Satellite Trial Product Terms

Transcription

1 [Customer] This document is a Standard Form of Access Agreement for the purposes of Part XIC of the Competition and Consumer Act 2010.

2 NBN Co Limited Satellite Trial Product Terms NBN Co Networks: Satellite Version Description Effective Date 1.0 Issued on 23 October 2015 Date of execution Copyright This document is subject to copyright and must not be used except as permitted below or under the Copyright Act 1968 (Cth). You must not reproduce or publish this document in whole or in part for commercial gain without the prior written consent of NBN Co. You may reproduce and publish this document in whole or in part for educational or non-commercial purposes as approved by NBN Co in writing. Copyright 2015 NBN Co Limited. All rights reserved. Not for general distribution. Disclaimer This document is provided for information purposes only. The recipient must not use this document other than with the consent of NBN Co and must make their own inquiries as to the currency, accuracy and completeness of this document and the information contained in it. The contents of this document should not be relied upon as representing NBN Co s final position on the subject matter of this document, except where stated otherwise. Any requirements of NBN Co or views expressed by NBN Co in this document may change as a consequence of NBN Co finalising formal technical specifications, or legislative and regulatory developments. Environment NBN Co asks that you consider the environment before printing this document. 2

3 Table of Contents 1 Interpretation 4 2 Pre-condition 6 3 Supply of Satellite Trial Product 7 4 Restrictions on Use 7 5 Performance of Tests 8 6 Co-operation 9 7 Operational changes 10 8 No Service Levels 11 9 Charges Fair Use Start and End Dates Transition to Commercial Supply Termination De-installation 13 Schedule 1 - Statement of Capability 15 3

4 Satellite Trial Product Terms Parties This agreement is entered into between: nbn co limited (ABN ) of Level 11, 100 Arthur Street, North Sydney NSW 2060 (NBN Co); [Insert full legal name of Customer] (ABN [insert ABN]) of [insert registered address]; and [Insert names of any other related bodies corporate of customer also acquiring services as parties in their own right] (Customer). Background A. NBN Co has provided to Customer documents setting out NBN Co s proposed amendments to the wholesale broadband agreement to provide for the supply of the NEBS by means of the NBN Co Satellite Network. B. NBN Co has agreed to supply the Satellite Trial Product to Customer on a non-commercial basis for the purposes of Beam Commissioning, Pre-Release On-boarding, BRT and Customer Field Trials on the terms of this agreement. C. This agreement only applies to the supply of the Satellite Trial Product during the Satellite Trialling Period. 1 Interpretation 1.1 Definitions In this agreement, unless otherwise specified, the definitions in the Dictionary which forms part of the Amended WBA apply, and: Amended WBA means, at any particular point in time: if NBN Co has made available a WBA SFAA which provides for the supply of the NEBS by means of the NBN Co Satellite Network, that agreement; and if NBN Co has not made available a wholesale broadband agreement which provides for the supply of the NEBS by means of the NBN Co Satellite Network, the Draft WBA. Beam Commissioning means each Test and related activity notified by NBN Co under this agreement to verify Satellite NTDs will perform as intended by NBN Co within Beams forming part of the NBN Co Satellite Network. BRT means each Test and related activity notified by NBN Co under this agreement in relation to the business readiness of the parties to supply and acquire the NEBS supplied by means of the NBN Co Satellite Network. Current WBA means the wholesale broadband agreement entered into by NBN Co and Customer prior to the date of this agreement which has not expired or been terminated (but does not include any Satellite Wholesale Broadband Agreement ). Customer Field Trials means each Test and related activity notified by NBN Co under this agreement in relation to the operational readiness of the parties to supply and acquire the NEBS supplied by means of the NBN Co Satellite Network at Premises. 4

