Fair Use Policy

 

1. About This Policy

This is the The company’s Fair Use Policy.  It only applies to the Service we supply on the Optus Mobile Digital network. So in this Policy, ‘service’ or ‘services’ means the Digital Mobile Service on the Optus Network, as applicable to you, the individual user.  This policy forms part of our Standard Form of Agreement

 

2. General

  1. This policy aims to ensure we are able to provide quality mobile services to all of our customers, and no customers are disadvantaged by the behaviour of others.
  2. This policy applies where:
    1. there is a:
      1. level of free time on calls, or
      2. flat charge for part or all of a call, whether in connection with a specific promotion or pricing plan, or a generally available pricing plan.

        This includes, without limitation, Business Fleet Special Promotion, Business Fleet - Day Promotion, Free Call, Free Calls & Text and Flat Call
    2. you may send or receive text or multimedia messages, for example, without limitation, SMS, MMS, My Updates (SMS), SMS Broadcast and EmailSMS (see clause 5 below),
    3. you may connect to and use information services on Zoo (via WAP CSD, WAP GPRS or 3G) (see clause 5 below),
    4. you may connect to the Internet using Wireless Internet (see clause 5 below),
    5. you use voice calling on the Push to Talk value added service feature (see clause 6 below),
    6. you use Web SMS, Web MMS, SMS Broadcast, Zoo (via WAP CSD, WAP GPRS or 3G), Wireless Internet or BlackBerry (see clause 7 below);
    7. you use the Mobile IM value added service feature (see clause 8 below);
    8. you use the Video Calling value added service feature (see clause 10 below);
    9. you use the MobileMail value added service feature (see clauses 7 and 11 below); or
    10. you use theVoicemail value added service feature and you are a small or medium business customer connected to a plan with an ‘Unlimited Voicemail’ offer (see clause 12 below).
    11. you use the MySpace Mobile value added service feature (see clause 13 below); or
    12. you use the YouTube Mobile value added service feature (see clause 14 below)

 

3. Free Time or Flat Charge on Calls - Excessive Use

  1. If you are an excessive user of free time or flat charge call offers we may ask you to reduce your use of these calls (outgoing or incoming).  If usage continues at an excessive level following this request and you are an:
    1. A customer of the company who is using a mobile service on the Optus Network, we may refuse you access to these offers.  You will then be charged our standard rates for calls, and
  2. We consider 'excessive' use to be usage of more than 2,000 minutes free per month per service.
  3. The excessive use provisions of this clause 3 do not apply to
    1. consumer Timeless Plan customers who make calls that qualify as a standard local call or a standard national call or a call to an Australian GSM mobile under that offer; or
    2. small or medium business Timeless Plan customers who make calls that qualify as a standard local call or a standard national call or a call to an Australian GSM mobile under that offer.

 

4. Free Time or Flat Charge on Calls - Unreasonable Use

  1. Where we consider your use of a free time or flat charge offer is unreasonable, then we may:
    1. suspend your access to that or any other free time or flat charge offer, or
    2. suspend or cancel the service or your access to a value added service feature, in each case immediately and without notice to you.
      Please note that our right to suspend or cancel the service without notice to you under this clause overrides any requirement we may have to give you notice in other parts of the Standard Form of Agreement
  2. Without limiting the meaning of 'unreasonable', we supply the service and each of the value added services for the
    purpose of you:
    1. making calls from the receiving calls to your mobile phone, and
    2. sending content from and receiving content to your mobile phone on our network or the network of any supplier for your own personal or business use.
  3. We consider your use of the service or a value added service feature, to be unreasonable if you:
    1. make or receive calls or send or receive content on our network other than for your own personal or business use, as described in paragraph (b) above,
    2. wholesale any service (including transit, refile or aggregate domestic or international traffic) on our network, or
    3. use the service (including any Optus SIM card) in connection with a device that switches ore reroutes calls to or from our network or the network of any supplier,

      without obtaining our written consent first.  We may give or withhold our consent, or make our consent subject to conditions, in our discretion.
  4. We also consider your use of the service or a value added service feature to be unreasonable if you set up switch devices which overcome the time cap on free or flat call rates, thus keeping a line open potentially for hours and limiting the ability for other customers to access our network.

