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.
- ACMA means the Australian Communications & Media Authority or any successor – A Commonwealth regulatory authority for telecommunications and radio communications established under the Australian Communications Authority Act 1997. The ACA Controls Access Numbering, radio spectrum, enforces Carrier license conditions and service provider rules.
- AUP means this Acceptable Usage Policy.
- Cancelbot means a controversial ‘bot” program used in Usenet newsgroups to fight spammers. The Cancelbot automatically looks for and removes mass postings.
- Chat Room is a virtual room where a chat session takes place. Technically, a chat room is really a channel, but the term room is used to promote the chat metaphor.
- Denial of Service or DoS means an attack that is specifically designed to prevent the normal functioning of a system and thereby to prevent lawful access to that system and its data by its authorized users. DoS can be caused by the destruction or modification of data, by bringing down the system, or by overloading the system’s servers to the extent that service to authorized users is delayed or prevented. Denial of Service attacks normally stem from external sources using telecommunications (such as via the Internet).
- An End User is the ultimate user of the Service Provider product and services and Emersion Services and will not resell the items to another party.
- Instant Messaging or IM, means a type of communications service that enables You to create a kind of private chat room with another individual in order to communicate in real time over the Internet, analogous to a telephone conversation but using text-based, not voice-based, communication. Typically, the instant messaging system alerts You whenever somebody on Your private list is online. You can then initiate a chat session with that particular individual.
- Licensed Materials means any materials belonging to Emersion which are provided to a Customer or an End User under licence in relation to the supply of Services by Emersion to that Customer in order to allow the Customer or End User to access or use the Services supplied to the Customer by Emersion.
- Open Relay means an SMTP Email Server that allows a third party to relay e-mail messages, i.e., sending and/or receiving e-mail that is not for or from a local user. Open relays make it possible for mobile users to connect to corporate networks by going first through a local Internet Provider, which then forwards the message to their home ISP, which then forwards the message to the final destination. However, a downside of open relay technology is the proliferation of its usage by spammers looking to obscure or even hide the source of the large-volume e-mails they send.
- Opt Out Notice means a direction by the consumer that they no longer want to be sent messages from You.
- Packet Sniffer means a program which displays the contents of all packets passing through a network connection.
- People of a Party means each of the party’s directors, officers, employees, agents, contractors, advisers and representatives but does not include the other party.
- Phishing means the term coined by hackers for attempting to lure personal information out of people by persuading them to visit web sites that look like genuine bank, credit card, or payment sites, when they are actually sophisticated fakes of those sites.
- Port Probing means either a large group of computers on the internet are all probed for a particular port that would indicate a certain type of program running (like a web server) or the targeting of just one machine and will usually probe all the ports on that machine to see if it can identify all the services on a given machine. There are also combinations of these two that will probe more than one port on more than one computer.
- Prohibited Use includes but is not limited to the uses or actions defined in section 25 of the AUP.
- Service(s) are the services Emersion sells to the Customer.
- SPAM means unsolicited or unauthorised advertising, promotional materials, junk mail, mail bombing, chain letters, multiple newsgroup cross-posting, or other form of solicitation or commercial electronic messages as defined in and sent in breach of the Spam Act 2003 (Cth). The sending of Bulk electronic messages of any kind (including email, fax, and SMS) or unsolicited email is regarded as SPAM. Bulk means 30 electronic messages over a 15 minute consecutive period.
- SPIM means spam over instant messaging (IM). SPIM is perpetuated by bots that harvest IM screen names off of the Internet and simulate a human user by sending spam to the screen names via an instant message. The SPIM typically contains a link to a Web site that the spimmer is trying to market. Also referred to as instant spam or the less-intrusive sounding IM marketing.
- Spoofing means Impersonating a server or person without permission (i.e. pretending to be someone else) to deliberately induce a user or a resource to take an incorrect action. Attempting to gain access to a system by pretending to be an authorized user, impersonating, masquerading and mimicking are forms of spoofing.
