1 

Definitions used in this acceptable use policy AUP.

1.1 

The Company is The Emery Corporation Pty. Ltd. A.C.N 052 240 436 T/As West Australian Networks

1.2 

West Australian Networks is a private telecommunications network owned and operated by the Company.

1.3 

The Customer is the legal entity connecting to the West Australian Networks network.

1.4 

The Service is the Internet access and related activities / products provided by the Company.

1.5 

Notices shall be in writing and shall be sent by either hand delivery, post, facsimile, or e-mail.

1.6

"Spam" includes one or more unsolicited commercial electronic messages with an Australian link for purposes of the Spam Act 2003, and derivations of the word "spam" have corresponding meanings.

2 

Services Provided by the Company, Our responsibilities.

2.1 

The Company reserves the right to deny access to any Customer or potential Customer at its discretion.

2.2 

Subject to the payment of all fees and charges that the Customer is obligated to pay under these Terms and conditions and any relevant contract and order form and the Customer's ongoing compliance with these terms and conditions, The Company shall provide the Customer with access to the world wide web also known as the Internet including all ancillary services.

2.3 

Internet access will be available 24 hours per day; 7 days per week with the exception of faults or planned maintenance, which we will advise you of via our network-status mailing list . Should you require these notices please ensure you subscribe to this list.

2.4

The Company provides no guarantees regarding the availability of the Service.

2.5 

Subject to the payment of all fees and charges that the Customer is obligated to pay under these Terms and conditions and any relevant contract and order form and the Customer's ongoing compliance with these terms and conditions, The Company shall provide the Customer with access to free telephone support. Free phone support is restricted to issues related to direct connection to our network. Support for any other issues is available via consulting @ $130 p/hr. Please see the web site for an exact description on what issues are covered by the free support.

The company may charge the Customer additional fees where the Customer contacts support or the NOC (Network Opperations Center) to report a problem with the companies services, where the company determines either:

1. That no fault exists on the company services or
2. The problem with the company services is a result of any act or omission by the Customer in breach of its obligations under these terms and conditions or any instructions provided to the Customer.

2.6 

Any advice provided by staff of the Company is provided in good faith. Any Customer who acts on advice of staff of the Company does so at the Customer's own risk, and indemnifies the Company against any problems, which may arise from acting upon that advice.

3 

Access Account Charges, Terms & Conditions

3.1

You will incur charges when using the Service, details of which are published on the West Australian Networks web site ( http://www.westnet.net.au ). We retain the right to alter these charges from time to time and such alterations shall be notified to you by the giving of a minimum 30 days written notice or by e-mail.

We will bill you in advance for the services in accordance with the conditions of the access plan you choose.

3.2 

We may monitor or keep any records that we deem necessary of your use of the Service. The use of the Service is at your sole risk and is entirely your responsibility. We do not and cannot monitor the content and information accessed on the service and we shall not be held responsible in any way for any content or information accessed on the service. You must rely on your own judgment.

We do not warrant that the service will be uninterrupted or error free, nor do we make any warranty as to the results obtained from the use of the service. The service is provided without warranties of any kind, either express or implied, other than those warranties implied into this agreement by legislation such as the Trade Practices Act and which cannot be excluded to the extent permissible by law, We exclude all liability for any direct, indirect, special or consequential damages arising out of the supply or use of the service or inability to use the service and where such liability cannot be excluded we limit our liability at our option to the re supply or cost of re supply of the Service.

The service must not be used by any individual or group of persons for any activities of an illegal or fraudulent nature. Certain Internet content may contain language or images which some individuals may find offensive, inflammatory, or of an adult nature. We do not endorse such materials and disclaim any and all liability for their contents.

This Agreement shall remain in place until either You or we terminate it by giving a minimum of 30 day's signed written or e-mail notice.

We reserve the right to terminate the service to you without notice if you misuse or abuse the service in a criminal way, including, but not limited to, propagation of computer worms and viruses, transmitting of excessive traffic (such as flood pings, Dos & Ddos), using the network to make unauthorised entry to any other machine accessible via the service, sending harassing or threatening e-mail and forgery (or attempted forgery) of e-mail messages and Usenet news group postings and excessive downloads / uploads (average usage is defined in section 6.1).

We further reserve the right to either terminate, temporarily suspend or add in periods of time as a "lock out" to users defined as "Campers". Campers are users of the network who stay connected near permanently on casual accounts. For example a Customer on an unlimited dial up account who is online for more than 10 - 12hours per day (averaged over a month) is a "Camper". In this case we would contact the Customer requesting they upgrade to a permanent account or curtail their usage. Should the Customer not heed this warning "lock out" periods will be applied. If the Customer continues to push these services to the limit then we would terminate the Customers account.

