Starlin Service Terms

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Hypha – Starlink Terms of Service
Table of Contents
1. This Agreement ……………………………………………………………………………………………………………….2
2. Definitions and Interpretation ………………………………………………………………………………………….2
3. Starlink Terms …………………………………………………………………………………………………………………4
4. Quotation and Orders………………………………………………………………………………………………………4
5. Carriage Services ……………………………………………………………………………………………………………5
6. Equipment ………………………………………………………………………………………………………………………7
7. Installation Services ………………………………………………………………………………………………………..8
8. Equipment Hire ……………………………………………………………………………………………………………….9
11. The Customer’s Obligations …………………………………………………………………………………………. 12
12. Payment Terms and Usage …………………………………………………………………………………………… 13
13. Intellectual Property …………………………………………………………………………………………………….. 15
14. Termination …………………………………………………………………………………………………………………. 15
15. Limitation of Liability……………………………………………………………………………………………………. 16
16. Indemnity …………………………………………………………………………………………………………………….. 17
17. General ……………………………………………………………………………………………………………………….. 18
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1. This Agreement
1.1 Background
(a) Hypha is an authorised reseller of Starlink Services and Equipment.
(b) This Agreement sets out the terms and conditions under which the Customer may use the
Services and Equipment.
(c) Starlink and Hypha require the Customer to adhere to certain terms and conditions in their
use of the Network.
(d) By requesting or receiving Services and/or Equipment, the Customer agrees to be bound by
the terms and conditions within this Agreement and the other documents referred to within.
1.2 Term
(a) This Agreement commences on the earlier of the date the Customer communicates its
acceptance of this Agreement, requests Services and/or Equipment, or receives Services
and/or Equipment.
(b) This Agreement continues indefinitely until terminated pursuant to clause 14.
2. Definitions and Interpretation
2.1 Definitions
Unless the terms and conditions of the Agreement explicitly state otherwise, expressions used in the
Agreement have the following meanings:
(a) Agreement means this document, including any schedules or annexures.
(b) Business Day means any day excluding Saturday, Sunday or public holiday in Brisbane in
the State of Queensland, Australia.
(c) Carriage Services means the carriage services provided by Hypha to the Customer by way
of satellite gateway or other connection facilitation device, with each connection representing
an individual Service.
(d) Claim means a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action,
proceeding, right of action, claim for compensation or reimbursement or liability incurred by or
to be made or recovered by or against a person, however arising and whether: ascertained or
unascertained; immediate, future or contingent; and subject of a dispute, litigation, arbitration,
mediation, conciliation or administrative proceedings.
(e) Collateral, PPSR, Purchase Money Security Interest, Security Agreement, Security
Interest have the meaning given in the PPS Act.
(f) Drop-Outs means any delay, ceasing, or loss of the Carriage Services.
(g) Equipment means any goods supplied to the Customer by way of sale or hire pursuant to the
terms of an Order, including Starlink kits and accessories.
(h) Fee means the amount payable to Hypha for Services and Equipment as described in an
Order.
(i) GST Law means the A New Tax System (Equipment and Services Tax) Act 1999 (Cth).
(j) Hire Period has the meaning given in clause 8.2.
(k) Hypha means Hypha Link Pty Ltd ACN 663 659 069 and/or its Representatives.
(l) Insolvency Event means in respect of a party:
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(i) the appointment of a liquidator, provisional liquidator, administrator, a receiver or
receiver and manager in respect of that party;
(ii) an application to a court or an order for the winding up or bankruptcy of the party;
(iii) enters into a compromise or arrangement with, or assignment for the benefit of, any
of its creditors; or
(iv) the occurrence of anything analogous or having a substantially similar effect to any of
the preceding events.
(m) Installation Guide means the installation guide available in the Starlink Customer Portal.
(n) Intellectual Property Right means all present and future rights conferred by statute, common
law or equity in or in relation to business names, circuit layouts, computer software,
confidential information, copyright, designs, domain names, formulas, inventions, knowhow,
patents, recipes, trade marks, and other results of intellectual activity in the industrial,
commercial, scientific, literary or artistic field, the benefit of any application to register such a
right and the benefit of any renewal or extension of such a right.
(o) Late Fee means the late fee specified in an Order for hire of Equipment, or if none is specified,
then $100 per day, pro rata per hour, that Equipment is not returned to Hypha without consent.
(p) Monthly Usage means the amount of data and/or credit allocated to the Customer for use by
the Customer during each month of the Service Plan.
(q) Network means the satellite-based network owned and operated by Starlink.
(r) Order means a contract between Hypha and the Customer for the sale or hire of Equipment
and/or provision of Services, incorporating a Quote and this Agreement.
(s) Payment Terms means the terms and conditions in relation to the amount payable in respect
of an Order provided by Hypha to the Customer, including all costs, charges and expenses
reasonably and properly incurred by Hypha.
(t) Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
(u) PPS Act means the Personal Property Securities Act 2009 (Cth).
(v) Quote means a statement of work or quotation which sets out the Equipment and/or Services
to be supplied by Hypha to the Customer, prices, delivery dates and Payment Terms.
(w) Related Entity has the meaning given in the Corporations Act 2001 (Cth).
(x) Representative includes an employee, agent, officer, director, auditor, advisor, researcher,
partner, consultant, contractor, sub-contractor or Related Entity of that person or of a related
body corporate of that person.
