These are the minimum terms a Customer must accept and agree to at log on from a Location prior to commencement of any Session. Notes: We/our is a reference to MyPort at the Location. You/Your means the Customer.
1. PROVISION OF SERVICE
1.1 We will use all reasonable efforts to ensure the continuity and efficiency of the Service. If, due to our negligent act or omission you are unable to access the Service during the term of these Terms, we will at our sole discretion issue you with an amount of credit equal to the extent in time that you could not access the Service.2. LOG-IN INFORMATION
2.1 You are responsible for maintaining the secrecy and confidentiality of your Identification and Log-In information. You will not disclose to any other person, corporation, entity or organisation any Identification or Log-In information, whether in use or not. 2.2 You are liable for the payment of all User Charges resulting from access of the Service through use of your Identification or Log-In information, whether authorised by you or not, except to the extent such access is as a result of our negligent acts or omissions.3. YOUR OBLIGATIONS
3.1 You covenant and agree that: (a) you shall, provide your own Hardware necessary to access the Service; (b) pay all charges associated with your use of the Service; (c) if required to disconnect your Hardware or any part or parts of your Hardware from the Service if, in our reasonable opinion such Hardware is or has been the cause or is likely to be the cause of failures, interruptions, errors or defects in the Service; (d) you shall not use your Hardware (when accessing the Service) in a manner inconsistent with these Terms; (e) warrant that in accessing and using the Service you will only use software and hardware that you are legally entitled to use; (f) you are responsible for preparing and maintaining sufficient back-up files and data storage capacity for all your data requirements, including electronic messages; (g) we have no responsibility to provide training in the use or access of the Service pursuant to these Terms; (h) you are not relying on the Service having any particular performance characteristics, response times or availability.4. USE OF THE SERVICE
4.1 You shall at all times comply with all reasonable directions that we may issue in our discretion from time to time with respect to the use of the Service. 4.2 You shall not engage in or permit disruptive activities which may include, but are not limited to, the circulation of any unsolicited publicity or advertising material, propagation of computer worms and others viruses, use the Service to gain unauthorised access to any other computer system or network, the sending of harassing, obscene, offensive or threatening electronic mail, forgery of electronic mail and the placement or transmission or storage of any defamatory or pornographic material on the Internet. 4.3 You shall not knowingly engage in, nor permit through the inter-connection of any device to the Service: (a) use UCE as a means of advertising on the Internet; (b) being the source, intermediary or destination electronic mail or Internet or other address involved in the transmission of SPAM, multi-level marketing schemes, chain letters, mail-bombs or similar things; (c) being listed in any spammed message, either as the source, intermediary or reply-to-address; or (d) delivering harassing electronic mail, whether through language, art form, repetition, frequency or size of electronic mail. 4.4 You will not knowingly access, nor permit any other party to access the Service for any purpose or activity of an illegal or fraudulent nature. 4.5 You will not use the Service to contribute to or aid the commission of a crime or to infringe the rights of a third party. 4.6 If we consider on reasonable grounds that you have breached your obligations in this clause we may, (and without prejudice to any other Right, Claim or action it may have against you, refuse your access to the Service. 4.7 You must comply with all obligations that may be imposed upon you in relation to, without limitation, the collection and use of personal information as provided for in the Privacy Amendment (Private Sector) Act 2000 (Cwlth).5. VARYING A SERVICE
5.1 We may propose variations to these Terms by giving you written notice of those variations. 5.2 When giving you notice under clause 5.1, we will also inform you of the method by which these Terms are to be varied which may include: (a) signing or accepting a variation agreement, in which case the variation will become effective from the execution acceptance date of that document; or (b) automatically on expiry of seven (7) days from the date of a notified change or variation.6. THE DATA
6.1 We reserve the Right to restrict access or make unavailable any Data or Database previously accessed by you on the Service or the Internet. 6.2 We reserve the Right to amend, repair, vary particular programs, information and facilities from time to time at our discretion even if that amendment, repair or variation results in a variation, amendment or limitation of the functionality of the Service, a reduction in the Service or a reduction in the availability of Data or Databases provided by the Service. Provided however that we shall use our best endeavours to avoid but shall not be liable for any reduction in the quality, speed, or performance of the Service as a result of such repair, amendment or variation. 6.3 You shall not knowingly do any act or thing in relation to Data which would infringe any parties copyright or intellectual property nor modify, delete or corrupt the Data (with the exception of deleting your electronic mail) or otherwise tamper with any Data or Database. 6.4 We make no representation concerning the completeness, truth or accuracy of any of the information, Data, programs and material accessed by you from any Database and we make no representation that any of the information, Data, programs and material accessed from any Databases is suitable for any purpose contemplated by you.7. PROTECTION OF INTELLECTUAL PROPERTY
7.1 You will not knowingly reproduce, distribute, reverse engineer, decompile, transmit, publish, copy, transfer or commercially exploit any information, data, images or software programs accessed through or received from the Service that would infringe the intellectual property Rights of any other person. 7.2 You shall be responsible for obtaining any consent, approval or license from the holders of any intellectual property Rights required to enable you to deal with any relevant Data or to do any act or thing in relation to those intellectual property Rights.8. SERVICE AVAILABILITY
