|
Internet Industry Codes of Practice
IIA Approved Filter Products and Service
PARTIES
1.1 Modulux Pty Ltd (A.B.N. 72 039 560 683) having its registered
office at 60 Magellan Street Lismore and is the registered
proprietor of the Business Name NORNET.
1.2 And the subscriber.
BACKGROUND
2.1 "Nornet" carries on the business of an Internet Service
Provider ("the Service") providing subscribers with electronic access
to NORNETS network and related services including email, to Customers
within Northern NSW.
2.2 The Subscriber wishes to become a subscriber to NORNETS
System and Services upon the terms of this Agreement.
DEFINITIONS AND INTERPRETATION
3.1 In this Agreement the expressions defined below has the
following meanings:
3.1.1 "Agreement" includes any
schedule or annexure to the Agreement;
3.1.2 "Commencement Date" means the date from which the Subscriber
first has access to the System;
3.1.3 "NORNET Network" means NORNETS Points of Presence (POP's)
and information services Email, News Groups, or NORNETS activities;
3.1.4 "Data" means publicly available data, programs, information
and other works and material available to subscribers via the
System;
3.1.5 "Database" means the databases available to subscribers
via the System and includes a NORNET Database;
3.1.6 "dealing" means any act or thing in relation to Data and
includes the following acts, namely to publish, sell, copy, reproduce,
redistribute, adapt, publicly perform, transmit to the subscribers of a diffusion service, corrupt, distort, mutilate, modify or
derogate from any part of the Data, whether in human or machine
readable form;
3.1.7 "E-Mail Material" means data electronically transmitted
in the form of a personal message using the electronic mail part
of the System.
3.1.8 "Equipment" means the Subscriber's equipment used to access
the System and use the Services;
3.1.9 "Hours" means a period of sixty minutes and the equivalent
period of time, which is calculated as specified in Schedule B;
3.1.10 "ID Code" means an identification code (also known as "username")
to obtain access to the System and to use the Services supplied to the Subscriber pursuant
to clause 5.1.2;
3.1.11 N/A
3.1.12 "Services" means the services described in Section 2.1;
3.1.13 "Software" means the Subscriber's software used to access
the System and use the Services;
3.1.14 "SPAM" means unsolicited emails
3.1.14 "System" means NORNETS network equipment and programs
utilised to provide the Services to Subscribers;
3.1.15 "the Subscriber" means the party referred to in clause
1.2;
3.1.16 "Subscription Period" means the period of this Agreement;
3.1.17 "User" means a person who accesses the System or uses the
Services using the Subscriber's ID Code;
DURATION
4.1 This Agreement and access to the System and Services
will commence on the first day NORNET allows the Subscriber access
to the System and will continue until the account is terminated or the client stops paying the account.
ACCEPTANCE OF SUBSCRIBER'S APPLICATION
5.1 Upon acceptance by NORNET of the Subscriber's application;
the Subscriber shall be recorded by NORNET as a subscriber to the
System and Services and:
5.1.1 N/A
5.1.2 NORNET shall supply the Subscriber with an identification
code to obtain access
to the System and to use the Service; and
5.1.3 subject to this Agreement, for as long as the Subscriber
promptly pays all amounts required by this Agreement to be paid,
NORNET shall allow the Subscriber access to the System and the
Services, on the terms of this Agreement.
APPLICATION OF SPECIAL CONDITIONS
6.1 Any Special Conditions which may apply to any particular
type of Database access or Service offered by NORNET to the Subscriber
from time to time shall be contained in a schedule which is attached
or may be later adopted as a schedule to this Agreement. Any Special
Condition inconsistent with these Terms shall override these Terms
to the extent of the inconsistency.
THE DATA
7.1 Additional or varied Data and Databases may from time
to time be made available on the System by NORNET. No consent of
the Subscriber or notice of any additional or varied Data or Database
becoming available shall be required but NORNET may provide that
information as a service.
7.2 NORNET may amend particular programs, information and
facilities from time to time at its discretion even if that amendment
results in a loss of functionality of the System, a reduction in
the Services or a reduction in the Data or Databases available on
the System.