(y) Schedules means the documents and/or agreements included at the end of this Agreement
and marked as a ‘Schedule’.
(z) Service Plan means the rates, charges, monthly allowance, subscription period and other
certain other terms and conditions of the plan for the Services and Equipment as set out in an
Order.
(aa) Services means any services to be supplied by Hypha to a Customer pursuant to an Order,
including Carriage Services and/or Installation Services.
(bb) Starlink means Space Exploration Technologies Corp, their Representatives or such other
entity notified by Hypha to the Customer.
(cc) Starlink Terms means the Starlink terms of service and policies available at
https://www.starlink.com/legal, or as otherwise notified by Hypha to the Customer.
(dd) Subscription Period means the period in which the Customer is receiving Carriage Services.
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(ee) Term means the period of time calculated in accordance with clause 1.
2.2 Interpretation
In this document unless the context indicates a contrary intention:
(a) headings are for convenience only and do not affect interpretation;
(b) if a party consists of more than one person, this Agreement binds them jointly and each of
them severally;
(c) an obligation, representation or warranty in favour of more than one person is for the benefit
of them separately and jointly; and
(d) “person” includes an individual, the estate of an individual, a corporation, an authority, an
association or a joint venture (whether incorporated or unincorporated), a partnership and a
trust;
(e) a reference to a party includes that party’s executors, administrators, successors and
permitted assigns
(f) a reference to a document (including this document) is to that document as varied, novated,
ratified or replaced from time to time;
(g) a reference to a statute includes its delegated legislation and a reference to a statute or
delegated legislation or a provision of either includes consolidations, amendments, reenactments
and replacements;
(h) a word importing the singular includes the plural (and vice versa);
(i) a word indicating a gender includes every other gender and no gender;
(j) a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a
party, clause, schedule, exhibit, attachment or annexure to or of this document, and a
reference to this document includes all schedules, exhibits, attachments and annexures to it;
(k) if a word or phrase is given a defined meaning, any other part of speech or grammatical form
of that word or phrase has a corresponding meaning;
(l) no doctrine or rule of construction of documents will apply to the disadvantage of a party, on
the basis that the party put forward this Deed or any relevant part of it;
(m) if an act must be done on a specified day which is not a Business Day, it must be done instead
on the next Business Day; and
(n) “includes” in any form is not a word of limitation.
3. Starlink Terms
(a) The Customer acknowledges and agrees that it has read the Starlink Terms, and that the
Starlink Terms will also apply where relevant to their use of the Services and Equipment.
(b) If there is any inconsistency between the Starlink Terms and this Agreement, the Starlink
Terms shall prevail to the extent of the inconsistency.
(c) Notwithstanding any other term of this Agreement, the obligations of Hypha to the Customer
shall not exceed the obligations of Starlink under the Starlink Terms.
4. Quotation and Orders
4.1 Request
Hypha will, at its sole discretion, issue a Quote to the Customer following a request by the Customer
for particular Equipment and/or Services.
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4.2 Quotes
(a) A Quote or other indication of a price issued by Hypha is an invitation to treat, not a contractual
offer.
(b) A Quote is valid for the period stated in the Quote, or if no such period is specified, then 30
days from the date of issue.
(c) Hypha reserves the right to cancel or modify a Quote at any time before the Customer has
accepted a Quote.
(d) To the extent permitted by law, Hypha shall not be liable for any errors or omissions in a
Quote.
(e) Quotes may only be accepted by a Customer in their entirety.
4.3 Suitability
Hypha makes no representation or warranty as to the suitability of the Equipment and/or Services for
the Customer’s purposes. It is the Customer’s responsibility to satisfy itself as to such suitability and
the Customer must not accept a Quote unless it is so satisfied.
4.4 Orders
(a) Accepted Quotes will be considered Orders following acceptance by the Customer in writing
and payment of any required deposit.
(b) Each Order incorporates the accepted Quote and this Agreement.
(c) Any additional terms contained in any document (including hand amendments) provided by
the Customer will not form part of the Order unless agreed by Hypha in writing.
(d) All drawings, descriptive matter and/or specification issued by Hypha and any descriptions or
instructions contained on any website, in catalogues or brochures, or any other media are
issued or published for the sole purpose of giving an approximate idea of the Equipment and/or
Services described in them. Unless expressly included in a Quote, they will not form part of
the Order.
(e) An Order may only be cancelled in accordance with the terms of this Agreement.
5. Carriage Services
5.1 Provision of Carriage Services
This clause 5 applies if Hypha has agreed to provide the Customer with Carriage Services under the
terms of an Order.
5.2 Hypha’s Obligations
Subject to the Customer complying with its obligations set out in this Agreement, for the duration of
the Subscription Period, Hypha will endeavour to:
(a) provide and maintain the Carriage Services to the extent that it has control over the Carriage
Services and Network; and
(b) notify the Customer prior to any anticipated Drop-Outs.
5.3 Subscription Period
The Customer has requested and Hypha has agreed to provide the Carriage Services for the
Subscription Period specified in the Order. Unless the Customer requests in writing to cancel a
Carriage Service, that Carriage Service will automatically renew at the end of the Subscription Period
for an additional Subscription Period.
