DEFINITIONS AND INTERPRETATION
Capitalised terms defined in this or in any other clause of this Acceptable Usage Policy bear their defined meanings wherever they appear in this Agreement, including the Schedules, unless the context requires otherwise.
PROHIBITED USES OF SERVICES
You must not use the Service, attempt to use the Service, or allow any of the Services provided by Emersion to be used in a way that is or could be deemed to be a Prohibited Use. Prohibited uses include but are not limited to the following:
Illegal Business Practices
Affecting the Rights of Others
Infringing Emersion’s or any other person’s rights including, but not limited to copyright, trademark, trade secret, patent or other property or other intellectual property rights or moral rights; or
constituting a misuse of Emersion or any other person’s confidential information; or
resulting in a breach of any obligation that You owe Emersion or any other person.
Interfering with Services and Systems
Interfering with the proper operation of the Services or any part of Emersion or a Third Party Supplier’s network or systems operated by Emersion or Third Party Supplier.
Newsgroups, Forums, Chat Rooms and Instant Messaging
Using the Services to contribute to, or participate in, a Newsgroup, Forum, Chat Room or Instant Messaging service in a way that has an adverse effect on the proper operation of those Newsgroups, Forums, Chat Rooms or Instant Messaging services.
Being in any way involved in any of the following:
Open Relay and Port Probing
Using the Services, attempting to use the Services or allowing a third party to use the Services to access or use, Emersion’s or anyone else’s systems, networks or data (including through Open Relay, Port Probing and the use of Packet Sniffers) without consent, regardless of whether or not such access or use has any adverse effect on the system, network or data.
Spoofing and Phishing
Using the Service, or attempting to use the Service in connection with any program (including a Virus, Trojan horse, Worm, Cancelbot, Time Bomb), that is designed to provide or allow any form of unauthorised control of, or result in an adverse effect on, a computer, a network or data whether the computer, network or data is Emersion’s or anyone else’s.
Using the Service, or attempting to use the Service for any activity (including a Denial of Service attack), that is designed to provide or allow any form of unauthorised control of, or result in an adverse effect on, a computer, a network or data whether the computer, network or data is Emersion’s or anyone else’s. Malicious activity includes:
Attempting to or allowing a third party to manipulate or bypass Emersion or Third Party Suppliers content usage limits, by any means including connecting multiple pieces of hardware or software to the Service.
3.1 You are responsible for ensuring that you do not store, transfer or cause to be transferred, reproduce or make available for distribution, through or on the Emersion Network or Service, any data where the storage, reproduction, transfer, or distribution of, that data is in contravention of the Copyright Act 1968 (Cth) or otherwise infringe any third party intellectual property rights (such as by using, copying or distributing data or software without the permission of the owner).
3.2 Emersion at its absolute discretion may delete any infringing Copyright Material stored by You if:
(a) Emersion is requested via a valid “take down notice” to delete the material; or
(b) You have not deleted infringing material within two (2) Calendar days of Emersion requesting that You do so.
3.3 If Emersion deletes any infringing material under the terms of this AUP it is not required to notify You or the sender of the deletion/s.
4.1 Where Emersion supplies You a Service that includes or is in itself an Email Service:
(a) Usage limits
Emersion will set limits on the size of emails sent to or by You, the period for which email messages can be stored and the maximum disk space that will be allotted on Emersions servers for Your Service. These limits are set out in the Service Schedule for Your chosen Service (Mail Quota).
(b) Deletion of Email
Emersion may delete any electronic mail message sent by You or addressed to You if:
i the size of the mail message addressed to You (including attachments) exceeds Your Mail Quota;
ii the size of the mail message sent by You (including attachments) exceeds Maximum Mail Size as defined in the Service Schedule for Your chosen Service;
iii the total of Your undeleted messages (including attachments) exceeds Your Mail Quota; or
iv You have not deleted the message within one hundred and eighty (180) Calendar days of it becoming available to You (whether read or unread). Emersion recommends that You delete emails on a regular basis. Once deleted, the message will not be able to be retrieved;
v the message has been stored in the Deleted, Spam, or Outbox folders seven (7) days after the message becomes available to You or was sent by You;
(c) If Emersion deletes any electronic mail messages it is not required to notify You or the sender of the deletion of the mail message(s).
(d) Service Cancellation
If Your Service is cancelled, Emersion may delete any stored or received emails in Your email account after thirty (30) Calendar days.
5.1 Investigation of Spam Violations
Upon notification of an alleged violation of the terms of the AUP regarding SPAM, Emersion will initiate an immediate investigation. During the investigation, Emersion may restrict Your access to the network to prevent further violations. If You are found to be in violation of our terms regarding SPAM, Emersion may, at its sole discretion, restrict, suspend or terminate Your account.