- Take Down Notice means a formal legal notice or request requiring an organisation to remove material from a web server that infringes on a third parties copyright rights.
- Time Bomb means a resident computer program that triggers an unauthorized act at a predefined time.
- Trojan Horse means a seemingly-innocent program that contains and conceals harmful code. When a Trojan Horse is opened, the malicious code performs its damage on the unsuspecting computer.
- USENET SPAM means Excessive electronic Newsgroup messages. Excessive means posting the same or substantially the same message (Message) to one or more Newsgroups resulting in a Breidbart Index of 20 or more. A Breidbart Index is calculated by multiplying the number of Messages by the square root of the number of Newsgroups that they are posted to over a consecutive 45 day period (For example, posting 20 identical (or substantially similar) messages to 16 Newsgroups over a 45 day period results in an index of 80).
- Worm means a computer program which replicates itself and is self-propagating. Worms, as opposed to viruses, are meant to spawn in network environments. Worms usually are designed to slow down a network or even crash it.
- Virus means a “virus”,” worm” or “Trojan horse” or similar computer program. A Virus is generally a piece of programming code inserted into other programming to cause some unexpected and usually undesirable event such as lost or damaged files. Viruses can be transmitted by downloading programs from other sites or be present on a diskette. The virus lies dormant until circumstances cause its code to be executed by the computer.
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:
- Breach of Law
Breaching or becoming involved in a breach of law, order, or regulation (including that of a foreign country), mandatory code of conduct; or a voluntary code of conduct that You have agreed to comply with.
- Damage to Property or People
Damaging property or causing injury to a person; or harassing, menacing or stalking people.
- Protection of Minors
- Enabling a minor to access material inappropriate for a minor; or
- establishing (or try to establish) contact with a minor otherwise unknown to You.
Unlawfully inciting discrimination, hate or violence towards one person or group, for example because of their race, religion, gender or nationality.
- Obscene, Pornographic, Defamatory, Offensive or Abusive Material
- Sending, displaying, accessing, making available, publishing, distributing or otherwise being involved in material that is obscene, pornographic, defamatory, or is or would be regarded by Emersion or another person, acting reasonably in all the circumstances, to be, offensive or abusive; or
- storing of such material on any Emersion Service; or
- allowing such material to remain present on the Service when You become aware or are made aware of it.
Illegal Business Practices
- Engaging in any misleading, and/or deceptive business or marketing practice; or
- being involved in providing or promoting any illegal pyramid selling schemes or unlawful gambling or gaming activities; or
- allowing such material to remain present on the Service when You become aware or are made aware of it.
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:
- Using the Services, or attempting to use the Services or allowing a third party to use the Services to send, cause the sending of or otherwise be involved in the sending of, SPAM, USENET SPAM or SPIM;
- Causing or requesting any of Your details to appear in SPAM, USENET SPAM or SPIM and/or receiving responses to SPAM, USENET SPAM or SPIM;
- Purchasing, creating, using, distributing, sell or otherwise be involved in software, services or lists of sites, addresses, numbers or other identifiers of any kind (including email addresses and phone numbers) that are used to promote, send, or assist with the sending of, SPAM, USENET SPAM or SPIM.
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 for Spoofing in any form; or
- Using the Services, attempting to use the Services or allowing a third party to use the Services to create, send or alter in any way and by any means (including Spoofing, Phishing and use of third party mail servers), the contents of an electronic message for the purpose of hiding, obscuring or deleting the source of the message or making the message appear to come from someone other than You.
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:
- Defacing web-sites without the permission of the website owner;
- “Probing” of devices on the internet with the intent of searching for and/or identifying security weaknesses on those devices;
- Interfering with a Service provided to any user, host or network including, without limitation; mailbombing, flooding, deliberate attempts to overload a system and broadcast attacks and denial of service attacks. Upon request by Emersion You must demonstrate the steps that You are taking to prevent any such use.
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.