Variation Agreement Service Level Improvements

Transcription

1 Variation Agreement Service Level Improvements Wholesale Broadband Agreement This document forms part of NBN Co s Wholesale Broadband Agreement, which is a Standard Form of Access Agreement for the purposes of Part XIC of the Competition and Consumer Act 2010.

2 Variation Agreement Service Level Improvements Wholesale Broadband Agreement 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. You may reproduce and publish this document in whole or in part for educational or non-commercial purposes as approved by nbn in writing. Copyright 2018 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 and must make its 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 s final position on the subject matter of this document, except where stated otherwise. Any requirements of nbn or views expressed by nbn in this document may change as a consequence of nbn finalising formal technical specifications, or legislative and regulatory developments. Environment nbn asks that you consider the environment before printing this document. SFAA Wholesale Broadband Agreement Variation Agreement - Service Level Improvements 2

3 Variation Agreement Service Level Improvements Parties This variation agreement is entered into between: nbn co limited (ABN ) of Level 11, 100 Arthur Street, North Sydney NSW 2060 (nbn); 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 nbn is offering to vary the Wholesale Broadband Agreement (version 3.0) entered into between nbn and Customer (Customer s WBA) on the terms set out in this variation agreement. Amendments nbn and Customer agree that, upon the later of the date that the parties execute this variation agreement and 11 December 2018 (Effective Variation Date): (a) (b) (c) (d) (e) Customer s WBA will be amended in accordance with Attachment A to this agreement (the Amendments); to the extent that Customer s WBA as at the Effective Variation Date differs from the Baseline WBA SFAA (including in respect of section references) the Customer s WBA will be amended accordingly to give full effect to the Amendments set out in Attachment A; any subsequent variation to Customer s WBA will not be taken to reverse or otherwise amend the Amendments except where expressly set out in any such variation to the Customer s WBA; the parties accrued rights under, and the continued operation of, the Customer s WBA will be otherwise unaffected by this variation agreement and will continue in full force and effect; and Baseline WBA SFAA means the Wholesale Broadband Agreement Standard Form Access Agreement as at the date on which this variation agreement is first offered by nbn to Customer or any Other Customer. General terms Unless otherwise specified, capitalised terms used in this variation agreement have the meanings given to those terms in the Customer s WBA. Clauses H4.5 (Counterparts) and H4.10 (Governing law and jurisdiction) of the Head Terms of the Customer s WBA apply to this variation agreement. 3

4 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] 4

5 Attachment A Amendments to Customer s WBA (a) The nbn Ethernet Product Terms document forming part of Customer s WBA is amended as follows: Section 17.2(a) is amended as follows: Delete the section, substitute: sections 2.4(c), 8.5(c), 9.5(a), 10.4(c) and 18 of the nbn Ethernet Service Levels Schedule; and (b) The nbn Ethernet Service Levels Schedule document forming part of Customer s WBA is amended as follows: The description of Part A: Service Levels in the Roadmap is amended as follows: Delete the first sentence, substitute: Part A describes nbn's Service Levels and Performance Objectives including those that have Commercial Rebates if not achieved (End User Connections, Appointments, End User Fault rectification, Enhanced Fault rectification and Trouble Ticket Appointments). Section 1.4 is amended as follows: (A) Section 1.4(b): delete 90%, substitute 100%. (B) Section 1.4(c): delete the section, substitute: (c) nbn will pay the Connection Rebate (if any) by applying it to Customer s invoice in accordance with section of the WBA Operations Manual. (C) Section 1.4(d): delete the section, substitute: (d) nbn will only pay a Connection Rebate if: Customer has submitted the Customer Forecast that was due by the start of the month before the relevant month; and the forecast contained in the Customer Forecast was provided by the Customer in good faith. (D) Insert a new section 1.4(f) as follows: (f) Customer must take reasonable steps to ensure that Affected End Users receive (in monetary or other form) a fair value benefit of any Connection Rebate paid to Customer. (iii) Section 2 is amended as follows: (A) Delete the first sentence in the note immediately preceding the section, substitute: Section 2 sets out the Service Levels, Performance Objectives and Missed Connection Appointment Rebates that nbn offers for End User Connection Appointments and Professional Splitter Installation Appointments. (B) Insert a new section 2.4 as follows: 5

