NBN Co Limited [Customer] FTTN Business Readiness Testing Special Terms This document is a Standard Form of Access Agreement for the purposes of Part XIC of the Competition and Consumer Act 2010.
NBN Co Limited FTTN Business Readiness Testing Special Terms NBN Co Networks: FTTN Version 1.0 Version Description Effective Date 1.0 Published on 29 May 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
FTTN Business Readiness Testing Special Terms Parties This agreement is entered into between: NBN Co Limited (ABN 86 136 533 741) of Level 11, 100 Arthur Street, North Sydney NSW 2060 (NBN Co); and [Insert full legal name of Customer] (ABN [insert ABN]) of [insert registered address]; [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 published or intends to publish the WBA 2.2 SFAA on NBN Co s Website. B. NBN Co has agreed to supply the FTTN BRT Product to Customer on a non-commercial basis for the purposes of business readiness testing on the terms of this agreement and the terms of the WBA 2.2. C. This agreement only applies to the supply of the FTTN BRT Product during the FTTN BRT Testing Period. 1 Interpretation 1.1 Definitions In this agreement, unless otherwise specified, the definitions in the Dictionary which form part of the terms of the WBA 2.2 apply and: Cancellation Notice has the meaning given in clause 6. Current WBA means the wholesale broadband agreement which provides for the supply by NBN Co of the NEBS by means of the NBN Co Fibre Network and NBN Co Wireless Network and, if applicable, the NBN Co FTTB Network, entered into by NBN Co and Customer prior to the date of this agreement. FTTN BRT means the business readiness testing programme in respect of the FTTN BRT Product. FTTN BRT End Date means the date notified by NBN Co to Customer in writing, as amended in accordance with clause 11. FTTN BRT EOI Process means the process set out in the document entitled Invitation for Expressions of Interest - Fibre to the Node Business Readiness Testing issued by NBN Co on 7 May 2015 or such other process undertaken by NBN Co to select Customers to participate in the FTTN BRT. FTTN BRT Launch Date means the date notified by NBN Co to Customer in writing, as amended in accordance with clause 11. FTTN BRT Product means the NEBS supplied by means of the NBN Co FTTN Network, supplied by NBN Co to Customer pursuant to this agreement. FTTN BRT Testing Period means the period commencing on the FTTN BRT Launch Date and ending on the earlier of the FTTN Commercial Launch Date and the FTTN BRT End Date. 3
Test means each test conducted by NBN Co with the assistance of Customer under this agreement, in relation to the FTTN BRT Product. Test Information in relation to each Test means any observations, findings or results in connection with the Test. Test Plan means the plan provided by NBN Co to Customer in relation to each Test including any definition or description document, which describes how Customer must perform the relevant Test and the assistance and direction which NBN Co intends to provide. WBA 2.2 means: if NBN Co has not published the WBA 2.2 SFAA, the WBA 2.2 Draft; if NBN Co has published the WBA 2.2 SFAA, but NBN Co and Customer have not entered into a wholesale broadband agreement on the terms of the WBA 2.2 SFAA, the WBA 2.2 SFAA; or if NBN Co has published the WBA 2.2 SFAA and NBN Co and Customer have entered into a wholesale broadband agreement on the terms of the WBA 2.2 SFAA, that wholesale broadband agreement as executed. WBA 2.2 Draft means the draft wholesale broadband agreement which provides for the supply by NBN Co of the NEBS by means of the NBN Co Fibre Network, NBN Co Wireless Network, NBN Co FTTB Network and NBN Co FTTN Network, in the form provided by NBN Co to Customer from time to time. WBA 2.2 SFAA means the wholesale broadband agreement which provides for the supply by NBN Co of the NEBS by means of the NBN Co Fibre Network, NBN Co Wireless Network, NBN Co FTTB Network and NBN Co FTTN Network, in the form published by NBN Co from time to time. 1.2 Other rules of interpretation A reference to published means made available on NBN Co's website as a standard form of access agreement for the purposes of Part XIC of the Competition and Consumer Act 2010 (Cth). A reference to "enter into" a wholesale broadband agreement on the terms of the WBA 2.2 SFAA includes entry into an agreement to vary the Current WBA by adopting the amendments contained in the WBA 2.2 SFAA. 1.3 General Terms Module H of the Head Terms of the WBA 2.2 will apply to this agreement as if this agreement were part of the terms of the WBA 2.2. 1.4 Precedence Notwithstanding anything else in this document or the terms of the WBA 2.2, if there is any inconsistency between the terms of the WBA 2.2 and this document, the terms of this document will prevail to the extent of the inconsistency. 1.5 Prior to execution of WBA 2.2 Unless and until Customer and NBN Co have separately entered into a wholesale broadband agreement on the terms of the WBA 2.2 SFAA: this agreement does not vary or amend and does not form part of the Current WBA; 4
