Tier-two ISPs sign final NBN agreement

Gain liability exemptions.

Primus, iiNet and Internode today agreed to sign NBN Co's final wholesale broadband agreement after negotiating last-minute concessions around legal liability with the network operator.

Telstra is expected to sign the agreement as early as tomorrow too, as service providers become more comfortable with re-worded clauses surrounding force majeure events and customer liability in event of a loss by end-users.

The agreements from iiNet and Internode mark a significant shift in the continuing battle between NBN Co, the competition regulator and service providers.

At the end of last year, only just seven of the "over 30" ISPs with NBN relationships had moved from trial arrangements to a final wholesale broadband agreement (WBA).

Some 21 have now signed the agreement, up from 12 earlier this week, with large ISPs now agreeing to enter the fray.

Optus confirmed it had not yet signed the agreement and that there was "nothing new" in its negotiations with the wholesaler.

The final agreement had undergone five major iterations and multiple amendments since first released for consultation last year.

The latest, distributed to service providers late today and sighted by iTnews, make significant changes to Clause E3.5, relating to "claims by downstream customers, end users and other third parties".

The clause is much tighter than that included in the final WBA released publicly in November [pdf], including additional liability for NBN Co if it or its partners are found to have breached the WBA.

Under the amended contract, NBN Co also attracts additional responsibility to notify service providers of any losses "as soon as is reasonably practicable of a claim". Service providers are afforded the option to negotiate any financial settlements as a result of the claim.

The amended contract also shortens the length of a force majeure event for customer losses to five days, from the initial 20.

iiNet regulatory manager Steve Dalby told iTnews the amendments resolved "key sticking points" for the ISP.

"Our product development, testing and marketing will continue uninterrupted, which is a very positive outcome for NBN Co, iiNet and, most importantly, our new NBN customers," he said.

However, the amendments are small when compared to some of the major changes made by NBN Co to earlier versions of the WBA.

NBN Co has previously conceded to producing a one-year final contract, rather than the proposed five, after concerns it would override competitive constraints from the Australian Competition and Consumer Commission.

Today's move also comes in the nick of time for NBN Co, which had been forced to resort to "transition arrangements" between the trial agreement, which expires today, and the final WBA.

Under the arrangements, NBN Co would continue servicing existing customers signed by trial providers on the network and allow connections to greenfield fibre customers until the end of the month.