3.3 

Data Transfers - The account you choose will have published information ( on the web site ) with regards to the amount of data that can be received / downloaded and sent / uploaded. Where you find only an amount of downloads listed it should not be assumed that all uploads are free or unlimited. Unless specifically detailed the rule with our network is a ratio of 1:1. That is to say if you select a plan that includes 2 Gig of downloads, then you are entitled to upload or send out that same amount (2 Gig).

Where an unlimited account is listed you should refer to the " Fair Use " section 6.13 below.

4 

Software Terms and Conditions

4.1 

The West Australian Networks Dial-up Software is provided to you without warranties of any kind, either express or implied, other than those warranties implied into this agreement by legislation such as the Trade Practices Act and which cannot be excluded. To the extent permissible by law, West Australian Networks excludes all liability for any damages arising out of the supply, use or support of the West Australian Networks Dial-up Software. Where such liability cannot be excluded, West Australian Networks limits its liability at its option to the re supply or cost of re supply of the West Australian Networks Dial-up Software.

In relation only to the previous paragraph of this agreement, West Australian Networks enters into this agreement both in its own capacity and as agent for the suppliers and licensors of the freeware and shareware. You acknowledge that West Australian Networks (in its own capacity) and the suppliers and licensors of the freeware and shareware are entitled to the benefit of that clause.

5 

Payment

5.1 

The Customer agrees to pay all such charges as are incurred through usage of the Service.

• Dialup accounts will be terminated and outstanding fees referred to debt collection. Collection costs will be charged to customer account.
• DSL accounts will be disconnected and outstanding fees (including early termination / breech of contract fees etc) referred to debt collection. Collection costs will be charged to customer account. Reconnection fees (New Setup Fee) and delays (5 - 7 working days) would then apply should the customer wish to reconnect.

5.4 

The Company reserves the right to charge interest on any part of the charges not paid to us by the due date as per above. Interest will be charged from the due date until full payment at a rate equal to the National Bank Corporate Overdraft Reference Rate most recently published before that date.

5.5 

The Customer acknowledges that any non-processing of their payments, will incur a $30 Inc GST fee, payable to West Australian Networks. This will include dishonored cheques; refer to drawer notices, insufficient funds notices and any merchant rejections or disputes. See dispute resolution procedure in section 9 below.

5.6 

It is the Customer's responsibility to notify the Company if the Service is no longer required. A minimum of 30 days notice is required to terminate an account. (Ref to Section 9).
ADSL Customers making use of the fast churn process should advise West Australian Networks prior to churning out as charges may apply depending on the date the actual churn takes place. Churns must be completed prior to the 1st of the month to avoid additional montly fees.

5.7 

The Customer acknowledges that their non-use or minimal use of the service does not constitute a right to a full or partial refund of fees.

6 

Customer (your) Responsibilities

6.1

The Customer will not use the Service to interfere with or disrupt the use of the service by other users, services or equipment. Disruptions include, but are not limited to, propagation of computer worms and viruses, transmitting of excessive traffic (such as flood pings), using the network to make unauthorised entry to any other machine accessible via the Service, sending harassing or threatening e-mail and forgery (or attempted forgery) of e-mail messages and Usenet news group postings and excessive downloads / uploads.

The service cannot be used by any individual or group of persons for any activities of an illegal or fraudulent nature which may expose the company or it's related entities to:

• prosecution or investigation for breach of any law, regulation or applicable code.
• any criminal action, civil proceeding or other action.
• to any action or investigation that could result in the revocation, suspension or loss of any licence, ability or right of the company to provide the service.

One breach notice only will be given in the case of minor digressions, a second digression and you will receive a 30 day disconnection notice. A criminal act or serious digression will see us terminate your service without notice at all. In all these cases no refund of fees will be given.

6.2 

The Customer will control and be responsible for any access by a minor to the network, either via the Customer's computer or access code/s.

6.3

The Customer is solely responsible for all use of their account, whether such usage is accidental or a result of deliberate or negligent action on their part.

• You must ensure that anyone who accesses the network via your account/s is aware of and complies with this AUP policy

This AUP may be updated from time to time, we will post notice of any changes on our web site for a period not less than 1 week, but it is your responsibility to read, understand and comply with this policy. You must ensure that you are aware of any changes and your obligations.

6.4 

The Customer declares they are over the age of 18 years.

6.5 

The Customer to the full extent permitted by law, hereby indemnifies the Company, its related entities, its employees, directors, suppliers and sub-contractors in respect to any loss or damage action, claim suit or proceeding against the Company its employees or directors, suppliers and sub-contractors by any person arising out of the use of the Service by the Customer, and or any losses by the Customer resulting from the Service being unable to be provisioned or unavailable for any reason including but not limited to the transmission of any illegal and/or fraudulent material.

6.6 

It is the Customer's responsibility to ascertain the full cost of accessing the Service, including but not limited to carrier charges imposed by any telephone Company used to access the Service. Although officers of the Company may provide advice on telephone carrier charges, it is the Customer's responsibility to confirm this advice by contacting their carrier directly.