(d) the terms contained in the WBA 2.2 will apply in respect of the ordering and supply of the FTTN BRT Product; a reference in this document to "this agreement" includes the terms contained in the WBA 2.2; and for this purpose the terms of the WBA 2.2 will be read as if a reference therein to "this agreement" includes the terms of this document. 2 Pre-condition This agreement is of no force and effect unless and until: NBN Co and Customer have executed and exchanged a wholesale broadband agreement on the terms of either the Current WBA or the WBA 2.2 SFAA; and Customer has been notified in writing by NBN Co that it has been selected to participate in the FTTN BRT in accordance with the FTTN BRT EOI Process. 3 FTTN BRT Product Terms of Supply - WBA 2.2 During the FTTN BRT Testing Period, Customer may place an order for the FTTN BRT Product, and the terms of the WBA 2.2 and this agreement will apply to that order and any supply of the FTTN BRT Product by NBN Co (including any Voiceband Continuity). 4 Restrictions on Use 4.1 Acknowledgement The FTTN BRT Product is provided in a limited test environment and on a trial only basis for business readiness testing and evaluation purposes only, and Customer must not use the FTTN BRT Product for any other purpose. The FTTN BRT Product is only available in certain areas and is subject to capacity limitations, including as to the number of FTTN BRT Products that may be concurrently supplied by NBN Co at any particular time. 4.2 Interruptions NBN Co does not warrant that the FTTN BRT Product will be continuous or fault free in operation. NBN Co may interrupt, suspend or cancel the supply or performance of the FTTN BRT Product or any Non-Voiceband Service 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 arising by reason of an interruption, suspension or cancellation of the supply or performance of the FTTN BRT Product or any Non-Voiceband Service in accordance with clause 4.2. 5
4.3 Not Suitable for Commercial Use or Priority Assistance Customer must not use the FTTN BRT 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; being used to provide Priority Assistance; and/or being used by a medical or security alarm (or other such devices or purposes). 4.4 Installation consent Prior to placing an order for a FTTN BRT Product in respect of a Service Class 11, Service Class 12 or Service Class 13 Premises, Customer must ensure that an FTTB/FTTN Installation Consent has been obtained from all Authorised Account Holders in respect of any affected existing service at that Premises. Customer must notify NBN Co immediately if any FTTB/FTTN Installation Consent is withdrawn at any time. Where Customer places an order for a FTTN BRT Product in respect of a Service Class 11, Service Class 12 or Service Class 13 Premises, and Customer is the supplier of any affected existing Voiceband Service and/or Non-Voiceband Service to that Premises: Customer irrevocably consents to an FTTB/FTTN Installer carrying out any FTTB/FTTN Installation Activity in respect of that service; and must inform NBN Co if there is a priority assistance service provided on the same Line over which that FTTN BRT Product is to be supplied. (d) If an Other NBN Co Customer places an order for a FTTN BRT Product in respect of a Service Class 11, Service Class 12 or Service Class 13 Premises, and Customer is the supplier of an existing Voiceband Service and/or Non-Voiceband Service to that Premises, Customer irrevocably consents to an FTTB/FTTN Installer carrying out any FTTB/FTTN Installation Activity necessary to supply the relevant service to that Other NBN Co Customer and that authority shall also be held for the benefit of the supplier to Customer of the Voiceband Service or Non-Voiceband Service including for Telstra Corporation