5 Draft WBA means, at any particular point in time, the most up-to-date documents provided by NBN Co to Customer setting out NBN Co s proposed amendments to the WBA SFAA for the supply of the NEBS by means of the NBN Co Satellite Network. EOI Process means the process set out in the document entitled Request for Expressions of Interest: Long Term Satellite NBN 1A Customer Testing issued by NBN Co on 1 May 2015 or such other process undertaken by NBN Co to select parties to participate in the activities contemplated by this agreement. Pre-Release On-boarding means the activities notified by NBN Co under this agreement to assist Customer to prepare for interactions with NBN Co in relation to the future supply, installation and configuration of the NEBS supplied by means of the NBN Co Satellite Network under the Amended WBA. Product has the meaning given to that term in the Dictionary which forms part of the terms of the Amended WBA and also includes the Satellite Trial Product. Satellite Trial Product means the NEBS supplied by means of the NBN Co Satellite Network, supplied by NBN Co to Customer at: a Premises; a premises or facility owned, controlled, operated or used by Customer; or the Test Bed Facility, under, and subject to, this agreement. Satellite Trialling Period means the period starting on the date notified by NBN Co under this agreement and ending on the earlier of the Satellite Commercial Launch Date and any alternative date notified by NBN Co under this agreement. Statement of Capability means a statement of capability in the form set out in schedule 1 to this document. Test means each activity conducted as part of a Test Phase under this agreement. Test Bed Facility means any testing facility as may be notified by NBN Co to Customer from time to time. Test Information means, in relation to each Test, any observations, findings or results in connection with the Test. Test Phase means each of Beam Commissioning, Pre-release On-boarding, BRT, and Customer Field Trials, as applicable. Test Plan means, in relation to each Test, the plan provided by NBN Co to Customer including any definition or description document which describes how Customer must perform, or assist NBN Co to perform, the relevant Test and the assistance and direction which NBN Co intends to provide. WBA SFAA means the wholesale broadband agreement made available by NBN Co on its website as a standard form of access agreement for the purposes of Part XIC of the Competition and Consumer Act 2010 (Cth), as may be amended by NBN Co from time to time (but does not include any Satellite Wholesale Broadband Agreement ). 5

6 1.2 Other rules of interpretation A reference to a party "entering into" a WBA SFAA includes entry into a variation of a pre-existing wholesale broadband agreement to adopt the terms of the WBA SFAA. 1.3 General Terms Module H of the Head Terms of the Amended WBA applies to this agreement to the extent that it is relevant to this agreement as if: that module were set out in full in this agreement; and references to the Amended WBA in that module were references to this agreement. 1.4 Precedence Notwithstanding anything else in this document or the terms of the Amended WBA, if there is any inconsistency: between the terms of the Amended WBA and this document (including schedule 1), the terms of this document (including schedule 1) will prevail to the extent of the inconsistency; and between the terms of this document and schedule 1, the terms of this document will prevail to the extent of the inconsistency. 1.5 Prior to execution of the Amended WBA This agreement does not vary or amend, and does not form part of, the Current WBA. Unless and until Customer and NBN Co have separately entered into an access agreement on the terms of the Amended WBA: (iii) (iv) NBN Co will only supply the NEBS supplied by means of the NBN Co Satellite Network to Customer in the form of the Satellite Trial Product; the terms of the Amended WBA will apply in respect of the ordering and supply of the Satellite Trial Product and the performance of this agreement, including each Test, except as varied by this document; a reference in this document to "this agreement" includes the terms contained in the Amended WBA as varied by this document; and the terms of the Amended WBA will be read as if a reference to "this agreement" includes the terms of this document. 1.6 Notices NBN Co may send notices required by this document but not required under the Amended WBA using forms of communication other than those specified in clause H1.1 of the Amended WBA Head Terms. 2 Pre-condition This agreement is of no force and effect unless and until: NBN Co and Customer have executed and exchanged a Current WBA; and NBN Co has notified Customer in writing that it has been selected pursuant to the EOI Process to participate in the activities contemplated by this agreement. 6

