Seeker with an Individual Notification as soon as reasonably practicable after the Emergency Network Modernisation and Upgrade is implemented.
Negotiations in good faith
10.10 Except where the parties agree otherwise, the Access Provider must not commence implementation of a Major Network Modernisation and Upgrade unless:
a) it complies with clauses 10.1 to 10.8; and
b) it has consulted with the Access Seeker and has negotiated in good faith, and addressed the reasonable concerns of the Access Seeker in relation to the Major Network Modernisation and Upgrade.
10.11 Notwithstanding any continuing negotiations between the Access Provider and the Access Seeker pursuant to clauses 10.1 and 10.10, if the Access Provider has complied with this Schedule 10, a Major Network Modernisation and Upgrade may proceed within a reasonable time period, taking account of all the circumstances, after an Individual Notification has been issued, unless both parties agree otherwise.
10.12 In attempting to reach a mutually acceptable resolution in relation to a variation under clauses 10.1 and 10.10, the parties must recognise any need that the Access Provider may have to ensure that the specifications for the Services which the Access Providers supplies to more than one of its customers need to be consistent (including, without limitation having regard to the incorporation by the Access Provider of any relevant international standards).
Dispute Resolution
10.13 If a dispute arises in relation to a Major Network Modernisation and Upgrade, then the matter may be resolved in accordance with the dispute resolution procedures set out in Schedule 5 of this IAD.
Miscellaneous
10.14 A requirement for the Access Provider to provide information in written form includes provision of that information in electronic form.
10.15 Any information provided by the Access Provider in electronic form must be in a text-searchable and readable format.
Schedule 11 - Changes to operating manuals
11.1 Operational documents concerning the Service that have been provided to the Access Seeker by the Access Provider, or should be provided because they affect the supply of the Service including the technical and operational quality of the Service, or affect the rights and/or obligations of an Access Seeker, may be amended:
(a) by the Access Provider from time to time to implement or reflect a change to its standard processes, subject to:
(b) otherwise, by agreement of the parties.
11.1A Operational documents referred to in this clause include ordering and provisioning manuals, fault management procedures and operational manuals.
11.1B For the purposes of 11.1(a)(ii), an Access Provider in considering whether it is reasonable for it to implement any comments may consider whether the changes reflect all Access Seeker and the Access Provider’s interests.
11.2 Upon completion of the process set out in clause 11.1, the Access Provider must notify the Access Seeker and make available to the Access Seeker a copy of the new operational document
11.3 Where operational documents concerning the Service are amended in accordance with clause 11.1 and the Access Seeker believes that the amendments:
a) are unreasonable; or
b) deprive the Access Seeker of a fundamental part of the bargain it obtained under this IAD;
the Access Seeker may seek to have the matter resolved in accordance with the dispute resolution procedures set out in Schedule 5 of this IAD.
Schedule 12 – Recourse to regulated terms
12.1 Unless otherwise agreed by the parties, if
(a) an Access Agreement between an Access Provider and an Access Seeker is in force and the Access Agreement relates to access to the same Service which this IAD relates to;
(b) the ACCC makes or varies a Regulatory Determination in relation to the Service and the new Regulatory Determination or the variation deals with a matter other than price; and
(c) a party to the Access Agreement proposes, by written notice, to the other party to vary the Access Agreement to reflect the terms and conditions in the new or varied Regulatory Determination about that matter,
each party must:
(i) consider the proposed changes in good faith; and
(ii) negotiate the proposed changes in good faith for a reasonable period not exceeding 20 Business days unless a longer period of time is agreed in writing, including, if requested by the other party, to meet with the other party to discuss the other party’s proposal.
12.1A If the process under clause 12.1 does not result in a variation to the Access Agreement, this is not a Non-Billing Dispute or Billing Dispute for the purposes of this IAD.
12.2 Unless otherwise agreed by the parties, if
(a) an Access Agreement between an Access Provider and an Access Seeker is in force and the Access Agreement relates to access to the same Service which this IAD relates to; and
(b) the ACCC makes or varies a Regulatory Determination in relation to the Service and the new Regulatory Determination or the variation deals with a matter other than price;
either party may terminate the Access Agreement in respect of that Service (but only in respect of that Service) by providing the other party with a written notice, and termination will take effect on the expiry of the period specified in the notice, which must be no less than 120 Business Days after the day that notice is provided.
[1]The RBS levy is administered by the Australian Communication and Media Authority (ACMA) under the Telecommunications (Regional Broadband Scheme) Charge Act 2020.