Limited to undertake the activities contemplated by the Telstra Migration Plan. 4.5 Non-Voiceband Service transition Customer acknowledges that: the FTTN BRT Product and a Non-Voiceband Service cannot be supplied simultaneously on the same Line in respect of a Premises served by the NBN Co FTTN Network; and the supply of the FTTN BRT Product to a Premises served by the NBN Co FTTN Network will result in the disconnection of any Non-Voiceband Service supplied to that Premises on the Line on which that Ordered Product is supplied. Customer must not place an order for a FTTN BRT Product supplied by means of the NBN Co FTTN Network until the date notified by NBN Co to Customer in writing unless Customer is 6
the only supplier of Non-Voiceband Services and Voiceband Services on the Line on which that FTTN BRT Product is to be supplied. (d) Without limiting any other rights of NBN Co under this agreement or the WBA 2.2, if Customer places an order for a FTTN BRT Product in breach of clause 4.5, NBN Co may Suspend, disconnect or deactivate the FTTN BRT Product without notice to Customer. If an Other NBN Co Customer places an order for a FTTN BRT Product in breach of clause 4.5 of the "FTTN Business Readiness Testing Special Terms" to which it is a party and as a result a Voiceband Service or a Non-Voiceband Service supplied to that Premises by Customer is disconnected by NBN Co then, without limiting any rights Customer may have against that Other NBN Co Customer, Customer hereby authorises NBN Co to cause that disconnection and that authority shall also be held for the benefit of the supplier of the Voiceband Service or Non-Voiceband Service to Customer. 4.6 Consequences of Breach Any breach of this clause 4 will be deemed to be a breach under the terms of the WBA 2.2. 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 FTTN BRT Products under this agreement, so as to enable NBN Co to develop and enhance its network, systems, facilities, products, services and processes through the learnings gained by NBN Co and Customer from the Tests. Customer must participate in Tests in accordance with: (iii) any Test Plan for the Test as provided by NBN Co to Customer; any operational procedures agreed between the parties from time to time; and NBN Co's reasonable instructions, policies and procedures regarding the Test that are notified by NBN Co to Customer from time to time. On request by NBN Co, Customer must provide to NBN Co any Test Information within any reasonable timeframe specified by NBN Co. 6 End of Tests Each Test will end on the earlier of: completion of the Test in accordance with any Test Plan provided by NBN Co; and the date that NBN Co gives notice to Customer cancelling the Test (Cancellation Notice). NBN Co may issue a Cancellation Notice at any time, but will give Customer as much notice as is reasonably practicable in the circumstances. 7
(d) The issuing of a Cancellation Notice only terminates the performance of the specific Test to which the notice relates, and does not affect the continued operation of this agreement. A Cancellation Notice may terminate a specific Test or part of a Test. 7 Co-operation 7.1 Coordinated communications plan Customer must work collaboratively with NBN Co to develop and deliver to potential End Users a coordinated communications plan for the purposes of encouraging potential End Users to participate in the FTTN BRT. 7.2 End Users Customer must manage all aspects of its relationship with End Users, including: (iii) 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 handling service, technical and maintenance enquiries and requests, disputes, provision of information and communications as reasonably directed by NBN Co (including the FTTN BRT Launch Date, the FTTN BRT End Date and the processes for CPE installation and testing); and ensuring that it enters into an agreement with End Users which allows Customer to comply with this agreement (including with regard to the basis on which any Downstream Product is supplied and its limitations, including 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). Customer must use its reasonable endeavours to ensure that: each End User to which it supplies a Customer Product that relies on the FTTN BRT Product as an input has access to an alternative voice telephony service for the duration of that supply; and each Downstream Customer ensures that each End User to which that Downstream Customer supplies a Downstream Product that relies on the FTTN BRT Product as an input has access to an alternative voice telephony service for the duration of that supply. 7.3 Connections Customer will provide reasonable assistance to NBN Co regarding the connection of the FTTN BRT Product. Without limiting the generality of the foregoing: Customer will be responsible for providing and installing VDSL modems that may be required for the purposes of the FTTN BRT in accordance with instructions, 8