8.1 We shall use all reasonable endeavours to provide the Service on a continuous basis during normal business hours provided however that we may without notice suspend all or part of the Service immediately, including where: (a) there is a malfunction or breakdown of any of our equipment or if we are required to undertake the repair, maintenance or service of any part of the Service; (b) there is an electrical storm, fire, tempest, electrical short circuit, power failure, telecommunications failure or fault; or (c) there is an industrial dispute, or lockout; (d) it is reasonably required to reduce or prevent fraud or interference within the Service; (e) we are required to comply with an order, instruction or request of government agency, regulatory authority, the ABA, emergency services or other competent authority; (f) there is a failure by you to pay any charges (including the User Charges) due to us; or (g) there is any act of God, war, government action, or any other circumstances beyond our reasonable control occurs. 8.2 If our license or authority to provide the Service is withdrawn, restricted or altered in such a way that we consider it is not commercially viable or impractical or impossible to continue to provide the Service to you or 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 us to liability to any third party or to liability for prosecution for an offence or liability to a statutory penalty, we may elect to discontinue your access to the Service provided however we will endeavour to provide you with prior written notice, where it is reasonable and practicable in our opinion to do so. 8.3 We will use its reasonable endeavours to, except in an emergency situation, provide you with seven (7) days' notice of any scheduled maintenance of the Service and ensure that any scheduled maintenance is carried out between the hours of midnight and 7.00am. 8.4 You have no Claim against us in respect of any loss of access or functionality to the Service referred to in this clause, whether such Claim lies in contract, tort or otherwise, (including negligence) for any loss or damage howsoever arising.9. USER CHARGES
9.1 You agree to pay the specified and advertised User Charges for the Service. 9.2 You acknowledge and agree that any initial User Charge required by us to process your Application and provide you with initial access to the Service is non-refundable and payable in advance of us processing your Application. 9.3 We reserve the Right to charge an amount in addition to the initial User Charge which is required as a result of circumstances not reasonably anticipated by us or not disclosed by you prior to your access to the Service. 9.4 If you have not notified us in writing within seven (7) days of the invoice date of a dispute in relation to any User Charges in a relevant invoice, you shall be deemed to have accepted the invoice amount in full and must pay it in full by the due date. 9.5 The plans that we offer are NOT logon / logoff plans. This means that if you purchase 30 minutes at 9:00am, then at 9:30am your account will expire regardless of you been logged on or not. 9.6 When refilling your account, if your account has already expired then your previous data balance and expiry date will be replaced with that of the new plan. If your account has NOT expired then we will add on your data and time to your previous data balance and expiry date respectively. 9.7 Data only plans will not be able to be used on expired accounts. You must first renew your account by purchasing a time and data plan before you can purchase more data.10. OUR RIGHTS
10.1 We may, at any time: (a) intercept the Service, or the data being transmitted over that Service, for the purposes of complying with its legal obligations; (b) monitor your use of the Service, the messages sent or received through it, and the data stored on our servers for the purposes of complying with its legal obligations or the lawful exercise of its Right to enforce these Terms; (c) delete any transitory data stored on our servers which has been stored for more than thirty (30) days. 10.2 Commonwealth legislation allows the Australian Broadcasting Authority (ABA) to direct us to remove certain Internet content from its servers or prevent users from accessing certain Internet content. We may take any steps necessary in order to ensure compliance with any relevant industry code of practice, notification or direction from the ABA, including without limitation: (a) removing any content (including part or all of a web site) from its servers; (b) terminating the Service; or restricting access to a particular web-site. We may take these steps immediately without notice to you. You indemnify us for any costs reasonably incurred by us in order to ensure compliance with any relevant industry code of practice, notification or direction from the ABA in relation to content accessed or hosted by you using the Service. You must take all steps reasonably necessary to ensure that compliance.11. TERMINATION
11.1 Upon termination of these Terms for any reason, you shall immediately cease access to the Service. 11.2 Any termination of these Terms shall not affect any accrued rights or liabilities of either party, nor shall it effect any provision of these Terms which is expressly or by implication intended to continue in force after such termination.12. ASSIGNMENT
12.1 You shall not be entitled to assign your Rights or obligations under these Terms without our prior written consent. 12.2 We can assign our Rights and Obligations under these Terms by notice to you without your consent and upon such assignment shall have no further liability whatsoever to you pursuant to these Terms.13. NOT AN ESSENTIAL SERVICE
13.1 The parties acknowledge and agree that the performance of our obligations pursuant to these Terms does not constitute an "essential service" for the purposes of the law relating to insolvency. If we are found to be providing an essential service in a relevant sense are required by any person or court of competent jurisdiction to continue to abide by these obligations under these Terms despite you breaching these Terms then you acknowledge that the User Charges will be charged at our "Stand By Rates".14. THIRD PARTY CONTRACT LIABILITY