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5.4 The Network
(a) The Customer acknowledges:
(i) that the Network is operated and owned by Starlink who is not controlled by Hypha;
(ii) from time to time, Starlink may vary, modify or change the Network at its discretion;
(iii) unless otherwise agreed upon in writing, Hypha is not responsible for any variations,
modifications or changes to the Network by Starlink;
(iv) In the event that Starlink varies, modifies, or changes the Network, Hypha is under no
obligation to contact the Customer, although if Hypha reasonably suspects it may
affect the Carriage Services of the Customer, it will use best efforts to do so; and
(v) Hypha may vary the Carriage Services, without liability, if reasonably required for
technical or operational reasons as long as the Service still complies with the
Agreement.
(b) Hypha has permission from Starlink to integrate the Services into the Network. However:
(i) Hypha does not hold any licenses for operating a carriage service under the
Telecommunications Act 1997 (Cth) (Telecommunications Act), or any other similar
or related legislation;
(ii) Hypha will not be responsible or liable for Starlink’s compliance with any warrants,
notices or other surveillance instruments under Australian legislation, including the
Telecommunications Act, and the Customer releases and will hold Hypha entirely
harmless for any Claim involving same; and
(iii) Hypha takes no responsibility for Starlink’s compliance with any laws, regulations or
conditions in a jurisdiction in which the Carriage Services are provided to the
Customer.
5.5 No Guarantee or Warranty
(a) The Customer acknowledges:
(i) the provision of a Carriage Service is subject to bandwidth, network availability and
capacity; and
(ii) that given the nature of satellite systems, the Network may experience some
irregularities that cause temporary and/or unexpected interruptions.
(b) The Customer further acknowledges and agrees that due to the irregularities referred to in
clause 5.5(a)(ii), Hypha does not guarantee or warrant that:
(i) a Carriage Service will be uninterrupted; or
(ii) there will be no congestion on the Network;
and Hypha therefore does not guarantee or warrant the level or quality of a Carriage Service.
(c) The Customer agrees and acknowledges that Hypha does not exercise any control over,
authorise or make any warranty regarding:
(i) the availability, response times or other characteristics of a Carriage Service, except
as set out in this Agreement or any related agreements;
(ii) the accuracy or completeness of any content which the Customer or its users may
use, obtain, access or transmit using the Carriage Services, including any data which
Hypha or a Starlink may cache as part of the Carriage Services;
(iii) the consequences of the Customer or its users using, accessing or transmitting any
content using a Carriage Service; or
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(iv) any charges which a third party may impose on you in connection with the Customer’s
use of a Carriage Service.
5.6 Privacy
(a) The Customer agrees and acknowledges, in order to be able to provide the Carriage Service,
Hypha may need to provide the Customer’s Personal Information or other details, to its
suppliers or other third parties which may be located outside Australia (such as Starlink).
(b) Customer consents to Hypha providing this information to those third parties (and those third
parties using that information for the purposes of the Carriage Services).
(c) All Personal Information provided to Hypha, unless agreed elsewhere in writing, shall be
handled in accordance with Hypha’s Privacy Policy.
5.7 Connecting Carriage Services
(a) Some Carriage Services require a request for activation by means of a written request of
activation form must be submitted prior to any activation being completed.
(b) Hypha excludes any and all liability to the Customer for, or in connection with, interruptions to
the Services in the event that the Customer has failed to activate a Carriage Service.
(c) Carriage Services may not be available in all locations and are contingent upon Network
availability.
6. Equipment
6.1 Provision of Equipment
This clause 6 applies if Hypha has agreed to supply the Customer with Equipment by way of sale or
hire under the terms of an Order.
6.2 Installation of Equipment
(a) Unless Hypha has agreed to provide Installation Services, the Customer is solely responsible
for installation of the Equipment in a location that has a clear field of view, in accordance with
the Installation Guide. The Customer must not install the Equipment under a radome, as this
may adversely affect terminal performance. The Customer should maintain a minimum
separation distance of 4 metres between the Equipment and other co-located antennas. The
Customer must install the Equipment securely so that it will not become dislodged due to
weather or other external factors.
(b) It is the Customer’s sole responsibility to ensure compliance with all applicable building codes,
zoning, ordinances, business district rules, conditions, restrictions, lease obligations and
landlord/owner approvals and requirements that are applicable to the installation of the
Equipment. The Customer is solely responsible for paying any associated fees or other
charges, and to obtain any permits and other authorisations necessary for the installation of
the Equipment.
(c) Should use of the Equipment require any construction or alteration to property, Hypha is not
obliged to reimburse any expenses or restore property to the same physical state as prior to
delivery of the Equipment. If the Customer requires a permanent roof mount installation, they
acknowledge the potential risks associated with this type of installation, including, without
limitation, with respect to any warranty that applies to penetration of their vehicle/vessel roof,
building roof or roof membrane.
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6.3 Installation of Equipment on Moving Vehicles
Unless Hypha has agreed to provide Installation Services, the Customer agrees to take proper
precautions when installing Equipment to be used on a moving vehicle or vessel. The Customer must
ensure that the antenna mount is installed on a structurally sound, horizontal surface. The Customer
acknowledges that Equipment falling into the road or off a vessel due to poor installation practices can
cause serious accidents resulting in bodily injury. The Customer must not mount Equipment on any
vehicle or vessel if it is not stable, or if it cannot be properly secured as described in the Installation
Guide and used with the proper mount.