AVAILABILITY OF SYSTEM
8.1 Subject to alteration of hours of operation from time
to time and to any downtime of the System (whether for maintenance
or otherwise), NORNET must use all reasonable endeavors to ensure
that the System and Services will, (subject to other terms of this
Agreement) be available at all times that this Agreement is in force.
8.2 The Subscriber acknowledges the System and/or Services
might not be available for access:
8.2.1 during any equipment or
services malfunction or breakdown, electrical short circuit, power
failure, telecommunications failure or fault, industrial dispute
or other cause beyond the control of NORNET; or
8.2.2 during any period of shutdown, Database unavailability or
inability of the System to provide access, whether or not as a
result of a cause within the control of NORNET.
8.3 The Subscriber acknowledges
that the Databases, the System and the Services may be discontinued
at any time by NORNET without notice to the Subscriber if:
8.3.1 NORNETS license or authority
to use a Database or provide the Services is withdrawn, restricted
or altered in such a way that NORNET considers it undesirable
to continue to provide the Database or the Services to subscribers;
8.3.2 any claim is made that the inclusion of information, data,
program, code or material in a Database infringes the rights of
a third party, or exposes NORNET to liability to any third party or to liability for prosecution for an offence or liability to
a statutory penalty; or
8.3.3 NORNET is otherwise obliged to discontinue provision of
the information.
8.4 No compensation or other amount of any kind will be payable
by NORNET in respect of any loss of access or functionality referred
to in this clause 8.
ACCEPTABLE USER POLICY
9.1 The Subscriber agrees to abide by Nornets Acceptable
Usage Policy as outlined on our web site at http://www.nor.com.au/?page=AUP
9.2 The Subscriber agrees
to abide by Nornets Web Page Guidelines as outlined on our web site
at http://www.nor.com.au/?page=WHP
COMPLIANCE WITH LAWS
10.1 The Subscriber acknowledges that use of the Data, Databases,
System and Services may be subject to certain legal regulations,
conditions and restrictions. The Subscriber must ascertain and comply
with such regulations, conditions or restrictions. Unlawfully accessing
or damaging data in a computer is not only a breach of the Acceptable
Use Policy - it is also a criminal offence punishable by fine, imprisonment
or both.
10.2 Commonwealth legislation allows the Australian Broadcasting Authority
('ABA') to direct Nornet to remove certain prohibited Internet content
from its servers or prevent users from accessing certain Internet
content. Nornet may take any steps necessary in order to ensure
compliance with any relevant industry code of practice, notification
or direction from the ABA, including removing any content (including
part or all of a website) from its servers, closing your account
or restricting access to a particular website. Nornet may take these
steps immediately and without notice to you. For detail see our
Nornet Web Hosting Terms of Service http://www.nor.com.au/?page=WHP
10.3 Nornet will investigate
any misuse of the service and may involve police or other law enforcement
agencies in doing so. Nornet may recover from you any costs of investigating
your misuse of the Service. If your use of the service causes losses
to Nornet or other users, Nornet may require you to pay compensation.
SUBSCRIBER LIABLE FOR ALL USAGE
11.1 The Subscriber is liable for the acts of any User and
the breach of the terms of this Agreement by a User will be deemed
to be a breach by the Subscriber entitling NORNET to any of the
rights and remedies that would apply if the Subscriber had committed
the breach itself.
CONDITIONS OF USE OF SUBSCRIBER'S EQUIPMENT AND SOFTWARE FOR
ACCESS OF THE SYSTEM
12.1 NORNET may at any time require the Subscriber to disconnect
its Equipment or any part or parts thereof from accessing and using
the System or the Services if, in the opinion of NORNET, such Equipment
is or has been the cause or is likely to be the cause of failures,
interruptions, errors or defects in the System or the Services.
If the Subscriber is required to disconnect, NORNET will as soon
as possible, advise the Subscriber of the changes required to be
made to the Equipment to enable the Subscriber to access the System
and Services.
