1 --- Definitions
1.1) " Foxall" means Foxall.com.au Pty Ltd (ABN 84 006 467 123 )
1.2) "User" means the person or entity who enters into an Authorized Use Agreement with Foxall.
1.3) "Service" means dial-up access to the computer network known as the Internet including information Services, computer resources, disk storage and computer communications.
1.4) "Hacking" means unauthorized
entry by any means into another computer to observe data contained therein
to copy or damage information on that computer or interfere with the use operation
or efficiency of that computer.
2 --- Agreement
2.1) These terms and conditions constitute the entire understanding and agreement between the parties with respect to the provision of the Service. All other written or verbal representations, understandings or agreements are hereby excluded.
3 --- Service
3.1) Foxall shall provide The User with the Service which shall generally be available 24 hours a day, seven days a week except for upgrade and maintenance times. However, Foxall will not be liable for interruptions to the operation of the service or any system accessed through Foxall.
3.2) The User acknowledges that the Service is not fault free and that they may experience interruptions and access difficulties from time to time.
3.3) Foxall will provide The User with a Login ID code, password, telephone number and other information to enable access to the Service. The User must not use the Login ID code and password for multiple concurrent logins.
3.4) The User shall not engage in line blocking by permanently connecting to the Service. Connection is only permitted while using the Service. (see acceptable usage policy)
3.5) All warranties of any kind are excluded - except non-excludable warranties implied by State or Commonwealth Statue.
3.6) Foxall may restrict the size of maximum allowable email to 3Mb in total. Emails larger then 3Mb may be rejected.
3.7) Foxall does not provide unrestricted Internet access for all protocols, and some protocols are only available through proxies. Foxall reserves the right to make changes and modifications to its system as it feels necessary without prior notice.
3.8 All ADSL services shall be contracted
for a minimum period of 12 months after which a renewal period of 6 months
automatically applies, unless the User advises Foxall 30 days before the expiration
of a contract in writing, of their wish to discontinue the service.
4 --- Charges
4.1) The charges for using the Service are published by Foxall from time to time. Foxall may vary these charges at any time and The User shall be given one month's notice of any such variation by publishing new charges on Foxall's webpage.
4.2) Users on monthly plans will have their credit card debited for each month in advance according to the previous plan unless 7 days notice in writing is given to Foxall. It is The Users responsibility to view details of plans available on Foxall's webpage.
4.3) Any prepayment of connection fees is NOT refundable.
4.4) Any cost incurred by Foxall as a result of any unauthorized use, misuse or abuse of the Service will be charged to The User and added to the charges otherwise payable.
4.5) The User acknowledges that the fees for using Foxall are those listed in Foxall Services Internet Pricing Plan and that the Pricing Plan forms part of this Authorized Use Agreement.
4.6) The User agrees that overdue accounts
incur interest charges.
5 --- User Obligations
5.1 ) The User agrees to provide a telephone line, modem, computer and software to facilitate access to the Service.
5.2 ) The User agrees not to transfer its rights nor delegate its obligations under these terms and conditions or resell the Service.
5.3 ) The User is responsible for the selection and use of security features, non disclosure of personal login information and back up of any information. The User is responsible for all use of the Service accessed through The User's password. Disclosure or loss of login information that incurs charges or Service misuse is The User's responsibility and should be reported to Foxall as soon as possible.
5.4 ) The use of the Service is at The User's sole risk and is entirely The User's responsibility. Foxall does not and cannot monitor or control the content and information accessed from the Service and Foxall shall not be held responsible in any way for any content or information accessed from the Service.
5.5 ) The User will not use the Service to interfere with or disrupt network users, Services or equipment. Disruptions include, but are not limited to, distribution or unsolicited advertising, propagation of computer viruses, using the network to make unauthorized entry to any other machine accessible from the Service, sending harassing or threatening electronic mail and forgery (or attempted forgery) of electronic mail messages and Usenet news postings.
5.6 ) The User agrees to refrain from mass postings of messages to inappropriate Usenet newsgroups. The User agrees to refrain from mass, unsolicited e-mailings. The User agrees to post advertisements only where appropriate and in venues that specifically encourage or allow advertising. The User agrees to respect the conventions of the newsgroups, lists and networks to which The User is posting including rules more restrictive than, but not limited to the above.