6.4 No Unauthorised Modification of Equipment
The Customer must not modify any Equipment in a manner that contradicts the Installation Guide or
would otherwise alter the transmission characteristics of the equipment, including installation under a
radome. The Customer acknowledges that the equipment warranty may be voided if it is determined
that installation of modification of Equipment has resulted in a material degradation of the Carriage
Services or Equipment.
6.5 Delivery of Equipment
(a) The Equipment will be deemed to be delivered it arrives at the address nominated by the
Customer. The Customer is not entitled to reject delivery of any Equipment on the basis of
any minor deviation from description or quantity.
(b) Hypha reserves the right to deliver Equipment in multiple instalments.
(c) Risk in Equipment passes to the Customer at the time the Equipment is shipped or collected.
6.6 Delays in Delivery
(a) Any delivery times made known to the Customer are estimates only.
(b) Hypha will notify the Customer at the earliest practicable date if it believes that the delivery of
Equipment will be delayed.
(c) Hypha will advise the Customer of the new delivery date.
6.7 The Customer’s delay or prevention of delivery
If Hypha is unable to deliver Equipment to the Customer because of an act or omission of the Customer
including a failure of the Customer to fulfil its obligations under this Agreement:
(a) the Equipment will be deemed to have been delivered; and
(b) Hypha may store the Equipment until actual delivery is possible and the Customer will be
liable for any Claim related to Hypha’s storage of the Equipment, including but not limited to
the costs of redelivery, storage fees incurred and insurance.
6.8 Collection
Where Equipment is collected by the Customer by collection from an address notified by Hypha,
delivery of the Equipment will be deemed to have taken place at the time of that collection.
7. Installation Services
7.1 Provision of Installation Services
This clause 7 applies if Hypha has agreed to supply Installation Services to the Customer under the
terms of an Order.
7.2 Installation Requirements
Where Hypha is required to perform Installation Services at a location nominated by the Customer
(Site), the Customer must:
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(a) provide Hypha and its Representatives with access to the Site, equipment and other facilities
and services as are reasonably required to perform the Services;
(b) notify Hypha and its Representatives of any Site-specific requirements in advance;
(c) provide Hypha and its Representations with instructions and information necessary to
complete the Installation Services;
(d) ensure that the Site is safe and secure for Hypha and its Representatives to undertake the
Installation Services; and
(e) ensure that it and all of its Representatives comply with all laws with respect to the Site,
including occupational health and safety laws.
8. Equipment Hire
8.1 Provision of Equipment for Hire
This clause 8 applies if Hypha has agreed to hire Equipment to the Customer under the terms of an
Order.
8.2 Hire Period
Unless otherwise specified in an Order:
(a) the Hire Period commences when the Equipment is delivered to the Customer pursuant to
clause 6; and
(b) the Hire Period ends when the Equipment is returned to the location specified by Hypha within
Hypha’s regular business hours, in the condition required by this Agreement, unless this
Agreement is terminated earlier.
8.3 Agreement for Hire
(a) Hypha agrees to hire Equipment to the Customer for the Hire Period.
(b) The Customer acknowledges that title to the Equipment remains with Hypha, Starlink or their
Representatives at all times. The Customer must not agree, attempt, offer or purport to sell,
assign, sub-let, lend, pledge, mortgage, let on hire or otherwise part with possession or
otherwise deal with the Equipment except as set out in this Agreement.
8.4 Use of Equipment
(a) The Customer must ensure that the Equipment is only used:
(i) for the purpose and within the capacity for which it was designed;
(ii) (where applicable) by suitably qualified and licenced persons;
(iii) with due care and skill;
(iv) for a legal purpose and in a legal manner;
(b) The Customer must ensure that while the Equipment is not in use, it is stored in a safe and
secure location.
(c) The Customer must immediately notify Hypha if the Equipment is damaged, lost or destroyed.
The Customer must reimburse Hypha for any additional costs incurred by Hypha due to the
damage or loss, including any insurance excess and any costs associated with retrieving the
Equipment.
8.5 Hire Fees
(a) The Customer must pay the Fee for the hire of the Equipment for the Hire Period.
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(b) Where the Customer has, in breach of its obligations, failed to return the Equipment by the
agreed time, the Customer must pay the Fee for this additional period as well as a Late Fee
immediately upon demand. The Customer agrees that the Late Fee is a reasonable preestimate
of the damages suffered by Hypha due to the failure to the return the Equipment.
(c) Where the Equipment is damaged during the Hire Period, the Customer must also pay the
Fee for the period from the end of the Hire Period until the date the Equipment is repaired and
available for hire by Hypha.
(d) Where the Equipment is lost, destroyed, or becomes incapable of repair during the Hire
Period, the Customer must also pay the Fee for the period from the end of the Hire Period
until the date of receipt by Hypha of a replacement for that Equipment (or if Hypha elects not
to replace the Equipment, the date that it could have received a replacement).
8.6 Maintenance & Care
(a) The Customer is responsible for maintenance and care of the Equipment in accordance with
any directions or manuals provided by Hypha or Starlink.
(b) The Customer must return the Equipment in the condition supplied, in compliance with this
Agreement.
8.7 Customer must not repair or modify Equipment
The Customer must not repair, modify, alter, or tamper with the Equipment.