7 3 Supply of Satellite Trial Product During the Satellite Trialling Period, Customer may place an order for the Satellite Trial Product using such processes as notified by NBN Co from time to time (which may include processes that allow NBN Co to initiate an order, subject to agreement with Customer). Before NBN Co first supplies the Satellite Trial Product to Customer for the purposes of Pre- Release On-boarding, Customer must complete, sign and return the Statement of Capability to NBN Co which is acceptable to NBN Co (acting reasonably). During the Satellite Trialling Period, Customer need not comply with its completed Statement of Capability in respect of the Satellite Trial Product except to the extent that: (iii) the configuration or use of the Satellite Trial Product would or does contribute to an Adverse Network Impact; NBN Co considers that the configuration or use of the Satellite Trial Product may contribute to an Adverse Network Impact; or NBN Co notifies Customer that Customer must comply with some or all of its completed Statement of Capability with regard to some or all supplies of the Satellite Trial Product. (d) (e) (f) (g) (h) NBN Co may require Customer to complete, sign and return an updated or amended Statement of Capability which is acceptable to NBN Co (acting reasonably). NBN Co will give Customer as much notice as is reasonably practicable in the circumstances of any updates or amendments required to the Statement of Capability. NBN Co will determine and notify Customer of the locations at which NBN Co will supply the Satellite Trial Product from time to time. Customer must only use the Test Bed Facility in accordance with the usage timetable and conditions that may reasonably be determined by NBN Co and notified to Customer from time to time. NBN Co may suspend Customer s use of the Test Bed Facility if NBN Co reasonably considers that Customer has breached any condition regarding Customer s use of the Test Bed Facility. Prior to suspending Customer s use of the Test Bed Facility, NBN Co will, where reasonably practicable, discuss the circumstances of Customer s breach with Customer. 4 Restrictions on Use 4.1 Acknowledgement The Satellite Trial Product is provided in a limited test environment and on a trial only basis for the purpose of conducting Tests only, and Customer must not use the Satellite Trial Product for any other purpose. The Satellite Trial Product is only available in certain areas and is subject to capacity limitations, including as to the number of Satellite Trial Products that may be concurrently supplied by NBN Co at any particular time. 4.2 Interruptions NBN Co does not warrant that the Satellite Trial Product will be continuous or fault free in operation. 7

8 NBN Co may interrupt, suspend or cancel the supply or performance of the Satellite Trial Product for any reason, by giving Customer as much notice as reasonably practicable in the circumstances. To the full extent permitted by law, NBN Co excludes all liability to Customer in respect of any Loss in connection with either or both of: a failure to offer or supply, or any interruption, suspension or cancellation of the supply or performance of the Satellite Trial Product; and the performance or non-performance of this agreement, including in connection with any Tests. 4.3 Not Suitable for Commercial Use Customer must not use the Satellite Trial Product as an input into the supply of a Customer Product (and Customer must use its reasonable endeavours to ensure that no Downstream Customer uses it as an input into the supply of a Downstream Product) that is: supplied on a commercial basis; or used by a medical or security alarm (or similar devices or purposes). 5 Performance of Tests Subject to the rights and obligations of each party under this agreement, the parties will cooperate with each other and work collaboratively in connection with: the performance of each Test; and the supply and acquisition of Satellite Trial Products under this agreement, to enable: (iii) (iv) NBN Co to develop, enhance and configure its equipment, network, systems, facilities, products, services and processes through the learnings gained by NBN Co and Customer from the Tests; and Customer to perform Pre-Release On-boarding. Customer must participate in Tests in accordance with: (iii) (iv) each applicable pre-condition to the performance of a Test Plan which is set out in a Test Plan or otherwise notified by NBN Co; each applicable Test Plan; each operational procedure agreed between the parties from time to time; and NBN Co's reasonable instructions, policies and procedures regarding each Test as notified by NBN Co to Customer from time to time. (d) Customer must provide any requested Test Information to NBN Co within any reasonable timeframe specified by NBN Co. NBN Co owns all Intellectual Property Rights in the Satellite Trial Product, the NEBS supplied by means of the NBN Co Satellite Network, the Amended WBA and any materials or works supplied by NBN Co in connection with any Test, including any changes to the Satellite Trial Product, the NEBS supplied by means of the NBN Co Satellite Network or the Amended WBA. 8

