AGREEMENT FOR SUPPLY OF SERVICES
1. CHAPTER 1 - INTRODUCTORY.
In this Agreement:-
(a) "Customer" means a person or company which has entered into an agreement with pSecure for supply of the Services whether via the pSecure web site or otherwise.
(b) "Customer Data" means and includes all information, data, text, logos, images, audio, movie clips and/or content in any form whatsoever, that forms part of the Customer's web pages or emails.
(c) "Prohibited Content" means that content so defined by the Broadcasting Services Act, 1992 (as amended).
(d) "Potentially Prohibited Content" means that content so defined by the Broadcasting Services Act, 1992 (as amended).
(e) "Secure Web Pages" means the encrypted Web Pages located on the Server, which allow users to encode encrypt and send credit card details by means of Secured Socket Layer encryption.
(f) "Server" means the computer server equipment used in connection with the provision of the Services.
(g) "Services" or "the Services" means all products and all services offered by pSecure from time to time.
(h) "Subscriber" means any person or company which has entered into an agreement with any internet web company other than pSecure for the supply of internet services and internet products.
(i) "User" means any user of the Services who has obtained the Services NOT as a Customer, but via a Customer who is authorised to operate the Services.
(j) "Web Site" means the area on the Server allocated to a customer as a site on the Internet.
Words importing any gender include all genders.
Reference to any person includes corporations and vice versa.
The singular number includes the plural and vice versa.
Covenants by any two or more persons bind and enure for the benefit of such persons jointly and each of them severally.
This Agreement operates and takes effect on and from the date listed in the Customer's Web Host Mission Control Panel as the date upon which the Customer's order for services was accepted by pSecure.
A3.1 pSecure may vary these terms, the amount which it charges for any Services, and the terms of the operation of the Services, at any time by general notice on a page of the Internet referred to on the home page of pSecure web site at http://www.purchase-secure.com.au The changes will become effective upon the publication of the notice. Where pSecure varies the prices for Services, it will give at least fourteen days notice of the change by the same means, and the new prices will apply at the end of that period.
A3.2 Accordingly the Customer should alert itself to any amendments to the Terms and Conditions herein that pSecure makes in the future.
A3.3 If the Customer uses the services after the publication of such notice its continued use will constitute an acceptance of the amended terms.
pSecure may from time to time conduct Promotions and make special offers of limited time duration ("Promotions"). All Promotions are offered subject to their terms and may be withdrawn or altered at pSecure's absolute discretion. The terms of a Promotion will override these terms to the extent of any inconsistency.
2. CHAPTER 2 - AVAILABLE SERVICES.
2.1.1 pSecure will allocate to the Customer a log on name ("Customer account number") and an account password which will provide the Customer with access to pSecure's Web Host Mission Control Panel for the purpose of enabling Customer to configure the product features available from pSecure.
2.1.2 pSecure will provide Customer with the services chosen by the Customer at the "Web Host Mission Control Panel".
2.2 Operational Procedures.
2.2 pSecure will advise the Customer by published web page of correct operational procedures for the electronic-internet-business facilities available from pSecure according to the level of service chosen by the Customer.
2.3.1 Scheduled maintenance must be performed to pSecure's internet web servers from time to time.
2.3.2 pSecure will attempt to perform scheduled maintenance at times which will cause the least amount of inconvenience to Customer. If scheduled maintenance requires the internet web servers to be off-line for more than
thirty (30) minutes pSecure will post details of the scheduled maintenance to the Web Host System News so as to give, if reasonably possible, at least 48 hours advance notice of the maintenance.
2.4 Unscheduled Maintenance.
2.4.1 If unscheduled maintenance needs to be performed and requires the internet web servers to be off-line for more than thirty (30) minutes, pSecure will post details of the event to the Web Host System News as soon as reasonably possible after the maintenance has been completed.
2.5 Archiving of Data.
2.5.1 Customer Data will be archived on to the pSecure internet web network system data centre's backup mechanisms on a regular basis, for the sole purpose of disaster recovery.
2.5.2 In the event of equipment failure or data corruption pSecure will effect restoration from the last known good archive.
2.5.3 In the event of corruption of all pSecure data archives, or in the event that an old data archive is used to restore data, Customer may be required to upload data back to pSecure.
