WAIA | Western Australian Internet Association – Western Australian Internet Association

Version 1.4; Draft for public release
Comments and suggestions to public@waia.asn.au

Definitions

"Abuse Procedure" in this agreement means the summary termination of the User's Internet Access for Defined Abuse. The ISP shall notify the User at the time of termination and the User may appeal the disconnection to the Complaints Committee at WAIA. WAIA's decision shall be final and binding.

"Account Limitation" means any configured limits on Internet Access but does not include supply or maintenance of the User's equipment, software or telephone connection. Some measures such as port blocking imposed by ISPs for security reasons are considered by WAIA to be routine and reasonable and do not come under the category of an Account Limitation.

"Additional Payments" means the fees and charges for the Internet Access over and above the standard Regular Payment as defined in the Account Limitations on the Application Form.

"Application Form" means the contact and payment details and specific details of the Internet Access at the web page address [http://                                   ] or as attached.

"Defined Abuse" means misuse of the Internet Access as follows:

1. Giving an unauthorised person the User's account and password details
2. Deliberately or recklessly disrupting the ISP's service;
3. Engaging in Spamming ;
4. Misusing the Internet Access in a manner identified in writing by a competent law enforcement official as unlawful;
5. Using the Internet Access to menace or harass others;
6. Denial-of-service attacks on other users or networks;
7. Using the Internet Access to unlawfully obtain access to other networks; or
8. Breaching any additional forms of abuse defined in the Special Conditions.

"Denial-of-service attacks" mean behaviour of the User that results in disruption of the ISP's service, disruption of other people's Internet Access or their enjoyment of that Access, which includes but is not limited to computer viruses, IRC harassment, email bombardment, damage to Internet-connected resources and channel flooding.

"Disconnection" is the process of the ISP ceasing to provide the Internet Access and upon an event permitting or requiring the ISP to do so:

1. The account may be suspended until reinstated and in any event for not less than 14 days, during which time all incoming mail will be held pending reinstatement of the User's account.
2. If not reinstated within 14 days or such further period as the ISP may permit, the account will be closed, and the ISP will have no responsibility for email or other data sent to or previously held on a closed account.

"Downtime" means periods of unavailability or limited availability of the Internet Access.

"Internet Access" means connection to the global network of networks known as "The Internet" using software protocols supported by the ISP to connect the User's computer equipment to the ISP's network. This includes access to email and the World Wide Web, but not necessarily other services or access otherwise than from a dial up connection. In the event that the ISP limits the Internet Access to access via a dial up connection to email and the World Wide Web, the appropriate Account Limitations must be endorsed on the Special Conditions.

"ISP" means the Internet Service Provider referred to in the Application Form attached, its successors and assigns.

"Megabyte" means one million bytes.

"Notice"  by email shall be sufficient written notice, but at the discretion of either the User or the ISP notice may also be sent by their choice of post, hand delivery or facsimile transmission. The ISP shall confirm receipt of email from the User.

"Regular Payment" is the periodic charge due to the ISP from the User for the User's Internet Access, excluding Additional Payments and telephone charges payable to the telecommunications carrier. Telephone charges payable to the telecommunications carrier (such as Telstra) are strictly the responsibility of the User.

"Special Conditions" means terms and conditions endorsed on the Application Form which impose fees, charges, limitations and conditions on the provision of the Internet Access and include the Account Limitations and Special Terms.

"Spamming" means unsolicited bulk electronic messages sent by the User which in the reasonable opinion of the ISP constitutes a breach of acceptable use of the ISP's email, Usenet news or similar facilities.

"Special Term" means a further service provided by the ISP at the standard and at the rate endorsed on the Special Conditions hereto.

"URL" means a web page address, including the term Universal Resource Locator.

"User" means the customer named in the Application Form completed online at the web page address specified above or as attached.

"Usenet News" means the hierarchy of newsgroups providing public messages on a variety of topics.

"WAIA" means the Western Australian Internet Association Incorporated (http://www.waia.asn.au).

"Web Hit" means a request for any file from a User"s web pages directory, including but not limited to any text, graphics, sound, animation or video file on any individual web page.