6 2.4 Missed Connection Appointment Rebate (a) (b) A Missed Connection Appointment Rebate may be payable in relation to Actual Appointments to attend a Premises for End User Connections (including Accelerated Connections and Priority Assistance Connections) and Professional Splitter Installations made by Customer and confirmed by nbn. Missed Connection Appointment Rebates under section 2.4(a) (if any) are calculated in accordance with the following formula: Missed Connection Appointment Rebate = Credit Instances $25 Where: Credit Instances means the total number of Actual Appointments to attend a Premises for End User Connections (including Accelerated Connections and Priority Assistance Connections) and Professional Splitter Installations made by Customer and confirmed by nbn which were not performed in accordance with the applicable Service Level in the relevant month. (c) If nbn is liable to Customer for CSG Compensation or under section 118A of the TCPSS Act in connection with any Actual Appointment, nbn may: reduce the amount of any future Missed Connection Appointment Rebates that are or become payable to Customer; and by giving notice, require Customer to repay any previous Missed Connection Appointment Rebates paid to Customer, up to an amount equal to the total of nbn s liability to Customer for CSG Compensation and under section 118A of the TCPSS Act in connection with the Actual Appointment. (d) (e) nbn will pay the Missed Connection Appointment Rebate (if any) by applying it to Customer s invoice in accordance with section of the WBA Operations Manual. Customer must take reasonable steps to ensure that Affected End Users receive (in monetary or other form) a fair value benefit of any Missed Connection Appointment Rebate paid to Customer. (iv) Section 8.5 is amended as follows: (A) Section 8.5(b): delete 90%, substitute 100%. (B) Section 8.5(d): delete the section, substitute: (d) nbn will pay the Service Fault Rebate (if any) by applying it to Customer s invoice in accordance with section of the WBA Operations Manual. (C) Insert a new section 8.5(f) as follows: 6

7 (f) Customer must take reasonable steps to ensure that Affected End Users receive (in monetary or other form) a fair value benefit of any Service Fault Rebate paid to Customer. (v) (vi) Section 10 is amended as follows: The note immediately preceding section 10 is amended as follows: (A) Delete the first sentence in the note immediately preceding the section, substitute: Section 10 sets out the Service Levels, Performance Objectives and Missed Trouble Ticket Appointment Rebates that nbn offers for End User Fault rectification Appointments. (B) Insert a new section 10.4 as follows: 10.4 Missed Trouble Ticket Appointment Rebate (a) (b) A Missed Trouble Ticket Appointment Rebate may be payable in relation to Actual Trouble Ticket Appointments to attend a Premises for rectification of End User Faults (including Enhanced Faults and Priority Assistance Faults) made by Customer and confirmed by nbn. Missed Trouble Ticket Appointment Rebates under section 10.4(a) (if any) are calculated in accordance with the following formula: Missed Trouble Ticket Appointment Rebate = Credit Instances $25 Where: Credit Instances means the total number of Actual Trouble Ticket Appointments to attend a Premises for rectification of End User Faults (including Enhanced Faults and Priority Assistance Faults) made by Customer and confirmed by nbn which were not performed in accordance with the applicable Service Level in the relevant month. (c) If nbn is liable to Customer for CSG Compensation or under section 118A of the TCPSS Act in connection with any Actual Trouble Ticket Appointment, nbn may: reduce the amount of any future Missed Trouble Ticket Appointment Rebates that are or become payable to Customer; and by giving notice, require Customer to repay any previous Missed Trouble Ticket Appointment Rebates paid to Customer, up to an amount equal to the total of nbn s liability to Customer for CSG Compensation and under section 118A of the TCPSS Act in connection with the Actual Trouble Ticket Appointment. (d) nbn will pay the Missed Trouble Ticket Appointment Rebate (if any) by applying it to Customer s invoice in accordance with section of the WBA Operations Manual. 7

8 (e) Customer must take reasonable steps to ensure the Affected End Users receive (in monetary or other form) a fair value benefit of any Missed Trouble Ticket Appointment Rebate paid to Customer. (vii) Section 15 is amended as follows: (A) Section 15.3(a): delete on or about 20 Business Days, substitute by 10 Business Days. (B) Insert a new section 15.5 as follows: 15.5 Wireless performance reporting nbn will provide a report to Customer by 2 Business Days after the end of each week (Wireless Performance Report) which will contain: (a) if nbn supplies nbn Ethernet (Wireless) to Customer at any Premises in a Wireless Network cell that is a Priority Upgrade Cell: (iii) (iv) a list of all Wireless Network cells which, in the relevant week, were Priority Upgrade Cells; a list of nbn Location IDs for Premises at which nbn supplies nbn Ethernet (Wireless) to Customer which, in the relevant week, were in a Priority Upgrade Cell; a forecast of the month or months in which nbn plans Upgrades for each Wireless Network cell which, in the relevant week, was a Priority Upgrade Cell; and any action that may be required of Customer or End Users in relation to any planned Upgrades described in section 15.5(a)(iii); (b) a list of each Wireless Network cell in respect of which nbn supplies nbn Ethernet (Wireless) to Customer at any Premises, specifying whether that cell has an Average 30 Day Downlink Throughput of: (iii) less than 3 Mbps; 3 Mbps to less than 6 Mbps; or above 6 Mbps; and (c) a forecast of the month during the next six months (if any) in which each Wireless Network cell is expected to become a Priority Upgrade Cell. (viii) Section 16.1(b) is amended as follows: Delete the section, substitute: provide a corrective action plan under section 16.1(a) by or before the time that nbn provides a corresponding Performance Report to Customer under section 15.3, except where the Performance Report is to be provided by or before 10 Business Days after the end of the month, in which case, the corrective action plan must be provided by or before 20 Business Days after the end of the month. (ix) Section 20.1(d) is amended as follows: 8