 

5. Sms, Mms, Zoo And Wireless Internet - Excessive And Unreasonable Use

  1. As set out above, this policy applies to:
    1. the sending and receiving of SMS text messages by A customer of the company who is using a mobile service on the Optus Network
    2. the sending and receiving of MMS multimedia messages by A customer of the company who is using a mobile service on the Optus Network, and
    3. the use of Zoo and Wireless Internet.
  2. To ensure the availability of these value added service features to all eligible customers, if you are an excessive user of these value added service features we may request you reduce your use (outgoing or incoming messages, or uploading or downloading of data, as the case may be) of these value added service features.  If usage continues at an excessive level, we may suspend your access to these value added service features.
  3. Further, for any specials relating to these value added service features, if you are an excessive user of these value added service features under the special we may request you to reduce your use (outgoing or incoming messages, or uploading or downloading of data, as the case may be) of these value added service features.  For the period of the special, if usage continues at an excessive level, we may bill you the standard rates for all messages or usage above the number or amount we consider as excessive usage.
  4. We consider 'excessive' use of:
    1. SMS to be usage of more than 500 SMS text message sent per month per service
    2. MMS to be usage of more than 500 MMS messages sent per month per service,
    3. MMS Video to be usage of more than 300 MMS Video messages requested per month per service,
    4. Zoo via WAP CSD to be usage of more than 20 hours per month per service,
    5. Zoo via WAP GPRS to be usage of more than 5 megabytes downloaded per month per service,
    6. Zoo via 3G to be usage of more than 5 megabytes downloaded per month, and
    7. Zoo, for the Live TV Service, to be usage of more than 10 megabytes downloaded per month per service.
    8. Zoo, for the PhoneBook Backup service, to be more than 5 backups per day per service
  5. The excessive use provisions of this clause 5 do not apply to:
    1. consumer or small or medium business Timeless Plan or Cap Plan customers who send SMS that qualify as a standard SMS to any Australian GSM mobile under that offer; or
    2. consumer or small or medium business Timeless Plan customers who send MMS that qualify as a standard MMS to any Australian GSM mobile under that offer.
  6. Additionally, we may suspend your access to these value added service features without notice where we deem your use to be unreasonable.  Without limiting the meaning of 'unreasonable', we supply the service and each of the value added services for the purpose of you:
    1. making calls from the receiving calls to your mobile phone, and
    2. sending content from and receiving content to your mobile phone on our network or the network of any supplier for your own personal or business use.
      Please note that our right to suspend your access to these value added service features without notice under this clause overrides any requirement we may have to give you notice in other parts of the Standard Form of Agreement
  7. We consider your use of the service or a value added service feature, to be unreasonable if you:
    1. make or receive calls or send or receive content on our network or the network of any supplier other than for your own personal or business use, as described in paragraph (b) above,
    2. wholesale any service (including transit, refile or aggregate domestic or international traffic) on our network or the network of any supplier, or
    3. use the service (including any SIM card) in connection with a device that switches or reroutes calls to or from our network or the network of any supplier, without obtaining our written consent first.  We may give or withhold our consent, or make our consent subject to conditions, in our discretion.
  8. We also consider your use of the service or a value added service feature to be unreasonable if you set up switch devices which overcome the time cap on free or flat call rates, thus keeping a line open potentially for hours and limiting the ability for other customers to access our network or the network of any supplier.
  9. Where we deem your use unreasonable, we may bill you at the standard rates for all messages above the number defined as excessive usage.