Terms and Conditions

1. The ISP agrees to provide Internet Access to the User for the period stated on the Application Form for the Regular Payment stated therein together with the Additional Payments defined therein.
2. In addition to Internet Access, the ISP shall provide to the User the Special Terms noted on the Application Form.
3. The Internet Access shall be personal to the User and the persons authorised on the Application Form.
4. The User has personally completed the Application Form online at the web page link referred to above or as attached.
5. The User agrees to pay the Regular Payment and any Additional Payment as set out in the Application Form. The Regular Payment shall be charged and any Additional Payments shall fall due on the expiry of the first period of pre-paid Internet Access and at the conclusion of each period pre-paid thereafter.
6. The Special Conditions and payments under this agreement are subject to change. The ISP shall give not less than 30 days' written notice to the User of any changes. In the event that the Internet Access is substantially limited by such changes, the User shall be entitled to close the account and to receive a pro rata refund of any prepayments for Internet Access paid prior to the User being notified of the changes.
7. If the User has nominated periodic payments by credit card, debit authority or similar method then payments of the Regular Payment and any Additional Payment shall be drawn against the User's authority unless the User terminates the payment method by 14 days' notice to the ISP.
8. The ISP shall provide to the User an online method of checking the costs incurred by the User's use of the Internet Access between billing periods. Additional Payments based on usage are not to be charged by the ISP unless the ISP has informed the User of the method of checking costs incurred through usage of the Internet Access and that method of checking costs is operating correctly.
9. The Internet Access will be continuously available subject only to downtime for maintenance and in the event of circumstances beyond the ISP's control. The ISP shall not be liable for compensation to the User for any loss or damage suffered by the User as a result of downtime unless the User has agreed with the ISP a Guaranteed Service Standard that is endorsed as a Special Term of this agreement.
10. The ISP may suspend Internet Access for up to 24 hours while investigating any complaint of criminal behaviour and shall monitor or limit the User's Internet Access as required by written direction of a competent law enforcement official.
11. Advice, software and information given by the ISP is given in good faith but is not provided as a condition of this agreement. The ISP shall not be responsible for loss occasioned by the User in reliance thereof unless User Support is endorsed as a Special Term of this agreement.
12. The ISP shall not be responsible for backup and storage of the User's data  and is not liable for loss occasioned by the User in reliance thereof unless Content Hosting is endorsed as a Special Term of this agreement.
13. The Internet Access shall be subject to Account Limitations only as listed on the Application Form or on the web page address referred to therein. Prohibitions and rates for Additional Payments for the Internet Access must be stated on the Application Form, otherwise the Internet Access is not to be otherwise restricted without notice as required by paragraph 6.
14. If the Regular Payment and any applicable Additional Payments are not paid to the ISP by the due date, then the ISP may cease to provide the Internet Access whereupon Disconnection will occur.
15. Disconnection will occur in the event a User's nominated payment method is refused or dishonoured by the User's nominated financial institution, however the ISP shall give the User 7 days' notice of intention to disconnect prior to suspending the Internet Access.
16. The User on the giving of 14 days' written notice to the ISP may terminate this agreement, and email sent to the closed account shall be retained and forwarded for a further period of 30 days. The User may apply for a pro rata refund of any pre-paid Internet Access charges, but the ISP will have the right to levy a reasonable fee for any costs incurred as a result of the early termination of this agreement including charging for the period of pre-paid Internet Access at the rates appropriate for the limited period actually used.
17. Email forwarding may continue for such further period and upon such terms as agreed between the ISP and User. The ISP is under no obligation to forward email in the event the User's Internet Access is terminated under Abuse Procedure.
18. URL redirection shall be provided by the ISP on the same basis as email forwarding.
19. This agreement may be terminated by the ISP:
    
    1. on 30 days' written notice to the User whereupon the Internet Access shall be Disconnected and the User shall be entitled to a pro-rata refund for any prepaid period of the Internet Access; or
    2. in the event of the User committing Defined Abuse in which case the Internet Access may be immediately terminated under Abuse Procedure.
20. In the event the User's Internet Access is terminated under Abuse Procedure, the User may apply for a pro rata refund of any pre-paid Internet Access charges, but the ISP will have the right to levy a reasonable fee for any costs incurred as a result of the Defined Abuse.
21. The forbearance on the part of the ISP from terminating Internet Access on the first date the ISP is entitled to do so shall not constitute any waiver of the ISP's rights to maintain strict time limits for payment and insist upon standards of User behaviour pursuant to this agreement.
22. The ISP shall be subject to the WAIA Code of Conduct for online service providers (online at http://www.waia.asn.au/content/waia-code-conduct) and may take action to comply with that Code's requirements.
23. The ISP shall protect the privacy of the User and expressly informs the User of the privacy rights conferred by the WAIA Code of Conduct and Part 13 of the Telecommunications Act 1997 (Commonwealth) (online at http://www.austlii.edu.au/au/legis/cth/consol_act/ta1997214/). In particular, ISPs shall ensure that the User's full name and password, payment details, personal details and contact details are not disclosed to third parties except as specifically permitted or required by law.
24. The ISP shall not view, alter or remove the User's data:
    
    1. Other than where the ISP is:
       
       1. ordered by a court or competent authority; or
       2. required by law or the Code of Conduct; or
       3. authorised by the User; or
       4. required to take action in order to ensure proper operation of the ISP's network.
    2. Where the ISP obtains private information as a result of such action, the ISP will incur a fiduciary duty  to not redistribute this information.
25. The User hereby indemnifies the ISP against any liability for damages or costs of technical or legal services arising from any Defined Abuse  by the User's  of the Internet Access provided by the ISP.
26. The User shall choose a secure password and ensure that this password is not disclosed to any unauthorised person.
27. The User is aware that the Internet contains material that is unsuitable for children and some material that may be unlawful for children or adults to view, possess or transmit. The User undertakes to adequately supervise use of the Internet Access by minors.
28. The User is aware that Western Australian and Australian laws prohibit certain types of material from being viewed, possessed or transmitted via the Internet . The User acknowledges that the ISP has no control over the accuracy or appropriateness of material accessed over the Internet and that it is the responsibility of the User to comply with applicable laws.
29. The User and the ISP agree that the laws of Western Australia shall govern this agreement. In the event of a dispute as to the interpretation of this agreement, on the written application of either party the dispute shall be arbitrated by WAIA prior to either party being entitled to commence proceedings in any Court. WAIA has its arbitration procedure set out at http://www.waia.asn.au/content/arbitration-policy