The Commonwealth Coat of Arms is the formal symbol of the Commonwealth of Australia and signifies Commonwealth authority and ownership.

 

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 andinclude 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 (thefirst 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 partys 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 partys 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:

  1. accept the Billing Dispute Notice; or
  2. reject the Billing Dispute Notice if the Access Provider reasonably considers that:
  1. the subject matter of the Billing Dispute Notice is already being dealt with in another dispute;
  2. the Billing Dispute Notice was not submitted in good faith; or
  3. the Billing Dispute Notice is incomplete or contains inaccurate information.

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:

  1. the Access Provider (e.g. withdrawal, adjustment or refund of the disputed Charge); or
  2. the Access Seeker (e.g. payment of the disputed Charge)

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:

  1. cessation of supply of the Service under this IAD, and
  2. payment of all outstanding amounts under this IAD.

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:

  1. obtain from a credit reporting agency, credit provider or other independent party, information contained in a credit report;
  2. disclose to a credit reporting agency, credit provider or other independent party, personal information about each Principal; and
  3. obtain and use a consumer credit report;

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

5.1          If a dispute arises between the parties in connection with or arising from the terms and conditions set out in this IAD for the supply of the Service, the dispute must be managed as follows:

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:

  1. has an understanding of the relevant aspects of the telecommunications industry (or have the capacity to quickly come to such an understanding);
  2. have an appreciation of the competition law implications of his/her decisions; and
  3. not be an officer, director or employee of a telecommunications company or otherwise have a potential for a conflict of interest;

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:

  1. a statement of the disputed matters in the Non-Billing Dispute; and
  2. the procedure to be followed during the mediation, and the mediation must take place within 15 Business Days upon the receipt by the mediator of such agreement;

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:

  1. have an understanding of the relevant aspects of the telecommunications industry (or have the capacity to quickly come to such an understanding);
  2. have an appreciation of the competition law implications of his/her decisions; and
  3. not be an officer, director or employee of a telecommunications company or otherwise have a potential for a conflict of interest;

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.

Schedule 6 Confidentiality

6.1          Subject to clause 6.4 and any applicable statutory duty, each party must keep confidential all Confidential Information of the other party and must not:

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:

  1. for the purposes of undertaking planning, maintenance, provisioning, operations or reconfiguration of its Network;
  2. for the purposes of supplying Services to the Access Seeker;
  3. for the purpose of billing; or
  4. for another purpose agreed to by the Access Seeker; and

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:

  1. the Disclosing Party informs the relevant person or persons to whom disclosure is to be made that the information is the Confidential Information of the other party;
  2. if required by the other party as a condition of giving its consent, the Disclosing Party must provide the other party with a confidentiality undertaking in the form set out in Annexure 1 of this Schedule 6 signed by the person or persons to whom disclosure is to be made; and
  3. if required by the other party as a condition of giving its consent, the Disclosing Party must comply with clause 6.6;

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:

  1. prior to disclosing the Confidential Information of the other party the Disclosing Party informs the relevant person or persons to whom disclosure is to be made that the information is the Confidential Information of the other party; and
  2. unless prohibited by law, the Disclosing Party informs the other Party in writing as soon as reasonably practicable after receiving the request that the Disclosing Party will disclose Confidential Information to the regulatory authority or any other Government body to fulfil that reporting obligation or respond to that request.

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:

  1. prior to disclosing the Confidential Information of the other party the Disclosing Party informs the relevant person or persons to whom disclosure is to be made that the information is the Confidential Information of the other party; and
  2. unless prohibited by law, the Disclosing Party informs the other Party as soon as reasonably practicable after receiving the request that the Disclosing Party will disclose Confidential Information to the regulatory authority or any other Government body to respond to that request.

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:

  1. Schedule 7 due to a payment breach, or 
  2. under clause 7.8

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:

  1. the defaults made by the Access Seeker to the Access Provider; and
  2. the exercise by the Access Provider of any right to suspend or cease supply of the Service under this IAD.


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