5.2 Violation of Policy
(a) Violations of this AUP will result in an “Administrative Fee” (Admin Fee) of three hundred dollars ($300) and Your account will be reviewed for possible immediate termination and You acknowledge that this fee is a reasonable pre-estimate of the likely cost to Emersion of investigating and acting on any violation. However, where Emersion determines that the Administrative Fee is insufficient to cover its costs incurred, Emersion may charge you, at its then current hourly rates for the time that Emersion personnel spend investigating the matter, less the Administrative Fee.
(b) Emersion also reserves the right to pursue civil remedies for any other costs, damages or liabilities incurred by Emersion associated with the investigation or prosecution of a substantiated SPAM violation and You agree to indemnify Emersion against any costs so incurred.
6 INTERNET USE RISKS / DISCLAIMER
(a) The Internet contains content You may find unsuitable, offensive or adult in nature and which may breach Australian laws. Emersion does not endorse or control such content and disclaims any and all liability in respect of such content. You have the right to make complaints to the ACMA about Internet content which is or could be rated R, X or Refused Classification (RC).
(b) You must take all reasonable measures to prevent unauthorised access to the Emersion Service. You acknowledge that if You run certain applications (such as File Transfer Protocol or Hyper Text Transfer Protocol), other users may gain access to Your computer.
(c) If You buy goods or services on the Internet Emersion will not be responsible or liable for those goods and services and You will be responsible for any fees or charges You incur. If You send confidential information such as Your credit card details over the Internet, You bear all risks and losses arising from such transmissions.
(d) Emersion may monitor Your use of the Emersion Service to ensure that You are complying with these terms, but is not obliged to do so. Emersion may investigate any misuse or suspected misuse of the Service and may involve the police or other law enforcement agencies in doing so. Emersion may recover the cost of such investigation if it is established that You have misused the Service. If Your use of the Emersion Service causes any loss or damage to third parties, You must compensate those third parties for such loss or damage.
7 SERVICE USE OBLIGATIONS (THINGS YOU MUST DO)
7.1 Bulk Messages or Email
If You send Bulk solicited electronic messages, then:
(a) You must include in each message, an email address, telephone number, facsimile number or mailing address that can be used to notify You that the recipient no longer wishes to receive such messages from You (i.e. an “Opt Out Notice”); and
(b) if You are sent an Opt Out Notice, then You must immediately comply with the notice.
7.2 Reporting of Child Pornography
If You are made aware that any Service You obtain from Emersion is being used to access material that a person, acting reasonably, may have grounds to believe is child pornography or child abuse material, You must report it immediately to Emersion and the relevant Law Enforcement Agency.
8.1 Compliance by other Service Providers and End Users
(a) Without limiting any clause in this AUP, if You resell the services to another party, be it another Service Provider or an End User, You must ensure that those who use the Services comply with all the clauses of this AUP. Without limitation, You must:
i ensure that the conditions of use or other documents governing the relationship between You and each Service Provider or End User incorporate a reference to an Acceptable Use Policy applicable to the provision of the Service no less onerous than the Acceptable Use Policy given by Emersion to You and containing no provisions which are inconsistent with this AUP; and
ii enforce compliance by Your customers with this AUP; and
iii enforce compliance by Your end users (being a customer of Yours or of any of Your customers) with this AUP (other than this clause 31); and
iv promptly notify Emersion if You become aware of a breach of this AUP by any such customer or end user.
8.2 Regulatory Authorities
Commonwealth legislation allows the ACMA to direct Emersion to attend to certain matters including removal of prohibited Internet content from our servers or prevent users from accessing certain Internet content. You agree that Emersion may take any necessary steps in order to comply with any relevant industry code of practice or direction from the ACMA or other regulatory authority. Emersion may take these steps at any time without notice to You.
8.3 Investigation by Authorities
Emersion reserves the right to act in any manner it deems appropriate where there are reasonable grounds for suspecting that illegal or unacceptable usage of the Emersion Network and Systems is occurring. Emersion will co-operate fully with Commonwealth and State Police and other bodies investigating unlawful behaviour on or via its network or systems. Emersion reserves the right to suspend Your access if Your usage of the Emersion Network or Systems is subject to any investigation.
9 ABUSE (EXCESSIVE USE) OF SERVICE
(a) In all cases, abuse of the Service whether intentional or not will not be tolerated and will be stopped or corrected, with or without notice to You.
(b) You further agree that use of the Service regarding any type, format or process, used by or through the Service and that uses ten percent (10%) or more of Server resources, per instance, for more than thirty (30) continuous seconds, is subject to being shutdown.
(c) Abuse of the Service can also include “Excessive Errors” generated by Customer Web pages, scripts, systems or other use of the Service. When possible, You will receive notice of Excessive Errors and You agree to correct or remove, any such files, programs or systems creating the Excessive Errors within a maximum of twenty four (24) hours from time of the notice. If You do not correct or remove them Emersion has the option of resolving the Excessive Errors to the best judgment of Emersion.
(d) You agree that Emersion may or may not charge a maintenance fee at the Hourly Rate to resolve Excessive Errors within twenty four (24) hours of this notice.