policies, procedures and specifications notified by NBN Co to Customer from time to time; and where NBN Co requests or a Test Plan requires Customer to install a splitter on the line over which the FTTN BRT Product is or will be supplied, Customer will be responsible for providing and installing that splitter in accordance with instructions, policies, procedures and specifications notified by NBN Co to Customer from time to time. 7.4 Errors, defects and deficiencies Customer will notify NBN Co of any matter which it considers to be a material error, defect or deficiency in the FTTN BRT Product or NBN Co's procedures regarding the ordering or supply of the FTTN BRT Product. 7.5 Review and evaluation At regular intervals during the FTTN BRT Testing Period and after completion of the Test activities, the parties will, at NBN Co s request, meet to review and evaluate the performance of the FTTN BRT Product, the NBN Co FTTN Network and NBN Co s relevant processes and procedures. At regular intervals during the FTTN BRT Testing Period and after completion of the Test activities, Customer will, at NBN Co s request, obtain or assist NBN Co to directly obtain (as applicable) additional feedback regarding the performance of the FTTN BRT Product, the NBN Co FTTN Network and NBN Co s relevant processes and procedures from End Users. 7.6 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 FTTN BRT Product. 8 Changes The parties acknowledge that: (iii) the NBN Co Operations Manual has been developed on the basis that certain NBN Co systems, processes, network releases and integrated releases will be available on and from FTTN Commercial Launch; the owner of the Other Copper Network over which NBN Co is supplying the FTTN BRT Product and that is being used in connection with the performance of Tests may require NBN Co to comply with (and/or procure Customer s compliance with) certain operational processes and procedures in relation to the ordering and supply of the FTTN BRT Product; and for these reasons, it may be necessary for NBN Co to modify the NBN Co Operations Manual as it applies in relation to the FTTN BRT Product during the FTTN BRT Testing Period. Notwithstanding clause 3, during the FTTN BRT Testing Period NBN Co may by notice in writing modify the NBN Co Operations Manual as it applies in respect of the FTTN BRT Product during the FTTN BRT Testing Period. 9
Where practicable, NBN Co will use its best endeavours to discuss such modifications with Customer before notifying Customer of such modifications. 9 No Service Levels During the FTTN BRT Testing Period, the Service Levels in respect of the NEBS supplied by means of the NBN Co FTTN Network will apply in respect of the FTTN BRT Product as if those Service Levels were Operational Targets and accordingly are non-binding and aspirational and no Commercial Rebates or CSG Compensation are payable in respect of the FTTN BRT Product. 10 Charges During the FTTN BRT Testing Period, NBN Co waives all Charges set out in the Price List other than the Charges set out in sections 1.2 and 1.3 of Part A of the Price List. 11 FTTN BRT Launch and End Dates NBN Co may change the FTTN BRT Launch Date and/or the FTTN BRT End Date by giving Customer as much notice as is reasonably possible. 12 FTTN Commercial Launch Date WBA 2.2 executed This clause 12 will be of no force and effect unless and until NBN Co and Customer have entered into a wholesale broadband agreement on the terms of the WBA 2.2 SFAA (in this clause, the WBA). With effect on and from the FTTN Commercial Launch Date: (iii) NBN Co will continue to supply and Customer will continue to acquire the FTTN BRT Product, subject to and in accordance with the terms of the WBA; the terms of this agreement (including any modifications to the processes contained in the NBN Co Operations Manual notified pursuant to clause 8) will no longer apply in respect of the ongoing ordering and supply of the FTTN BRT