9 6 Co-operation 6.1 Coordinated communications plan Customer must work collaboratively with NBN Co in the development and delivery of a coordinated communications plan to End Users for the purposes of informing End Users about: (d) Installations; the Satellite Trial Product, each Customer Product and each Downstream Product; the Satellite Trialling Period, the Satellite Commercial Launch Date, any transition to the supply of the NEBS by means of the NBN Co Satellite Network; and the purpose, scope, process and timing of each Test which may affect End Users. 6.2 Customer management of End Users Customer must, except as expressly agreed with NBN Co, manage all aspects of its relationship with End Users, including: arranging for the participation of End Users in the Tests and termination of such Tests in a manner consistent with this agreement; managing all interactions with End Users, including with regard to Installations and Appointments, Trouble Ticket Appointments, handling service, technical and maintenance enquiries and requests, disputes, provision of information and communications as reasonably directed by NBN Co (including in connection with each matter set out in clause 6.1); and ensuring that it enters into agreements with End Users which, to the extent permitted by law, allow Customer to comply with this agreement, including: with regard to the basis on which any Customer Product is supplied and its limitations; and drawing to the End User's specific attention the nature of the testing environment and that the supply of products or services are for testing purposes and will not necessarily perform in accordance with their descriptions, be fit for the purposes for which such goods or services are commonly supplied; be free from defects; durable; fit for a particular purpose or supplied within a particular time; or at all. 6.3 NBN Co contact with End Users NBN Co or NBN Co s Personnel may directly contact End Users to manage details of Appointments and Trouble Ticket Appointments, including changes to, or cancellations of, such Appointments and Trouble Ticket Appointments. 6.4 Customer management of Downstream Customers To the extent that Customer uses the Satellite Trial Product as an input into a Customer Product which is supplied to a Downstream Customer which is not an End User: Customer must notify NBN Co of the details of the Downstream Customer before supplying the Customer Product to the Downstream Customer; clause 6.2 does not apply to Customer; and 9

10 Customer must use reasonable endeavours to ensure that the Downstream Customer complies with the obligations in clause 6.2 as if references to: Customer were references to Downstream Customer ; and Customer Product were references to Downstream Product. 6.5 Connections Customer will provide reasonable assistance to NBN Co to establish Satellite Trial Product connectivity. Without limiting the generality of the foregoing, Customer will comply with all instructions, policies, procedures and specifications in respect of installation and activation processes notified by NBN Co to Customer from time to time in connection with the Satellite Trial Product. 6.6 Errors, defects and deficiencies Customer will notify NBN Co of any matter which Customer considers to be a material error, defect or deficiency in the Satellite Trial Product, the NBN Co Satellite Network or NBN Co's relevant processes or procedures. 6.7 Review and evaluation At regular intervals during the Satellite Trialling Period and after completion of Tests, the parties will, at NBN Co s request, meet to review and evaluate the performance of the Satellite Trial Product, the NBN Co Satellite Network and NBN Co s relevant processes and procedures. At regular intervals during the Satellite Trialling Period and after completion of Tests, Customer will, at NBN Co s request, use reasonable endeavours to obtain and assist NBN Co to directly obtain additional feedback from End Users regarding the performance of the Satellite Trial Product, the NBN Co Satellite Network and NBN Co s relevant processes and procedures. 6.8 Minimising inconvenience to End Users The parties will use their reasonable endeavours to work with each other for the purpose of minimising any inconvenience to any End User affected by termination of this agreement or the disconnection, cancellation or discontinuance of supply of the Satellite Trial Product. 7 Operational changes The parties acknowledge and agree that: the NBN Co Operations Manual has been developed on the basis that certain NBN Co systems, processes and procedures, network releases and integrated releases will be available on and from the Satellite Commercial Launch Date; and NBN Co may modify the processes that apply in connection with the Satellite Trial Product during the Satellite Trialling Period. Where practicable, NBN Co will use reasonable endeavours to discuss such modifications with Customer before notifying Customer of such modifications. 10

11 8 No Service Levels During the Satellite Trialling Period: the Service Levels in respect of the NEBS supplied by means of the NBN Co Satellite Network will only apply in respect of the Satellite Trial Product as if those Service Levels were Operational Targets and accordingly will be non-binding and aspirational; no Performance Objectives will apply in respect of the Satellite Trial Product; and no Commercial Rebates or CSG Compensation are payable in respect of the Satellite Trial Product. 9 Charges During the Satellite Trialling Period, NBN Co waives all Charges set out in the Price List in respect of the Satellite Trial Product. 10 Fair Use During the Satellite Trialling Period, the provisions of the Fair Use Policy will not apply in respect of the Satellite Trial Product except to the extent that: the configuration or use of the Satellite Trial Product would or does contribute to an Adverse Network Impact; NBN Co considers that the configuration or use of the Satellite Trial Product may contribute to an Adverse Network Impact; or NBN Co notifies Customer that some or all provisions of the Fair Use Policy will apply to some or all supplies of the Satellite Trial Product. 11 Start and End Dates NBN Co will give Customers as much notice as is reasonably practicable in the circumstances of: the dates on which the Satellite Trialling Period and each Test activity, Test and Test Phase will start and end; and any modifications to the dates notified for the start or end of the Satellite Trialling Period or of any Test activity, Test or Test Phase. Customer acknowledges and agrees that the Satellite Trial Product is provided for the purpose of conducting Tests only and is subject to capacity limitations, and NBN Co may, by notice to Customer, disconnect, cancel or discontinue the supply of Satellite Trial Products that have been supplied to facilitate specific Tests at the end of those Tests. 12 Transition to Commercial Supply 12.1 Satellite Commercial Launch Date WBA executed This clause 12.1 applies if NBN Co elects to continue to supply any Satellite Trial Products on or after the Satellite Commercial Launch Date and Customer and NBN Co have entered into an Amended WBA on or before the Satellite Commercial Launch Date. 11