 

6. Push To Talk - Excessive Use

  1. As set out above, this policy applies to all Push to Talk usage.  To ensure the availability of our services to all eligible customers, if you are an excessive user of Push to Talk we may request that you reduce your use of these calls (outgoing or incoming).  If excessive use of Push to Talk continues following this request, we may charge any excess usage at your peak digital mobile voice calling rate.
  2. We consider 'excessive' use of Push to Talk to be more than 150 minutes of use per month per service on the daily fee.
  3. We consider 'excessive' use of Push to Talk to be more than 200 minutes of use per month per service on the monthly rate for Push to Talk Service.
  4. The excessive use provisions of this clause 6 do not apply to
    1. consumer or small or medium business Timeless Plan customers who use Push to Talk that qualify under that offer; or
    2. small or medium business Timeless Plan customers who use Push to Talk that qualify under that offer.

 

7. Web SMS, Web MMS, SMS Broadcast, Zoo (Via WAP CSD, WAP GPRS or 3G), Wireless Internet, Blackberry from us or Mobilemail - Acceptable Use

  1. If you use Web SMS, Web MMS, SMS Broadcast, Zoo (via WAP CSD, WAP GPRS or 3G), Wireless Internet, BlackBerry from us or any of MobileMail, MobileMail Corporate or MobileMail Business value added services, you must comply with this policy, which is designed to ensure your use of the service does not break any laws or interfere with the right of our other customers to use the service.  If you fail to comply, we may suspend or cancel your use of the service or value added service feature.
  2. To the extent that your use of the service provides you with access to the Internet, you must be over the age of 18 years of age, or if you are not over 18 years of age, you must obtain the consent of a parent, teacher or other responsible adult prior to accessing the service.
  3. You must not use the service in a manner which interferes with the rights of other users.  For example, you must not:
    1. provide false user information to us or other users,
    2. send large amounts of unsolicited or unwanted emails or message to individuals or individual business accounts, or
    3. gain access to a person's private information (or attempt to do so).
  4. In using the service, you must not break any laws or infringe the rights of other persons.  For example, you must not:
    1. distribute or make available indecent, obscene, offensive, pornographic, illegal or confidential material,
    2. defame, harass or abuse anyone or violate their privacy,
    3. contravene any applicable laws,
    4. distribute or make available material that is misleading or deceptive as to your identity,
    5. infringe any person's intellectual property rights,
    6. monitor data or traffic on any network or system if you do not have the authorisation of the owner of the network or system to do so, or
    7. interfere or disrupt the service, any computer system access through it or any other person's use of it.
  5. You must comply with any rules imposed by any third party whose content or service you access using the service.
  6. You may only use any content accessible through the service for personal and non-commercial purposes.  You may not otherwise copy, publish, re-publish, re-distribute, re-communicate or otherwise commercially exploit such content in any form or by any method whatsoever.  For the avoidance of doubt, this prohibition includes framing, linking, posting in news groups and any other form of copying by persons other than as approved by the content provider.
  7. To detect and deal with breaches of this policy and to ensure compliance with any relevant industry code of practice, notification or direction by any relevant regulatory authority, we:
    1. will co-operate with other carriage service providers to control unacceptable user behaviour,
    2. may give your details to the police and to other law enforcement agencies if you are suspected of breaking any laws in connection with the use of the service,
    3. may implement technical mechanisms to prevent behaviour which breaches this policy (for example, which block multiple postings before they are forwarded to their intended recipients),
    4. may exercise any rights we have under the Standard Form of Agreement, including suspending or cancelling use of the service,
    5. may remove any content from our servers,
    6. may filter the content made available to you via the service or restrict your access to a particular site,
    7. may take any other action we deem appropriate, including taking action against offenders to recover costs and expenses of identifying them.