8.8 Inspection
If requested by Hypha, the Customer must grant Hypha’s Representatives access to the location
where Equipment is used or stored for the purposes of inspecting the Equipment.
9. Retention of Title
9.1 Retention
(a) This clause 9 applies where the Customer acquires Equipment from Hypha or there is
otherwise Equipment at a location owned or controlled by the Customer and the Customer
has not purchased the Equipment and paid for it in full.
(b) All Equipment sold or supplied by Hypha to the Customer shall remain Hypha’s sole and
absolute property as legal and beneficial owner until such time as the Customer has paid
Hypha:
(i) the agreed purchase price for such Equipment; and
(ii) all other sums due from the Customer to Hypha whether arising under any agreement
between the parties or otherwise.
9.2 Customer’s Obligations
Until such time as title in the Equipment passes to the Customer in accordance with clause 9.1(b)
above:
(a) the Customer must hold the Equipment on a fiduciary basis as bailee for Hypha;
(b) the Customer must not, without Hypha’s prior written consent:
(i) assign, sub-let, charge, mortgage, pledge or create any form of Security Interest over,
or otherwise deal with the Equipment in any way;
(ii) alter, modify, tamper with, damage or repair the Equipment; or
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(iii) deface, remove, vary or erase any identifying marks, plate, number, notices or safety
information, on the Equipment;
(c) the Customer must keep the Equipment in their own exclusive possession, in a safe and
secure location, separately from the property of any other person and in a manner which
leaves them readily identifiable as Hypha’s Equipment;
(d) the Customer shall be fully responsible for any loss or damage to the Equipment caused
following delivery of the Equipment to the Customer, and the Customer must at their own
expense insure and keep insured such Equipment against all risks to a value equal to the full
price payable by the Customer to Hypha for the Equipment to Hypha’s satisfaction. Whenever
requested by Hypha, the Customer must provide a copy of the policy of insurance for Hypha’s
inspection; and
(e) if the Customer sells the Equipment or uses them to create a product which prevents the
Equipment being identifiable to Hypha, the Customer is taken to hold the proceeds of sale of
the Equipment or any product containing them on trust for Hypha and account to Hypha for
those proceeds.
10. Security Interest
10.1 Security Interest
In order to secure the Customer’s obligations under this Agreement, including any obligation to pay
any amount to Hypha, the Customer:
(a) acknowledges that each Order constitutes a Security Agreement for the purposes of the PPS
Act;
(b) grants to Hypha a Security Interest in respect of all Equipment sold, supplied, hired, leased,
bailed or otherwise provided or made available to the Customer by Hypha and any proceeds
thereof;
(c) consents to Hypha perfecting such Security Interest by registration on the PPSR, including as
a Purchase Money Security Interest;
(d) undertakes to Hypha to do all things reasonably necessary or required by Hypha to assist
Hypha in perfecting the registration of the Security Interest on the PPSR; and
(e) waives, to the extent permitted by the PPS Act, its right to receive any notice of a verification
statement or any other notice Hypha would otherwise be required to give under the PPS Act.
10.2 Dealings with Security Collateral
In relation to any Collateral for which Hypha has a Security Interest under this Agreement, the
Customer agrees and warrants that the Customer that it:
(a) has full right and title in any Collateral;
(b) will disclose any and all encumbrances over Collateral as soon as possible;
(c) will not allow any other encumbrances over the Collateral without Hypha’s express written
permission; and
(d) will not sell, dispose of, grant a license or lease, give control to another, part with possession,
allow the value to be reduced, commingle, or deal with the Collateral in any way which could
be harmful to Hypha’s interests in the Collateral without Hypha’s express written permission.
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10.3 Enforcement
If Chapter 4 of the PPS Act would otherwise apply to the enforcement of this Agreement, the Customer
agrees that the following provisions of the PPS Act will not apply to the enforcement of this Agreement:
section 95 (notice of removal of accession), to the extent that it requires Hypha to give a notice to the
Customer; subsection 121(4) (enforcement of liquid assets — notice to grantor); section 130 (notice
of disposal), to the extent that it requires the Customer to give a notice to the Customer; paragraph
132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if
no disposal); section 135 (notice of retention); section 142 (redemption of collateral); and section 143
(reinstatement of security agreement).
11. The Customer’s Obligations
11.1 General Obligations
(a) When using the Services and Equipment the Customer must:
(i) comply with all laws, regulations, standards and industry codes applicable to the
Customer;
(ii) comply with any rules imposed by any third party whose content or services the
Customer accesses using a Service or whose network the Customer’s data traverses;
(iii) not to use a Service or Equipment for unsolicited or unreasonably frequent or
voluminous communications having regard to the nature and requirements of the
Customer’s business;
(iv) not intentionally disable or circumvent any protection or disabling mechanism related
to the Services or Equipment;
(v) not attempt to reverse engineer or dissemble any Equipment;
(vi) not to install or store any software applications, code or scripts on or through the
Services or Equipment unless it first obtains the written permission of Hypha;
(vii) not infringe any person’s Intellectual Property Rights (such as by using, copying or
distributing data or software without the permission of the owner); and
(viii) not send or receive content using the Services or Equipment other than for their
intended use.
(b) In the event the Customer allows a third party to use the Services or Equipment, the Customer
will be responsible for any breach by a third party of any obligation, undertaking or warranty
provided in this Agreement as if the Customer had committed the breach itself.