12 With effect on and from the Satellite Commercial Launch Date: (iii) NBN Co will continue to supply, and Customer will continue to acquire, the Satellite Trial Product subject to and in accordance with the terms of the Amended WBA entered into by the parties; the terms of this agreement (including any modifications to processes notified pursuant to clause 7) will no longer apply in respect of the ongoing ordering and supply of the Satellite Trial Product; and each Satellite Trial Product being supplied will cease to be the Satellite Trial Product and will become the NEBS supplied by means of the NBN Co Satellite Network pursuant to the Amended WBA entered into by the parties. (d) Every order in respect of the Satellite Trial Product that has not been completed or rejected before the Satellite Commercial Launch Date will be deemed to be an order in respect of the NEBS supplied by means of the NBN Co Satellite Network pursuant to the Amended WBA entered into by the parties. With effect on and from the Satellite Commercial Launch Date: (iii) (iv) (v) all Charges will apply; Customer must comply with its completed Statement of Capability; the Service Levels Schedule will apply; the Fair Use Policy will apply; and clauses 4 and 5 of this agreement will not apply, to the ongoing supply of each NEBS supplied by means of the NBN Co Satellite Network pursuant to the Amended WBA entered into by the parties. (e) Customer acknowledges and agrees that there may be: interruptions to, or suspensions of, the supply or performance of any Satellite Trial Products which become the NEBS supplied by means of the NBN Co Satellite Network; and delays to the processing of any orders in respect of any Satellite Trial Products which become orders in respect of the NEBS supplied by means of the NBN Co Satellite Network, in connection with NBN Co updating its systems and data in respect of the continued supply of the NEBS supplied by means of the NBN Co Satellite Network. (f) (g) (h) Customer acknowledges and agrees that NBN Co may, by notice to Customer, require that Customer conduct On-boarding under the Amended WBA which is additional to any Pre- Release On-Boarding. Notwithstanding this clause 12.1, any obligation to pay a Charge in the Price List which arises during the Satellite Trialling Period, and which is waived in respect of the Satellite Trial Product pursuant to clause 9, will not be retrospectively charged. If, on or after the Satellite Commercial Launch Date, NBN Co: supplies the NEBS by means of the NBN Co Satellite Network under clause 12.1; or processes an order for the NEBS supplied by means of the NBN Co Satellite Network under 12.1, 12

13 in respect of a premises or facility owned, controlled, operated or used by Customer: (iii) (iv) the supplied or ordered Product will be a Satellite Test Service under the terms of the Amended WBA entered into by the parties; and clauses 12.1, 12.1, 12.1(d) to 12.1(d)(iv) and 12.1(f) will apply subject to those terms of the Amended WBA entered into by the parties which are relevant to Satellite Test Services Satellite Commercial Launch Date - no WBA executed This clause 12.2 applies if NBN Co elects to continue to supply any Satellite Trial Products on the Satellite Commercial Launch Date but Customer and NBN Co have not entered into an Amended WBA on or before the Satellite Commercial Launch Date. With effect on and from the Satellite Commercial Launch Date NBN Co may immediately: Suspend, disconnect or discontinue the supply of the Satellite Trial Product (in whole or in part) or services supplied under this agreement; and/or terminate this agreement by notice in writing to Customer Expiry of Satellite Trialling Period prior to Satellite Commercial Launch Date If the Satellite Trialling Period expires prior to the Satellite Commercial Launch Date, then, with effect on and from the date of such expiry, NBN Co may immediately: Suspend, disconnect or discontinue the supply of the Satellite Trial Product (in whole or in part) or services supplied under this agreement; and/or terminate this agreement by notice in writing to Customer. 13 Termination This agreement terminates on the earlier to occur of: a termination event under any provision of this agreement which allows a party to terminate this agreement; the date that is 10 Business Days after one party gives notice to the other party that the first party wishes to terminate this agreement; and 18 months from the date of this agreement. 14 De-installation On or after the disconnection or discontinuance of the supply of any Satellite Trial Product, or termination or expiry of this agreement, NBN Co may de-install and remove any NBN Co Equipment installed in connection with the Satellite Trial Product. Customer must ensure, including in its arrangements with Downstream Customers and End Users, that NBN Co may exercise its rights under clause 14, including after the termination or expiry of any agreement between Customer or Downstream Customer and End Users. 13