14.1 You shall at all times release and indemnify us and our servants and agents from and against any Claims and loss (including reasonable legal costs and expense) or liability whatsoever incurred by us with third parties in reliance on these Terms or to support our obligations under these Terms including but not limited to commitments made to third parties that exceed your requirements but which we have deemed in our absolute discretion were reasonably necessary or desirable in connection with these Terms.15. GENERAL
15.1 Except as otherwise expressly provided for in these Terms or otherwise agreed between us in writing, we shall not be liable to you in contract or in tort arising out of, or in connection with, or relating to, the use of the Service or any breach of the conditions of these Terms or any fact, matter or thing relating to the Service or error (whether negligent or a breach of contract or not) in information supplied to you before or after the date of your use of the Service. 15.2 We shall be under no liability to you in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred by you or which may arise directly or indirectly in respect of goods or services supplied to you pursuant to these Terms or in respect of a failure or omission on our part to comply with its obligations under these Terms. 15.3 We give no warranties to you, express or implied in respect of goods or services supplied to you pursuant to these Terms and all such warranties are excluded, subject to clause 15.4. 15.4 Where legislation implies in these Terms any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of all exercise of all liability under such condition of warranty, the condition or warranty shall be deemed to be included in these Terms. However, our liability for any breach of such condition or warranty shall be limited, at our option to one or more of the following: (a) if the breach relates to goods: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of such goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; and (b) if the breach relates to services: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again. 15.5 You shall at all times release and indemnify us and our servants and agents from and against any loss (including reasonable legal costs and expenses) or liability incurred by us arising from any Claim, demand, suite, action or proceeding by any person against us or our servants and agents where such loss or liability arose out of, in connection with, or in respect of: (a) your access and use of the Service; (b) any information, Data or material obtained, accessed or published by you in whole or in part; (c) any breach by you of any term or condition of these Terms; (d) any omission or failure by you to perform your Obligations contained in these Terms; (e) any material of a Database or Data which is accessed through the Service which is in any way defamatory. This release and discharge shall apply in respect of each jurisdiction in which the defamatory material is published from time to time; (f) any dealing (by any person, including us) with Data in which you hold any copyright or other intellectual property Right. 15.6 You acknowledge that you have relied upon your own judgment to evaluate the suitability of the Service for the purpose for which you require the Service. 15.7 By applying for these Services you authorise us to exchange with its Related Bodies Corporate and professional advisers the customer information provided by you in the Application and in the course of receiving the Service.16. DEFINITIONS
16.1 In these Terms unless the contrary intention appears:"Application" means the form you may be asked to complete with your information and particulars before Service access is granted; "Claim" means, in relation to a person, a claim, demand, remedy, suit, injury, damage, loss, cost, liability, action, proceeding, right of action, claim for compensation or reimbursement or liability incurred by or to be made or recovered by or against the person, however arising and whether ascertained or unascertained, or immediate, future or contingent;
"Commencement Date" means the date we allow you to access the Service and will continue for the Term subject to the terms of these Terms and the rights of early termination;
"Data" means but is not limited to publicly available data, programs, information and other works and materials accessible on the Internet Service including without limitation web sites and pages and web delivered software and other applications;
"Database" means those databases at various locations around the world which hold the Data;
"Hardware" means the hardware used to access the Service including any necessary software;
"Identification" means that identification provided to you by us as specified on the Application or any other identification that we provide to you in our discretion at any time;
"Internet" means the worldwide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;
"Internet Access Service Network" means the data communication network owned and operated by us and based on TCP/IP and other internet protocols which provide interconnection between the local area networks of various persons and entities and other networks within Australia and overseas;
"Internet Service" means the ability of a customer to seamlessly connect to the Internet using wireless broad band technology irrespective of the network of the WIP from any location;
"Log-In" means the password to be used in conjunction with the Identification when you access the Service. We reserve the right to ask You to reset or alter your Log-In in its discretion at any time;
"Resources" means those services that we make available to you, including but not limited to, electronic mail ("email"), newsgroups, information, databases and the Internet;
"Right" includes a legal, equitable, contractual, statutory or other right, power, authority, benefit, privilege, remedy, discretion or cause of action;
"Scale of Fees" means those fees varied from time to time as described as such in the Application Form;
"Service" means the service specified in the Application;
"SPAM" means any unsolicited message in the mediums of electronic mail ("email"), newsgroups or web hosting;
"Term" means the period of twelve (12) months from the date on which we notify you that it accepts the Application until the expiration of your Term or as selected in the Application subject to the Rights of early termination;
"User Charges" means the amount payable by you in accordance with the scale of fees accepted by you in the Application;
"You" or "Your" means and refers to the party named or identified as the applicant or customer in the Application to receive the Services.