 

8. Mobile Im - Excessive Use

  1. As set out above, this policy applies to all Mobile IM usage.  To ensure the availability of our services to all eligible customers, if you are an excessive user of Mobile IM we may request that you reduce your use of these messages (outgoing or incoming).  If excessive use of Mobile IM continues following this request, we may charge any excess usage at your peak digital mobile rate (GSM or 3G).
  2. We consider 'excessive' use of Mobile IM to be more than 1Mb of data usage per day when you pay us a daily rate.
  3. We consider 'excessive' use of Mobile IM to be more than 10Mb of data usage per month when you pay us a monthly rate for Mobile IM Services.

 

9. Video Calling – Excessive Use

  1. As set out above, this policy applies to all Video Calling usage.  To ensure the availability of our services to all eligible customers, if you are an excessive user of the Video Calling we may request that you reduce your use of this value added service feature.  If excessive use of Video Calling continues following this request, we may suspend your access to this value added service feature.
  2. We consider 'excessive' use of Video Calling to be more than 500 video calls per month.
  3. The excessive use provisions of this clause 10 do not apply to
    1. consumer Timeless Plan customers who make video calls that qualify as a standard national video call under that offer; or
    2. small or medium business Timeless Plan customers who make video calls that qualify as a standard national video call under that offer.

 

10. Mobilemail – Excessive Use

  1. This policy applies to use of the MobileMail value added service. To ensure the availability of our services to all eligible customers, if you are an excessive user of MobileMail, we may request that you reduce your use of the service.  If excessive use of MobileMail continues following this request, we may suspend your access to the value added service feature.
  2. We consider ‘excessive’ use of MobileMail to be more than 5MB downloaded per month when you pay us a monthly rate for MobileMail.

 

11. Mobmusic - Excessive Use

  1. As set out above, this policy applies to all MobMusic Mobile usage.  To ensure the availability of our services to all eligible customers, if you are an excessive user of MobMusic we may request that you reduce your use of the MobMusic service. If excessive use of MobMusic continues following this request, we may suspend your service.
  2. We consider 'excessive' use of MobMusic to be the download of more than 1000 music tracks per month.

 

12. Unlimited Voicemail – Unreasonable Use

  1. As set out above, this policy applies to use of the Voicemail value added service by small or medium business customers connected to a plan offering ‘Unlimited Voicemail’
  2. To ensure the availability of our services to all eligible customers, if we consider your use of the Unlimited Voicemail offer is unreasonable, then we may suspend your access to that or any other promotion or offer immediately and without notice to you.  We will then charge you our standard rates for your use of the Voicemail value added service (as set out in the standard pricing table or the company’s rate sheet for that value added service).
  3. Please note that our right to suspend or cancel the value added service without notice to you under this clause overrides any requirement we may have to give you notice in other parts of the Standard Form of Agreement
  4. Without limiting the meaning of 'unreasonable', we:
    1. supply the Voicemail value added service to you for the purpose of you storing or retrieving voicemail for business purposes, but not for the purposes of re-sale, re-supply or commercial exploitation.  We consider your use of the value added service to be unreasonable if you store or retrieve voicemail on our network for the purpose of re-sale, re-supply or commercial exploitation, without obtaining our written consent first.  We may give or withhold our consent, or make our consent subject to conditions, in our discretion.
    2. also consider your use of the value added service to be unreasonable if:
      1. your usage of the value added service affects other customers’ access to the network; or
      2. you set up switch devices which have the effect of potentially keeping a line open for hours and limiting the ability for other customers to access the network or the network of any supplier.