12.2 The Subscriber must ensure that if such Equipment or
Software is used for any purpose other than accessing and using
the Data in accordance with the provisions of this Agreement, it
is used in such a manner so as not to corrupt the System or any
Data or any other software which may be used by NORNET.
12.3 The Subscriber must observe the Nornet Acceptable Usage
Policy. For detail see http://www.nor.com.au/?page=AUP
12.4 The Subscriber must maintain all its Equipment and Software.
12.5 The Subscriber must not do any act or thing in relation
to Data which would infringe any copyright or moral rights of NORNET
or any other person except:
12.5.1 where the dealing is permitted
by the Copyright Act 1968 and any other applicable laws and by
any terms stipulated by the provider of the Data; and
12.5.2 a copying or reproduction of information from a Database
or the NORNET Database subject to the following notation and the
year is written on each page of the copy or reproduction: "© NORNET
PTY LTD ALL RIGHTS RESERVED".
12.6 You must not resell
or attempt to re-sell the service, or transfer your account to another
person without Nornets written consent.
12.7 Nornet will maintain your password and email address
for a period of 90 days from the expiry of the hours purchased or
the validity period. Beyond that period Nornet reserves the right
to delete your email & close the account without notice to you.
12.8 If a subscriber does
not use their dialup account, a total of four (4) hours per month
will be deducted from their credited hurs until the account is disabled
until such time as the account is either reactivated with Nornet
or expiry of the 90 day period as described in section 12.7 of this
agreement.
12.9 To ensure security on the network, customers can only
access their e-mail address, provided you are dialed into the Nornet
service however you can collect your e-mails using our 'WebMail'
system from anywhere in the world without any restrictions.
SUBSCRIPTION CHARGES
13.1 The Subscriber must pay;
(a) all User Charges incurred by use of the Subscriber's ID Code,
Equipment or Software irrespective of whether that use is authorised
or unauthorised.
(b) Any applicable taxes on the charges (for example the goods &
services tax (GST)
13.2 Nornet may in its absolute discretion (even during a
fixed term) change the charges and any amounts payable by the Subscriber
to include an amount in respect of GST. Any changes will be notified
to the Subscriber, however in any event, the Customer will be required
to pay the changed charges and any other amounts from the date such
GST is applicable.
Where charges are paid in advance and the period over which such
charges are paid include post 30 June, 2000 then that portion of
the charges relating to post 30 June, 2000 will be calculated and
billed to include GST unless indicated otherwise.
13.3 The subscriber must pay the amount due to Nornet as
advised in the booking statement issued at the end of each month
and within 14 days of the date of such statement. Any amounts outstanding
as at the due date will bear interest at a rate equal to the Commonwealth
Bank Corporate Overdraft Reference Rate as most recently published
before that date.
13.4 No reduction or refund
of any amount payable under clause 13.1 shall apply if this Agreement
terminates under clause 19.
13.5 The Subscriber must
pay to NORNET the User Charges and Subscription Fees specified in
its Schedule of Account Services and Fees as varied from time to
time by NORNET giving to the Subscriber 30 days prior written notice.
INTELLECTUAL PROPERTY RIGHTS
14.1 The Subscriber acknowledges that it does not acquire
any title to or interest in any copyright, trade mark, trade name,
patent or other intellectual property rightly (wherever existing) used or embodied in or in connection with the System,
the Services, any Data or a Database.
14.2 The Subscriber must not during or at any time after
the expiry or termination of this Agreement question or dispute
any right, title or interest asserted by NORNET in relation to the
System, a NORNET Database, any Data on a NORNET Database
or other electronic form of information or any intellectual property rightly associated with any of the foregoing or with the Services.
14.3 The Subscriber must make and rely upon their own enquiries
concerning the existence and scope of any intellectual property
rights referred to in this clause 14 and must be responsible for
obtaining any consent, approval, license or agreement of the holders
of any intellectual property rights required to enable the Subscriber
to deal with any relevant Data or to do any act or thing in relation
to those intellectual property rights.