5.7 ) The User agrees to refrain from publishing receiving or transmitting any material that is grossly offensive, abusive, indecent, obscene or menacing. The User agrees to not publish material on their homepage that provides instructional information about illegal activities, promoting physical harm or injury against any group or individual, displaying material containing nudity or pornographic material of any kind, or material that exploits images of children under 18 years of age. The User agrees that any homepage that receives in excess of the number of "hits" as determined by Foxall is liable for additional charges and/or restriction of Service.
5.8 ) The User must comply with instructions given by Foxall concerning the Service from time to time.
5.9 ) The User shall pay all costs, fees, charges or other expenses which are or may be incurred in respect to the User using any services of the Communications Provider to allow access to the Service and shall indemnify and keep indemnified (the Dealer) and Foxall in respect to any such costs, fees, charges or other expenses.
5.10) The User shall pay all costs, fees
charges or other expenses which are or may be incurred in respect to timed
telephone calls charge by the Communications Provider to enable the User to
access the Service and shall indemnify and keep indemnified (the Dealer) and
Foxall in respect to any such costs, fees, charges or other expenses.
6 --- Acceptable use policy
Flat Rate Plans
6.1) This section only applies if you are on a flat rate plan.
6.2) Flat rate plans are intended for residential or home use only.
6.3) You must not use the Service for predominantly business or commercial purposes.
6.4) You must not permit any person, other than adult members of your household or others with your express permission and under your personal supervision, to use the Service. Any such use by others must not be for business or commercial purposes, and must comply with this Acceptable Use Policy.
6.5) If your use (including sending and receiving in the case of the broadband Services) in our reasonable opinion creates an undue burden to our network or degrades use of the network by other users, then we reserve the right to restrict the level or suspend your access to the Service, without prior notice to you.
6.6) You must not connect another network, such as a local area network, to the Service or allow multiple simultaneous users of the Service. You may connect only one computer to the Service at any one time and must not in any circumstances connect servers who transmit data to the Internet or cable network, such as ftp servers and chat servers.
6.7) Where our Service offering provides an option to acquire multiple simultaneous user rights for an additional fee and you select this option, then you may connect the number of multiple users to the Service as authorised under this offering, provided that you pay us the additional fee in respect of all such users and such users only use the Service for residential or home use, and not for a predominantly business or commercial purposes.
6.8) You must not use automated programs
to continually send or receive high volumes of data via the Service.
7 --- Exclusion of Liability
7.1) Except to the extent that liability may not by statute be lawfully any statement, condition or warranty express or implied, statutory or otherwise as to the quality, merchantability, or suitability or fitness for any particular purpose of the Service is hereby excluded and Foxall shall not be liable to The User or any other persons for loss or damage (whether direct or consequential) arising directly or indirectly from the use of the Service or any modification, variation or enhancement thereof, and any documentation, manual or training relating there to.
7.2) If any condition or warranty is implied
in this Agreement pursuant to any provision of the Trade Practices Act 1974
(as amended) or relevant State of Territory legislation and has not been excluded
from this Agreement, then to the extent that such condition or warranty is
binding upon Foxall the liability of Foxall for breach of the condition or
warranty shall be limited to any one or more of the following as determined
by Foxall in its absolute discretion :
(1) in the case of any goods any one or more of the following :
i) the replacement of goods or the supply
of equivalent goods;
ii) the repair of goods or the payment of the cost of replacing the goods or of acquiring equivalent goods;
iii) the payment of the cost of having the goods repaired;
(2) in the case of any Services :
i) the supplying of the Service again;
ii) the payment of the cost of having the Services supplied again.
8 --- Indemnity
8.1) The User hereby indemnifies Foxall in respect of any loss or damage action, claim, suit or proceeding against Foxall by any person arising out of the use of the Service by The User including but not limited to the transmission of any illegal and/or fraudulent material.