2.5.4 Customer must maintain its recent copy of its Customer Data at its premises at all times as pSecure will not be liable for incomplete, out of date, corrupt or otherwise deficient Customer Data recovered from old data backups.
2.6 Conditions Relating to the Provision of Services by pSecure.
2.6.1 The Services are provided by pSecure in Australia but pSecure will determine from time to time the datacentre location from which the Services are provided.
2.7 In contracting with pSecure for the Services, Customer obtains no rights to the hardware and the software, the internet web servers or the infrastructure and facilities used by the pSecure internet web network system datacentres.
2.8 These conditions (as varied from time to time) will apply to any further Services or new services which Customer orders from pSecure unless the same are covered by a separate written agreement.
3. CHAPTER 3 - PAYMENT.
3.1 The current price for each service is shown on pSecure's web site. pSecure will confirm the Customer's choice of service and the applicable price by email. Customer must pay for the Services which it chooses.
3.2 Customer must also pay for all Services, including time charges, usage charges, minimum charges and other amounts incurred by it or any Users or incurred as a result of any use of its account (whether authorised by Customer or not) in accordance with the billing option selected and payable in advance. All cheques are accepted subject to clearance.
3.3 Prices published on pSecure web site are inclusive of any government taxes or charges unless otherwise noted, but exclude any registration charges or any delegation charges imposed by any domain name authorities.
3.4 In addition Customer must provide and pay for:-
(a) the installation and use of telephone lines and all other equipment needed to access the Services; and
(b) all government taxes, duties and levies (if any) which are or may be imposed on either the Customer or pSecure in respect of the Services or any other products and/or goods supplied to the Customer by pSecure.
3.5 Customer must pay all amounts billed in accordance with the billing option which it chooses. No credit terms are available for credit card payments. By supplying to pSecure details of its credit card account number with its credit
card expiry date Customer authorises pSecure to debit its credit card for all account charges as they occur, until such time as written notice of cancellation of that authorisation is received from Customer. The Annual Billing Period (where applicable) is calculated on a monthly cycle beginning from the date upon which Customer first registers for the Services. If Customer registers after the 28th day of a month, its Annual Billing date is the first day of the next month.
3.6 Customer consents to pSecure obtaining reports from a credit reporting agency containing personal information relating to Customer (as well as information concerning its commercial credit worthiness and activities) for the purpose of assessment by pSecure of Customer's application for credit (whether commercial or personal) [or for the purpose of the collection of payments which are overdue or remain unpaid].
3.7 Customer agrees that if it elects to receive an invoice rather than use the auto-debit credit card billing option, or if its credit card is refused authorisation it will be charged an Account Keeping Fee of A$9.50 for each invoice issued. All invoices are payable immediately upon receipt. The Account Keeping Fee is applicable irrespective of whether Customer has chosen to operate on Lite, Economy or Premier level, and also in the event that Customer orders Add On Internet Products.
3.8 The Account Keeping fee will be charged for such customer accounts as are identified with a unique "Customer account number". If a Customer has multiple accounts with pSecure, the Account Keeping fee will be charged on each account for which invoices are issued.
4. CHAPTER 4 - WARRANTIES AND LIABILITIES.
4.1 The terms and conditions contained in this agreement constitute the entire agreement between pSecure and the Customer. There are no representations understandings agreements conditions or warranties oral or in writing between the parties which relate to the Services or to this agreement and no variation of this agreement shall be effective unless it is in writing and signed by an authorised representative of each party.
4.2.1 pSecure does not warrant that the services provided under this agreement will be error-free or uninterrupted or free from external intruders (hackers, crackers) or other persons having unauthorised access to the Services or to the pSecure internet web network system datacentres.
4.2.2 If pSecure is delayed by industrial disputes or inability to obtain materials or any other cause beyond its control the time for provision of the services will be extended as the situation requires. Notwithstanding any suspension of any Services under this clause the Customer shall remain liable for all charges due throughout the period of suspension.
4.2.3 pSecure shall not be responsible to the Customer if its performance of this agreement shall be prevented by legislation Act of God or any cause beyond its control.
4.3 pSecure will not be liable to the Customer for:-
(a) any costs, claims, loss or damage of any kind resulting from the unethical, fraudulent, negligent or otherwise unlawful behaviour of the Customer;
(b) any costs, claims loss or damage arising from any information, data or other material provided to pSecure by or on behalf of the Customer.