SUBSCRIBER DUTIES
15.1 The Subscriber must notify NORNET immediately upon the
Subscriber becoming aware of any:
15.1.1 infringement of any third
party's intellectual property rights as a result of information
being made available on a Database or by use of the System or
Services;
15.1.2 the existence of any data, code, program or other material
of the kind referred to in clause 10.2; or
15.1.3 any use of the System or Software (by the Subscriber or
any other person), which may infringe clause 10.3.
15.2 The Subscriber must
keep the Subscriber's password secret at all times. NORNET may from
time to time need to change the Subscriber's password by notice to the Subscriber.
DISCLAIMER - ACCURACY
16.1 The Subscriber acknowledges that all of the information, Data,
programs and material accessed from a Database other than a NORNET
Database and much of the information, Data, programs and material
accessed from a NORNET Database is not generated or checked by NORNET
and that NORNET therefore makes no representation concerning the
completeness, truth or accuracy thereof or its suitability for any
purpose contemplated by the Subscriber. The Subscriber must make
and rely on their own independent investigation of the truth, completeness,
accuracy and suitability thereof.
16.2 The Subscriber acknowledges that information entered
by the Subscriber through the System may be accessed by other subscribers
to the System and Services and third parties. The Subscriber must
not enter on the System or any Database any information which is
confidential to a person other than the Subscriber except with the
prior authorisation of the person to whom the information is confidential.
LIABILITY
17.1 Subject to clause 17.2 NORNET shall not be liable in
contract, tort or otherwise for any liability or consequential loss
or damage sustained by the Subscriber directly or indirectly making
use of any Data, a Database, the System or the Services.
17.2 Any liability of NORNET of the kind referred to in clause
17.1 which, by law, is unable to be excluded is limited to the minimum
sum permitted by law. Where NORNETS liability is in respect of
a breach of a condition or warranty to which Section 68A(l) of the
Trade Practices Act 1975 (Cth) applies, NORNETS liability shall
be limited to the amounts described in that section.
17.3 The Subscriber hereby fully releases and discharges
NORNET from all liability which may arise in respect of any material
on a Database or Data which is accessed through the System which
is in any way defamatory. This release and discharge applies in
respect of each jurisdiction in which the defamatory material is
published.
17.4 The Subscriber hereby fully releases and discharges
NORNET from all liability which may arise in respect of any dealing
by any person (including NORNET) with Data in which the Subscriber
holds any copyright or other intellectual property right.
17.5 The Subscriber represents to NORNET that the Subscriber
is not relying on the System or Services having any particular performance
characteristics, response times or availability.
INDEMNITY
18.1 The Subscriber indemnifies NORNET against all claims
whatsoever sustained, incurred or paid by NORNET directly or indirectly
(whether or not as a result of NORNETS negligence in whole or part)
in respect of:
18.1.1 the access to or use by
the Subscriber of any Data, a Database, the System or the Services;
18.1.2 any information, data or material obtained, accessed or
published by the Subscriber in whole or in part from, or by use
of any Data, a Database, the System or any Service;
18.1.3 any breach by the Subscriber of any provision of this Agreement
or any schedule; or
18.1.4 any omission or failure to perform by the Subscriber under the terms of this Agreement.
TERMINATION
19.1 Notwithstanding any other provisions of this Agreement,
NORNET in addition to any rights it may have under law or statute,
may forthwith terminate this Agreement by written notice or without
notice to the Subscriber if any of the following events shall occur;
19.1.1 if the Subscriber breaches
any requirement of clauses 9 or 10;
19.1.2 if the Subscriber commits any other breach of the terms
of this Agreement including the terms of any schedule and the
Subscriber fails to remedy such breach within thirty (30) days
after receiving written notice from NORNET requiring it so to
do;
19.1.3 if NORNET in its sole discretion determines the Subscriber
or any User has used the Databases, System or Services in an unacceptable
manner; or
19.1.4 if the Subscriber becomes, threatens or resolves to become
or is in jeopardy of becoming subject to any form of insolvency
administration ceases or threatens to cease conducting business
in the normal manner, being a partnership, is dissolved or being
a natural person, dies.
19.1.5 fails to pay when due any sum payable under this agreement
19.1.6 fails to abide by the Nornet Acceptable User Policy as
published at http://www.nor.com.au/?page=AUP
19.2 Either party may terminate
this Agreement at any time by giving at least 30 days notice in
writing to the other party.