9 --- Force Majeure
9.1) Foxall shall not be liable by reason of the failure in the performance of obligations under these terms and conditions by reason of strikes, riots, fire, explosions, Acts of God, War, governmental action, or any other cause which is beyond the reasonable control of Foxall.
10 --- Termination
10.1) Foxall may terminate the Service for any reason by giving The User (7) days notice.
10.2) Notwithstanding anything herein contained, Foxall may terminate the provision of the Service without notice if The User breaches any of these terms and conditions.
10.3) Foxall, in its sole discretion, reserves
the right to temporarily suspend the Service for any reason.
11 --- Notices
11.1) All notices to be served upon either party by the other shall be in writing and shall be sent by facsimile or electronic mail to the parties hereto at their respective addresses as specified on the Application Form, or posted on Foxall's website under Notices or related sections.
12 --- Illegal Use
12.1) The User agrees not to hack.
12.2) The User agrees not to store hacking or related material on or through Foxall.
12.3) The User agrees not to give information, advice, assistance or any other kind of feedback about or concerning hacking to any person or virtual entity directly or indirectly.
12.4) The User agrees to use best efforts to avoid illegal on-line activities..
12.5) The User shall not permit any other party to use the Service for any illegal purpose.
12.6) The User agrees not to upload into Foxall any virus worm or other programme known or suspected to have a detrimental effect upon any computer or virtual service.
13 --- Copyright Infringement
13.1) The User agrees not to store on or to allow to electronically pass through Foxall any data that the User knows or reasonably ought to know is subject to copyright where that User does not own or have a license to use that Data.
13.2) The User agrees to make reasonable
efforts to avoid establishing hypertext links to material which promotes copyright
infringement or contravention of any law of any country or state.
14 --- Pornography
14.1) The User agrees not to store on Foxall nor allow to electronically pass through Foxall any data which would contravene Australian laws relating to production and distribution of pornographic material.
14.2) The User agrees not to include links to pornographic data in the User's World Wide Web pages.
14.3) The User agrees to keep reasonably vigilant and up-to-date checks on data entering Foxall and to delete such data where it contravenes any Australian law.
14.4) Certain Internet content may contain material which the User may find inappropriate, offensive, inflammatory or adult in nature. Foxall does not endorse such material and disclaims any and all liability for their contents.
14.5) The User agrees that Foxall cannot
be liable for persons under the legal age accessing, receiving or transmitting
any material that is grossly offensive, abusive, indecent, obscene or menacing.
Nor can Foxall be held liable for instructional information about illegal
activities promoting physical harm or injury against any group or individual,
material containing nudity or pornographic material of any kind or material
that exploits images of children under 18 years of age.
15 --- The Usual Legal Fineprint
15.1) The User agrees to abide by any changes to these terms and conditions as may be implemented by Foxall from time to time
15.2) The User will review Foxall's Home Page at least once a month to check whether any variations have been made.
15.3) The User's continued use of the Service will constitute the User's acceptance of the variations of Terms and Conditions.
15.4) The User agrees that Foxall may act in any appropriate manner to curtail any of the matters prohibited by this Agreement or by law, including viewing electronic mail and files reasonably suspected to contain information about such matters.
15.5) The User is advised that, in compliance
with the Industry Code - Calling Number Display, Foxall receives Calling Line
Identification regardless of whether the User has blocked sending it. This
information is solely used to identify if the User is authorized to access
the internet services of Foxall.
15.6) The User agrees to accept all responsibility for the use any conduct of any account granted on or through Foxall as a consequence of this Agreement.
15.7) Foxall Web pages may be subject to a usage charge per hit beyond 10,000 hits per week.
15.8) The parties acknowledge that the law applicable to this Agreement is the law of the State of Victoria, Australia.
15.9) The User agrees to refrain from publishing receiving or transmitting any material that is grossly offensive, abusive, indecent or menacing. The User agrees not to publish material on their homepage that provides instructional information about illegal activities, promoting physical harm or injury against any group or individual, displaying material containing nudity or pornographic material of any kind, or material that exploits images of children under 18 years of age. The User agrees that any homepage that received in excess of the number of "hits" as determined by Foxall is liable for additional charges and/or restriction of Service.