Product; and the FTTN BRT Product will cease to be the FTTN BRT Product and will become the NEBS supplied by means of the NBN Co FTTN Network, pursuant to the WBA and, for the purposes of clause 4.2, NBN Co notifies Customer that, on or about such time, there may be an interruption to, or a suspension of, the supply or performance of that FTTN BRT Product and any Non-Voiceband Service for the purposes of updating NBN Co s systems and data to make available products and services in relation the NBN Co FTTN Network. (d) With effect on and from the FTTN Commercial Launch date, every order in respect of the FTTN BRT Product that has not been completed will be deemed to be an order in respect of the NEBS supplied by means of the NBN Co FTTN Network pursuant to the WBA. With effect on and from the FTTN Commercial Launch Date: all Charges will apply; the Service Levels Schedule will apply; and 10
(iii) clauses 4 and 5 of this agreement will not apply, to the ongoing supply of each NEBS supplied by means of the NBN Co FTTN Network Product pursuant to the WBA. (e) Notwithstanding this clause 12, any Charges specified in section 3 of Part A of the Price List arising during the FTTN BRT Testing Period and that were waived for in respect of the FTTN BRT Product pursuant to clause 10, will not be retrospectively charged. 13 FTTN Commercial Launch Date - no WBA 2.2 executed This clause 13 will be of no force and effect if NBN Co and Customer have entered into a wholesale broadband agreement on the terms of the WBA 2.2 SFAA. With effect on and from the FTTN Commercial Launch Date NBN Co may immediately: Suspend, disconnect or discontinue the supply of the FTTN BRT Product (in whole or in part) or services supplied under this agreement; and/or terminate this agreement by notice in writing to Customer. 14 Expiry of FTTN BRT Testing Period prior to FTTN Commercial Launch Date If the FTTN BRT Testing Period expires prior to the FTTN Commercial Launch Date, then, with effect from the FTTN BRT End Date, NBN Co may immediately: Suspend, disconnect or discontinue the supply of the FTTN BRT Product (in whole or in part) or services supplied under this agreement; and/or terminate this agreement by notice in writing to Customer. 15 Termination This agreement terminates on the earlier to occur of: (d) (e) if clause 12 applies, the FTTN Commercial Launch Date; if clause 13 applies, the date specified in a notice issued pursuant to clause 13; the date that is 10 Business Days after Customer gives notice to NBN Co that it wishes to terminate this agreement; the date that is 10 Business Days after NBN Co gives notice to Customer that it wishes to terminate this agreement; and the date NBN Co gives notice to Customer that NBN Co s contractual rights to access, use, modify, disconnect or reconnect any part of the Other Copper Network over which NBN Co is supplying the FTTN BRT Product or that is being used in connection with the performance of Tests have been varied or terminated for any reason such that NBN Co cannot continue to supply the FTTN BRT Product in accordance with this agreement and WBA 2.2. 11
16 Release and waiver Customer waives and releases Telstra Corporation Limited and its Related Bodies Corporate (collectively Telstra) from all liability, claims, actions, suits, demands, proceedings and complaints against Telstra which Customer may otherwise have made or brought in connection with the supply of the FTTN BRT Product, the Customer s or any other party s use of the FTTN BRT Product, or the supply of services using the FTTN BRT Product as an input by Customer or any other party, including in relation to any interference with or degradation or interruption of other services acquired by Customer from Telstra. Customer indemnifies NBN Co against all Losses suffered or incurred by NBN Co in connection with any claim, action, suit, demand, proceeding or complaint made or brought by Customer or any End User against Telstra of the kind referred to in clause 16. 12
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 Executed by [insert full name of Customer] in accordance with section 127 of the Corporations Act 2001 (Cth) by: Signature of director / company secretary Signature of director Name of director / company secretary Name of director Date of signature Date of signature [Insert execution blocks for any further related bodies corporate also acquiring services as parties in their own right] 13