19.3 Termination of this Agreement shall be without prejudice
to any accrued rights of either party and shall not affect obligations
which are expressed and not be affected by expiry or termination
hereof.
19.4 Nornet reserves the right to suspend an account if the
subscriber fails to comply with any agreement (including failure
to pay charges due) until the breach (if capable of remedy) is remedied,
or does, or allows to be done, anything that in Nornets opinion
may have the affect of jeopardising the operation of the service.
19.5 Nornet under Item 4.1,
allows the Subscriber access to the System and will continue
until such time as the users hours are used or expire under Item 12.8 or users ceased to pay to continue their monthly plan.
Refunds will only be provided where Nornet for whatever reason and
without prejudice is unable to supply a reasonable quality of service,
and reserves the right to levy a $25 administrative fee on any accounts
closed.
NOTICES
20.1 Any notice or other communication in connection with
this Agreement is taken to have been duly given when made in writing
by a party or a representative of either party and delivered
or sent by post, electronic mail or facsimile to the party to which
such notice or communication is intended to be given, at the addresses
set out on the first page of this Agreement or to such other address
or facsimile number as may from time to time be notified in writing
by one party to the others for the purposes of this clause. A notice sent to a Subscriber by electronic mail or facsimile shall be deemed
to be in writing.
ASSIGNMENT
21.1 The Subscriber must not, without the prior written consent
of NORNET, assign or transfer this Agreement or any of its rights
under this Agreement to any other person, firm or company. NORNET
may freely assign all or any of its rights under this Agreement
to any other person but must notify the Subscriber of the assignment.
WAIVER
22.1 Failure or neglect by NORNET to enforce at any time
any of the provisions of this Agreement shall not be construed nor
shall be deemed to be a waiver of Nornets rights hereunder nor
in any way affect the validity of the whole or any part of this
Agreement nor prejudice Nornets rights to take subsequent action.
ENTIRE AGREEMENT AND AMENDMENTS
23.1 This Agreement supersedes any arrangements, understandings,
promises or agreements made or existing between the parties prior
to the signing of this Agreement, which constitutes the entire understanding
between the parties. Except as otherwise provided herein, no addition,
amendment or modification of this Agreement shall be effective unless
it is in writing on behalf of each party.
23.2 The Subscriber acknowledges the System may include an
"on-screen" warning during the log-in stage which contains certain
disclaimers and limitations on any liability NORNET may have. That
on-screen warning shall not derogate from this Agreement.
SEVERABILITY
24.1 If any or any part of the terms contained in this Agreement
or any schedule attached or adopted as part of this Agreement be
determined invalid, unlawful or unenforceable to any extent such
term, condition or provision shall be severed from the remaining
terms, conditions and provisions which will continue to be valid and enforceable to the fullest extent permitted by law.
PROPER LAW
25.1 This Agreement shall be governed and construed in all
respects in accordance with the laws of New South Wales and the
parties agree to submit to the non-exclusive jurisdiction of the
Courts of New South Wales.
25.2 If the Subscriber or any of the Subscriber's property
is located in a jurisdiction other than New South Wales (whether in Australia or elsewhere), the parties agree that a binding order
of a court in New South Wales may be enforced in that other jurisdiction
and the parties must consent to any application to a court or tribunal
in another jurisdiction for enforcement of the order or its execution
against the Subscriber and the Subscriber's property (including
any application for a restraining order or an order for specific
performance) and hereby waive all objections and defences to such
an order or execution being made.
25.3 The parties also agree that this Agreement, any order
or judgement of a court of New South Wales and all things and documents
discovered or put into evidence for the purposes of obtaining such
a judgement or order and all admissions made by a party in respect
of an action, suit or application for the judgement or order may
be put into evidence in any proceedings (whether by way of a new
dispute or re-litigation or otherwise) between the parties conducted
in a jurisdiction other than New South Wales (whether in Australia
or elsewhere) or in an application by a party for enforcement or
execution of such a judgement or order.
|