 

13. ‘Yes’ Cap Plans And ‘Yes’ Timeless Plans - Unreasonable Use

  1. This policy applies to all ‘yes’ Cap Plans and ‘yes’ Timeless Plans. Without limiting our rights under the agreement, where we consider your use of the following offers is unreasonable or your use of the following offers does not comply with the terms of the offer then we may immediately without notice to you suspend your access to these offers:` 
    1. Unlimited standard local and national calls within Australia on selected ‘yes’ Cap Plans and ‘yes’ Timeless Plans (“Local & National Calls” Offer);
    2. Unlimited standard text within Australia on selected ‘yes’ Cap Plans and ‘yes’ Timeless Plans (“Text” Offer); and/or
    3. Unlimited standard national SMS and MMS within Australia on selected ‘yes’ Cap Plans (from 3 May 2009).
  2. We may then charge you our standard rates for those calls (as set out in the standard pricing table for the relevant service).
    Please note that our right to suspend or cancel the service without notice to you under this clause overrides any requirement we may have to give you notice in other parts of the agreement, for example under clauses 11.3(b) and 12.1(b) of the Consumer terms or the SMB terms (as applicable to you).
    3. Consumer Offer

    In this section, “Unreasonable use” means, in respect of:

    1. The Local & National Calls, the Text Offer and the Unlimited SMS and MMS Offer for consumer customers, we supply the service for the purpose of you making calls from your personal mobile phone, on our network for your own personal use and not for any commercial purpose.
    2. commercial purpose includes the following activities:
      1. calls made for a business operated at home;
      2. running a telemarketing business or call centre;
      3. SIM boxing or using other devices;
      4. re-supplying or reselling the service; or
      5. other similar activities.
    3. We consider your use of the service to be unreasonable if you make or receive calls on our network other than for your own personal use, as described in this paragraph without obtaining our written consent first.  We may give or withhold our consent, or make our consent subject to conditions, in our discretion.

    Small and Medium Business     Offer

    This offer applies to Small and Medium Business customers, as defined by the company, who sign up for the special offer before 31 August 2008.

    1. In this section, “Unreasonable use” means, in respect of:
      1. The Local & National Calls and the Text Offer for Small and Medium Business customers, we supply the service for the purpose of you making calls for business purposes, but not for the purposes of re-sale, re-supply, SIM boxing or using other devices.
      2. We consider your use of the service to be unreasonable if you make or receive calls on our network for the purpose of re-sale, re-supply or SIM boxing or using other devices, without obtaining our written consent first.  We may give or withhold our consent, or make our consent subject to conditions, in our discretion

 

14. Business Cap Plans And Timeless Business Plans - Unreasonable Use

  1. This policy applies to all Business Cap Plans and Timeless Business Plans. Without limiting our rights under the agreement, where we consider your use of the following offers is unreasonable or your use of the following offers does not comply with the terms of the offer then we may immediately without notice to you suspend your access to these offers:
    1. Unlimited standard local and national calls within Australia on selected Business Cap Plans and Timeless Business Plans (“Local & National Calls” Offer); and/or
    2. Unlimited standard text within Australia on selected Business Cap Plans, ‘yes’ Business Cap Plans and Timeless Plans (“Text” Offer); and/or
    3. Unlimited Voicemail within Australia on selected ‘yes’ Business Cap Plans, Business Cap Plans and Timeless Plans (“Voicemail” Offer); and/or
    4. Unlimited standard national SMS and MMS within Australia on selected ‘yes’ Business Cap Plans (from 3 May 2009).
  2. We may then charge you our standard rates for those calls (as set out in the standard pricing table for the relevant service).
    Please note that our right to suspend or cancel the service without notice to you under this clause overrides any requirement we may have to give you notice in other parts of the Standard Form of Agreement
  3. In this section, “Unreasonable use” means, in respect of:
    1. The Local & National Calls, the Text Offer and the Unlimited standard national SMS and MMS offer for Small and Medium Business customers, we supply the service for the purpose of you making calls or text for business or personal purposes, but not for the purposes of re-sale, re-supply, SIM boxing or using other devices or any other similar activities.
    2. We consider your use of the service to be unreasonable if you make or receive calls on our network for the purpose of re-sale, re-supply or SIM boxing or using other devices or any other similar activities, without obtaining our written consent first.  We may give or withhold our consent, or make our consent subject to conditions, in our discretion.
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