11.2 Account
(a) Hypha may:
(i) monitor the Customer’s account to ensure compliance with the Agreement;
(ii) investigate any misuse of the Services or Equipment and may involve law
enforcement agencies in doing so; and
(A) if Hypha finds that the Customer has misused the Services or Equipment,
Hypha may recover from the Customer any costs of investigating that misuse.
(B) if the Customer’s use of the Services or Equipment causes loss to another
party and Hypha is required to pay compensation to that person, Hypha may
require the Customer to reimburse Hypha.
(b) The Customer is solely responsible for:
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(i) keeping any usernames and passwords associated with its account for the Services
secure; and
(ii) the use of its account, irrespective of who is using it, even if it is used without the
Customer’s permission.
11.3 Support and Maintenance
Hypha will provide reasonable assistance to the Customer in the form of support and maintenance as
set out in the Service Plan.
11.4 Operational Issues
(a) If the Customer requests Hypha to route traffic to a specific TCP/IP address, then Hypha may,
in its absolute discretion, agree to the Customer’s request. In the case of private IP addresses
(or private networks), Hypha will consider the Customer’s requested address range to
determine whether the request can be accommodated within the Network. Hypha may charge
an additional charge for this consultation.
(b) The Customer must comply with any specific operating conditions as advised by Hypha from
time to time. Compliance with these operating conditions may impact on the Customer’s use
of the Services and Equipment.
(c) The Customer acknowledges that if Hypha relocates or discontinues Services or Equipment
it may not be possible to duplicate all of the previous operating characteristics.
12. Payment Terms and Usage
12.1 Invoices and Time for Payment
(a) Hypha will invoice the Customer and the Customer must pay the amount due on the invoice
in accordance with the Payment Terms as set out in an Order.
(b) Without limitation, the Payment Terms may require the Customer to pay for Equipment and
Services:
(i) in full before delivery;
(ii) in instalments; or
(iii) with an initial deposit and the remainder within a specified time after delivery.
(c) If the Customer is required to make payment in instalments, and such instalments are not
received by Hypha by their due date, Hypha reserves the right to:
(i) halt any further delivery of Equipment or suspend Services until such time as the
outstanding payment is made; and
(ii) claim reimbursement from the Customer for its reasonable costs incurred as a result
of the delay.
(d) If the Customer is required to make payment in full or to pay a deposit, Hypha is under no
obligation to supply any Equipment or Services until the relevant amount is paid to Hypha.
(e) Payment must be made in a manner approved by Hypha. Where payment is made by credit
card, Hypha may charge a credit card surcharge equal to its reasonable additional costs
incurred.
12.2 Usual Payment Terms
For all standard Orders and unless otherwise stipulated in writing, Hypha will invoice the Customer as
follows:
Wireless Innovation – Starlink Terms of Service Page 14 of 19
(a) where Equipment is sold, the purchase price must be paid in full before delivery;
(b) Equipment hire will be invoiced monthly in advance during the Hire Period, and each invoice
must be paid within 30 days of the date of the invoice;
(c) Installation Services will be invoiced after delivery, and must be paid within 30 days of the date
of the invoice; and
(d) Carriage Services will be invoiced monthly in advance during the Subscription Period, and
each invoice must be paid within 30 days of the date of the invoice.
12.3 Failure to Pay
If the Customer fails to pay Hypha any amount under this Agreement by the due date for payment,
Hypha may (without limiting its other rights) immediately do any or all of the following, without any
liability, until all overdue fees are paid:
(a) charge the Customer interest on the overdue amount at a rate of interest per annum equal to
2% above the standard contract default rate published by the Queensland Law Society from
time to time;
(b) withhold further performance of any obligations under any Order or other agreement between
the parties until the overdue amount and interest has been paid in full;
(c) suspend the Customer’s access to Carriage Services;
(d) (where Equipment is hired or sold on credit) enter into any premises owned or occupied by
the Customer, or other premises where Hypha reasonably suspects the Equipment is located,
for the purpose of recovering the Equipment, and the Customer indemnifies Hypha and its
Representatives against any Claim arising from such entry;
(e) terminate this Agreement without any obligation to refund the Customer any money in respect
of the cancellation, even if the contractual term of this Agreement has not expired;
(f) initiate proceedings against the Customer to recover the overdue amount (despite any dispute
resolution clause in this Agreement); and
(g) recover all costs to recover overdue amounts, including but not limited to legal costs and
outlays on a full indemnity basis.
12.4 GST
(a) In this clause 12.4, adjustment note, GST, tax invoice and taxable supply have the
meaning given to them in the GST Law.
(b) For each taxable supply under or in connection with any Order:
(i) Hypha will be entitled to charge the Customer for any GST payable by Hypha in
respect of the taxable supply;
(ii) the Customer must pay Hypha the amount of the GST at the same time as the relevant
charge applicable to the supply becomes payable under the Order; and
(iii) Hypha must provide a valid tax invoice or adjustment note to the Customer in respect
of the taxable supply.
(c) The price of all Equipment and Services is exclusive of GST unless expressly stated to be
inclusive of GST.
Wireless Innovation – Starlink Terms of Service Page 15 of 19
12.5 Duties
The Customer is responsible for paying all government charges, or duties of any kind incurred in or in
connection with Hypha’s provision of credit, or supply of Equipment or Services. Such charges include
without limitation all stamp duties, financial institution duties, and any other charges or duties of a like
kind.