9 Delete a matter beyond nbn s control, substitute any Force Majeure Event. (x) Section 21(c) is amended as follows: Delete the section, substitute: nbn s ability to perform in accordance with the Service Level, Performance Objective or Operational Target is adversely affected by an Excluded Event or a Customer Event. (c) The Dictionary document forming part of Customer s WBA is amended as follows: Insert the following definition for Affected End User : Affected End User means, in respect of a Rebate, a Contracted End User adversely affected by an Activity not being performed in accordance with the relevant Service Level in respect of which the Rebate applies. Insert the following definition for Average 30 Day Downlink Throughput : Average 30 Day Downlink Throughput means, in respect of a Wireless Network cell in a week, the average downlink throughput performance of active nbn Ethernet (Wireless) Ordered Products in the busiest hour of that cell in each of the 30 days ending at the end of that week (excluding non-representative performance such as the performance of Ordered Products subject to a Service Reduction). (iii) Delete the definition of Commercial Rebate, substitute: Commercial Rebate means a Connection Rebate, Missed Connection Appointment Rebate, Service Fault Rebate, Enhanced Fault Rectification Rebate, Missed Trouble Ticket Appointment Rebate or any other Rebate specified by nbn as a "Commercial Rebate" from time to time. (iv) In the definition of CSG Auditor : Delete 15.4, substitute (v) In the definition of CSG Compensation : Delete 15, substitute 17. (vi) Insert the following definition for Missed Connection Appointment Rebate : Missed Connection Appointment Rebate means the rebate in respect of nbn's failure to achieve Service Levels for specified Actual Appointments calculated in accordance with section 2.4 of the nbn Ethernet Service Levels Schedule. (vii) Insert the following definition for Missed Trouble Ticket Appointment Rebate : Missed Trouble Ticket Appointment Rebate means the rebate in respect of nbn's failure to achieve Service Levels for Actual Trouble Ticket Appointments calculated in accordance with section 10.4 of the nbn Ethernet Service Levels Schedule. (viii) Insert the following definition for Priority Upgrade Cell : Priority Upgrade Cell means a Wireless Network cell with an Average 30 Day Downlink Throughput of less than 6Mbps. (ix) Insert the following definition for Rebate Automation Date : Rebate Automation Date means the date notified by nbn, from which specified Commercial Rebates will be applied to the invoice issued by nbn to Customer in respect of the Billing Period commencing in the first month after the month to which the Commercial Rebate relates. 9

10 (x) Insert the following definition for Wireless Performance Report : Wireless Performance Report has the meaning given to that term in section 15.5 of the nbn Ethernet Service Levels Schedule. (d) The WBA Operations Manual document that forms part of Customer s WBA is amended as follows: Section 7.5 is amended as follows: Delete the section up to but not including subsection onwards, substitute: Available rebates and credits include: 50 Kbps CVC Credit CVC Transitional Pricing Credit CSG Compensation Connection Rebate Missed Connection Appointment Rebate Enhanced Fault Rectification Rebate First Battery Credit Satellite Test Service Service Fault Rebate Missed Trouble Ticket Appointment Rebate Any other Credits or Rebates notified in accordance with the Discounts, Credits and Rebates List. Section is amended as follows: Delete nbn applies the relevant Credits or Rebates (that nbn determines are applicable in accordance with the WBA) to your organisation s invoices for the relevant Billing Period, substitute nbn applies the relevant Credits or Rebates (that nbn determines are applicable in accordance with the WBA) to your organisation s invoices for the relevant Billing Period or later where permitted under this section 7.5. (iii) Insert a new section as follows: Automatic payment of Commercial Rebates nbn will apply Connection Rebates, Missed Connection Appointment Rebates, Service Fault Rebates and Missed Trouble Ticket Appointment Rebates (that are applicable in accordance with the WBA) as follows: Billing Period to which the Commercial Rebate relates Before the Rebate Automation Date On and after the Rebate Automation Date When the Commercial Rebate is applied To an invoice issued by nbn to your organisation in respect of a Billing Period commencing after the month to which the Commercial Rebate relates To the invoice issued by nbn to your organisation in respect of the Billing Period commencing 15 Business Days after the month to which the Commercial Rebate relates 10

11 Note: Your organisation may raise a Billing Enquiry or Billing Dispute in respect of any Commercial Rebate it considers to be payable under this section