6.7 

The Customer is responsible for the selection and use of security features and back up of any data. The Company, its related entities, its employees, directors, suppliers and sub-contractors take no responsibility for any information or data stored on its machines or passing through its network.

Satellite customers must agree to and provide the company with

• Continuous remote access to the gateway for support and maintenance of the service.
• Physical access to the gateway together with associated facilities and equipment used by the Customer, upon the provision of reasonable notice by the company
• Not to modify or use any gateway provided by the company for any purpose other than those permitted under this agreement.
• The company may modify the service from time to time as it considers necessary for the continued improvement and enhancement of the service
• The company may obtain transmission capacity from third party service providers to provide the service
• The company may replace any satellite used to provide the service at any time without notice to the customer provided that the company continues to provide services no less favorable that the service provided prior to the replacement of any satellite.
• The customer agrees to comply with any practices and procedures specified by the company with respect to transmissions to, or from any satellite used for the purposes of providing the service
• The company may suspend the service if the customer does not comply with the above points.

IP Addresses

Subject to a specific request and payment of the IP address fees the company will where ever possible allocate to the client the IP addresses specified in the relevant request. The client agrees that:

• Two of the IP addresses purchased will be required for administrative use as subnet ID and broadcast and will therefore be non usable by the client.
• The IP addresses remain the property of the company at all times and nothing in this AUP transfers to, or gives the customer any rights in relation of any IP address
• The company reserves the right to renumber an IP address assignment by providing the customer with reasonable notice.

Fair Use
Customers are not permitted to use the network in a manner which interferes with the ability of other West Australian Networks Customers or Internet users to use and enjoy the Internet. In particular, you must not: use the network in a manner which West Australian Networks considers to be excessive, unusual or inconsistent with the purpose for which the account you have purchased is intended including but not limited to:

Unlimited Non-permanent or casual dial-up internet access accounts
(i) Remaining on line on average greater than 12 hours per day during any period of 30 consecutive days
(ii) Downloading more than 5 gigabytes during any period of 30 consecutive days.

Unlimited ADSL Internet access accounts
Downloading or uploading more than the following fair use amounts of data:
30 Gig for a 256 connection
40 Gig for a 512 connection
50 Gig for a 1.5Meg connection

Should you breach this fair use policy West Australian Networks may take any action it deems appropriate including, but not limited to:

• The implementation of measures to prevent similar breaches of the AUP in the future (capping to 64 kb/s for the remainder of the calendar month in which the fair use limits above are exceeded);

Customer to minimise risk of breach
You agree to use your reasonable best endeavors to secure any device or network within your control against being used in breach of clause 8.1

9

Termination of the service

9.1 

Either party by giving 30 days written notice prior to the date of expiry of the term or any further term.

9.3 

The Company reserves the right to temporarily disconnect the Customer in the event of serious operational or security incidents arising through the Customer's connection to the Network, including without limitation in the circumstances described in clause 8.2 above. Under normal circumstances and where ever possible a notification of your breach will be issued giving 30 days to rectify the situation. The customer remains liable to all monthly service fees and any other fees during suspension. If this rectification of this breach can not and or does not occur then the service/s will be terminated. Termination fees will be charged to the client ad appropriate.

9.6 

Either party is entitled to immediately terminate this agreement by notice in writing to the other party in the event that:

• The other party has committed a material breach of this agreement and failed to rectify this breach within 30 days of receiving notice of the breach

• An order is made or an effective resolution is passed for the winding up of the other party

• An administrator of the other party is appointed.

Consequences of Termination
Where the service is terminated in accordance with clauses 9.1 or 9.6 the customer must

1. Pay all outstanding fees for services provided up to the date of termination.
2. Cease using the service and allow reconfiguration of the gateway where required by the company
3. Return all confidential information to the company
4. Cease using any IP addresses provided by the company and undertake all steps required to return unencumbered control of the IP addresses to the company

Where the service is terminated in accordance with clauses 9.2, 9.3 or 9.4 the customer must pay to the company the termination fee. The customer and the company acknowledge that the amount of the termination fee is a genuine pre-estimate of the loss or damage that will be suffered by the company as a result of the early termination of the relevant service and that the termination fee does not represent a penalty.

This Acceptable Use Policy (AUP), together with any documents expressly referred to in it, contain the entire Agreement between the Company and the Customer relating to the use of the network and supersede any previous versions of this AUP and any agreements, arrangements, undertakings or proposals, written or verbal between the Company and the Customer in relation to such matters. No verbal explanation or verbal information given by any party shall alter the interpretation of this AUP. In agreeing to this AUP, the Customer has not relied on any representation other than those expressly stated in this AUP, and the Customer agrees that the Customer shall have no remedy in respect of any misrepresentation which has not been made expressly in this Agreement.

Nothing in this AUP limits the Customer's statutory rights as a consumer if or where applicable.