13. Intellectual Property
13.1 Hypha’s Intellectual Property Rights
(a) All title, ownership rights and Intellectual Property Rights, including copyright in relation to the
Services and Equipment is either owned or used under licence by Hypha.
(b) Nothing in this Agreement grants the Customer any rights in or licence to use or reproduce
any Intellectual Property Rights owned by Starlink.
(c) The Customer grants to Hypha a non-exclusive, royalty free, worldwide and perpetual license
for Hypha’s use of any material supplied by the Customer in connection with supplying the
Services and Equipment.
(d) If the Customer becomes aware of any infringement or threatened infringement of any
Intellectual Property Rights of any person, the Customer must give notice to Hypha including
full particulars of the infringement. Hypha may, in its absolute discretion, institute and
prosecute an action against the infringer.
(e) The Customer must execute all documents and do all things reasonably necessary to aid and
co-operate in the prosecution of any actions brought by Hypha under this clause.
13.2 Survival of Obligation
The operation of this clause survives the termination of this Agreement.
14. Termination
14.1 Termination by Customer
(a) The Customer may terminate an individual Carriage Service at any time by giving 30 days’
written notice to Hypha.
(b) The cancellation of a Carriage Service will take effect the day after the last day of the current
Subscription Period unless otherwise agreed in written between the parties.
(c) If the Carriage Service is cancelled before the expiry of the Subscription Period, the Customer
must pay Hypha a cancellation fee equal to 100% of the subscription Fee from the date
cancellation takes effect. This is in addition to any other amounts payable by the Customer for
the Service such as usage charges and excess usage charges incurred up to and including
the date cancellation takes effect.
14.2 Termination by Hypha
(a) Hypha may cancel the Agreement or any Order for convenience by giving 30 days’ written
notice.
(b) Hypha may also cancel the Agreement or any Order immediately by written notice if:
(i) the Customer has committed a breach of this Agreement and it is incapable of being
remedied; or
(ii) the Customer has failed to remedy a breach of this Agreement within 5 Business Days
after receipt of notice of the breach; or
(iii) the Customer has suffered an Insolvency Event.
Wireless Innovation – Starlink Terms of Service Page 16 of 19
(c) In the event that Carriage Services are terminated, the Customer must cease using the
Carriage Services; and
(d) If Hypha has hired Equipment to the Customer and the relevant Order has been terminated,
the Customer must return that Equipment to Hypha, or allow Hypha’s Representatives access
to premises owned or occupied by the Customer to remove the equipment, at the Customer’s
cost.
14.3 Termination not to affect obligation to pay
Termination of this Agreement or any Order shall not affect the Customer’s obligation to pay any
outstanding amounts or other amounts in relation to Equipment or Services.
15. Limitation of Liability
15.1 General limitations and exclusions
(a) The Customer acknowledges and agrees that:
(i) Hypha is not responsible for the conduct or activities of any other user of the Services
or Equipment; and
(ii) the Customer is entering into and acquiring goods or services under this Agreement
for commercial purposes and not for domestic, personal or household use.
(b) If the Customer is a consumer within the meaning of the Consumer Law, there are certain
rights (such as the consumer guarantees implied by the Consumer Law, which cannot by law
be excluded (Non-Excludable Conditions). This clause is subject to those Non-Excludable
Conditions.
(c) Subject to the application of any applicable Non-Excludable Conditions and to the maximum
extent permitted by law, Hypha:
(i) excludes from this Agreement all guarantees, conditions and warranties that might
but for this clause be implied into this Agreement;
(ii) excludes all liability to the Customer for any Claims suffered or incurred directly or
indirectly by the Customer in connection with this Agreement, including using the
Services or interruptions to the Services, whether that liability arises in contract, tort
or under statute; and
(iii) will not, under any circumstances, be liable to the Customer for any loss of revenue,
loss of profits, loss of anticipated savings or business, pure economic loss, loss of
data, loss of value of equipment (other than the cost of repair), loss of opportunity or
expectation loss, and any other form of consequential, special, indirect, punitive or
exemplary loss or damages.
(d) If the liability of Hypha under this Agreement cannot be lawfully excluded, to the maximum
extent permitted by law, Hypha’s liability for breach of any Non-Excludable Conditions is
limited:
(i) in the case of goods, to (at Hypha’s option) the replacement of the goods or the supply
of equivalent goods; the repair of the goods; the payment of the cost of replacing the
goods or of acquiring equivalent goods; or the payment of the cost of having the goods
repaired;
(ii) in the case of services, to (at Hypha’s option) the supplying of the services again; or
the payment of the cost of having the services supplied again to a maximum amount
of $20,000 (for all Claims in aggregate).