14 Execution Executed as an agreement Signed for nbn co limited by its authorised representatives: Signature of authorised representative Signature of authorised representative Name of authorised representative Name of authorised representative Date of signature Date of signature Signed for [insert full name of Customer] by its authorised representatives: Signature of authorised representative Signature of authorised representative Name of authorised representative Name of authorised representative Date of signature Date of signature [Insert execution blocks for any further related bodies corporate also acquiring services as parties in their own right] 14

15 Schedule 1 - Statement of Capability The purpose of the Statement of Capability is for Customer to provide representations and warranties to NBN Co in connection with the measures that Customer has in place to comply with the Fair Use Policy. Please provide the following information about the Customer Equipment that Customer will use to monitor and enforce the Customer s rules and limitations regarding its Customer Products (e.g. for equipment that will be used to count the packets transmitted using the Customer Product and compare them to retail plan limitations imposed by Customer): 1. Brand/model/submodel of equipment used. 2. A diagram showing how this equipment integrates into the Customer Network to measure usage of NEBS supplied by means of the NBN Co Satellite Network. 3. Please confirm that the Customer forecast of the number of services that will be managed by this equipment fits within the capacity limits of the equipment for the reasonable future. 4. Is this equipment dedicated solely to Customer Products for which NEBS supplied by means of the NBN Co Satellite Network is an input, or is it shared with Customer Products to which other Ordered Products are an input (e.g. NEBS supplied by means of the NBN Co Fibre, Wireless, FTTN or FTTB networks)? 5. Please confirm that support levels for this equipment are adequate for its intended use. Does Customer have an ongoing intent/plan to ensure adequate support? Please provide the following additional information: 6. Does Customer have capabilities to assist NBN Co during worst-case scenarios with reasonable requests? 7. Do the Customer Network, Customer Platform and Customer Equipment have capabilities that support all aspects of the Fair Use Policy such as peak/off-peak and upload/download usage limits per AVC, account for time zones, and apply CVC throughput monitoring and control? If not, please describe alternative approaches Customer will use to ensure it does not breach those aspects of the Fair Use Policy. 8. Please list known limitations of Customer s shaping solution. 9. Does Customer intend to prioritise/deprioritise certain types of traffic relative to others? If so, please provide a brief summary. 10. Please summarise Customer s intentions for shaping End Users (including progressively tightening the shaping and using dynamic usage thresholds). 11. Please confirm Customer s solution will be operational at the commencement of Customer placing orders for the NEBS supplied by means of the NBN Co Satellite Network. 12. Please confirm that Customer will be able to enforce each Fair Use Policy requirement in a manner that complies with the Telecommunications Consumer Protections Code and general consumer protection law, including by providing usage warnings to End Users. 13. Please summarise any other useful information that may demonstrate Customer s ability to monitor usage and enforce usage limits. By completing, signing and returning this Statement of Capability to NBN Co, Customer represents and warrants to NBN Co that it has measures in place to comply with the Fair Use Policy and is aware that failure to comply with the provisions of this Statement of Capability and the Fair Use Policy may 15

16 contribute to an Adverse Network Impact. The Statement of Capability is subject to approval by NBN Co before NBN Co will supply the Satellite Trial Product for the purpose of Pre-Release On-boarding. Signed for [insert full name of Customer] by its authorised representatives: Signature of authorised representative Name of authorised representative Date of signature 16