Wireless Innovation – Starlink Terms of Service Page 17 of 19
15.2 Specific Limitations and exclusions
Without limiting any other clause of this Agreement, the Customer agrees that neither Hypha, nor
Starlink will be responsible for damage to Equipment after delivery, or for Service malfunctions
resulting from:
(a) manual re-pointing of the antenna;
(b) repair, modification, or disassembly of the Equipment by anyone other than Starlink, Hypha
or their authorised Representatives;
(c) failure to follow the Installation Guide or any instructions from Starlink or Hypha, including by
obstructing the Equipment’s field of view;
(d) fire, flood, wind, lightning, earthquake, weather, or other acts of nature or God;
(e) spills of food or liquids on the Equipment;
(f) planned or emergency maintenance on the Network;
(g) problems with the Customer’s electrical power or network equipment;
(h) misuse, abuse, accident, vandalism, alteration, or neglect;
(i) normal wear and tear or deterioration, or superficial defects, dents, or marks that do not impact
performance of the Equipment;
(j) use in combination with devices or software not provided or approved by Hypha or Starlink;
(k) inability to obtain or maintain necessary permissions, authorisations, or permits; or
(l) any events not reasonably within Hypha’s or Starlink’s control.
15.3 Assumption of Risk
The Customer agrees that use of the Services and Equipment, and use by anyone using the
Customer’s account, is at the Customer’s sole risk. Services are not suited for or intended as a
mission-critical or safety-of-life service.
16. Indemnity
16.1 Scope of Indemnity
The Customer indemnifies and will keep Hypha and its Representatives indemnified against all liability
arising from Claims in connection with:
(a) libel, slander, defamation, product disparagement or indecent, false, misleading or deceptive
conduct;
(b) any use or misuse of the Services or Equipment by the Customer or its Representatives;
(c) any breach of the Customer’s obligations under this Agreement or the Starlink Terms;
(d) infringement of Intellectual Property Rights;
(e) any incorrect, fraudulent or false information provided by the Customer or its Representatives;
and
(f) any of the circumstances referred to in clause 15.2.
16.2 Conditions of indemnity
(a) Hypha may make a claim under indemnities in this Agreement in relation to a cost before
having incurred the cost, or before making a payment in relation to the cost.
Wireless Innovation – Starlink Terms of Service Page 18 of 19
(b) The indemnities in this Agreement shall be in addition to any damages for breach of contract
to which Hypha may be entitled. Nothing in the indemnities in this Agreement will be construed
so as to prevent Hypha from claiming damages in relation to the Customer’s breach of any
term of this Agreement.
(c) Each indemnity in this Agreement is a continuing obligation, separate and independent from
the other obligations of the parties and survives termination of this Agreement for whatever
reason.
17. General
17.1 Communications
(a) All notices and communications must be in writing, and may be sent by mail, hand delivery or
by email. However, if communications are sent by means other than email, a copy must also
be sent by email.
(b) Notices must be sent to the addresses of the parties specified in the Quote, or as otherwise
notified to the other party in writing.
(c) A communication by email will be taken to have been received by the addressee at the earlier
of the time stated in a read receipt sent by the recipient’s computer or when the message has
been delivered to the email address of the addressee.
(d) A communication that is received after 5pm on a Business Day, or on a non-Business Day,
shall be deemed to be received at 9am on the next Business Day.
17.2 Electronic communications and counterparts
For the purposes of the Electronic Transactions Act 1999 (Cth) and the Electronic Transactions
(Queensland) Act 2001 (Qld), the parties agree to send, receive, and execute notices and documents
electronically, and agree that any document signed electronically will be binding with the same effect
as a physical signature. The parties agree that documents may be executed in counterparts, including
counterparts executed or exchanged electronically, and if so, the counterparts taken together
constitute one and the same.
17.3 Inconsistency with other documents
Subject to clause 3, if this Agreement is inconsistent with any other document between the parties,
this Agreement prevails to the extent of the inconsistency.
17.4 Severability
Any clause of this Agreement, which is invalid or unenforceable, is ineffective to the extent of the
invalidity or unenforceability without affecting the remaining clauses of this Agreement.
17.5 Unforeseen Events
A party is not responsible for any loss arising out of any occurrences or condition beyond its control,
including but not limited to acts of war (whether declared or not) or terrorism, the mobilisation of armed
forces, civil commotion or riot, natural disaster, industrial action or labour disturbance, pandemic or
epidemic, currency restriction, embargo, action or inaction by a government, a failure of a supplier,
public utility or common carrier or computer disruption due to the effects of a computer virus, trojan,
malware or other malicious code.
17.6 Assignment
(a) The Customer may only assign, encumber, declare a trust over or otherwise create an interest
in its rights under this document with the consent of Hypha.
(b) Hypha may assign, encumber, declare a trust over or otherwise create an interest in its rights
under this document without the consent of the Customer, and may disclose to any potential
holder of the right or interest any information relating to this document or any party to it.
Wireless Innovation – Starlink Terms of Service Page 19 of 19
17.7 Rebates
The Customer acknowledges that Hypha may offer a rebate or referral fee to our referral partners in
connection with the Services and/or Equipment supplied under this Agreement.
17.8 Amendment
Hypha may amend this Agreement by providing the Customer 30 days’ written notice.
17.9 No waiver except in writing
No part of this Agreement will be deemed waived, and no breach excused unless such waiver or
consent is provided expressly and in writing.
17.10 Giving effect to this document
Each party must do anything (including execute any document) and must ensure that its employees
and agents do anything (including execute any document), that the other party may reasonably require
to give full effect to this document.
17.11 Reliance
Neither party has entered into any contract under this Agreement in reliance on or as a result of any
representation, promise, statement, conduct or inducement by the other otherwise than as set out in
this Agreement.
17.12 Governing law
The laws of Queensland, Australia govern this Agreement. The parties submit to the non-exclusive
jurisdiction of courts exercising jurisdiction there.