4.4 The liability of pSecure for breach of any of its obligations hereunder shall be limited at its option to re-supply of its services or re-payment (less the amount of the cancellation fee payable) of the unused portion of any annual charge, and pSecure will not be liable to the Customer for any claims loss (including consequential loss of any kind) expenses or damages arising out of the provision or non-provision or delay in provision of the services.
4.5 The Customer warrants to pSecure that:-
(a) in entering into this agreement it does not rely on any representation made by or on behalf of pSecure unless the same has been stated expressly in this agreement, or on any descriptions or specifications
contained in any catalogue or publicity material which pSecure has produced; and
(b) it will conduct such tests and computer virus scanning as may be necessary to ensure that data uploaded by it on to or downloaded by it from pSecure does not contain any computer virus and will not in any way corrupt the data or systems of any other person; and
(c) it will keep secure any passwords used to upload data to pSecure; and
(d) it will hold and will continue to hold all the copyright in the Customer Data or alternatively that it is licensed and will continue to be licensed to use the Customer Data; and
(e) it accepts responsibility for all information and all material which it may issue over any internet web server, and that it will indemnify and hold pSecure harmless against any liability in relation thereto; and
(f) it will not publish or issue any information which is illegal or defamatory; and
(g) it is aware that pSecure, does not check or approve any information or material available through the server and that pSecure does not accept any liability therefor; and
(h) it accesses and uses such information and material at its own risk; and
(i) it will abide by pSecure Acceptable Use Policies and pSecure Privacy policies (published upon pSecure's web site), and that the terms of those policies form part of this agreement; and
(j) it is solely responsible for dealing with persons who access the Customer Data, and will not refer complaints or inquiries in relation to such data to pSecure; and
(k) it indemnifies and keeps pSecure indemnified from and against all costs, expenses, loss or liability that pSecure may suffer (directly or indirectly) resulting from:-
(i) its breach of these terms; and
(ii) its use or misuse of the Services; and
(iii) the use or misuse of the Services by any person using its account or operating or purporting to operate on its account; and
(iv) publication of defamatory, offensive or otherwise unlawful material on any part of any web site which it uses; and
(l) it indemnifies and keeps pSecure indemnified against any claim brought against pSecure by a third party resulting from the provision of Services by pSecure to it and its use of the Server, and in respect of all losses, costs, actions, proceedings, claims, damages, expenses (including reasonable legal costs and expenses), or liabilities, whatsoever suffered and howsoever incurred by pSecure in consequence of the Customer's breach or non-observance of any of the terms and conditions hereof.
(m) that pSecure shall not be liable to it or any other person for:-
(i) any cost, loss or liability (including loss of profit or other consequential damage) arising from pSecure supplying or failure or delay in supplying the Service; or
(ii) the content, context or confidentiality of any communications made using the Service; or
(iii) loss or damage caused by third party software applications forming part of the Service; or
5.A TERMINATION BY EITHER PARTY.
5.A.1 (a) Either party may terminate this agreement on 30 days written notice to the other party.
5.A.2 (b) any such termination shall be without prejudice to either party's right to compensation for any previous breach by the other party of any of the terms hereof.
5.B TERMINATION BY pSECURE.
5.B.1 pSecure may terminate this agreement forthwith if the Customer fails to pay any sum due to pSecure as it falls due or commits any breach of its obligations under this Agreement. Upon such termination pSecure shall be entitled immediately to block the Customer's Web Site and remove all data located on it provided always that pSecure will hold such data for a period of fourteen days and allow the Customer to collect it, at the Customer's expense, failing which pSecure shall be entitled to delete all such data and to post such notice in respect of the non-availability of the Customer's Web Site, as pSecure may think fit from time to time.
5.C TERMINATION BY CUSTOMER.
5.C.1 If the Customer closes its account it must pay all outstanding charges immediately and pSecure may delete all Customer Data from any storage media.
5.D SUSPENSION OF SERVICE.
5.D.1 pSecure may from time to time without notice suspend the Services or disconnect or deny the Customer's access to the Service either:-
(a) during any technical failure, modification or maintenance involved in the Services, provided that it will use reasonable endeavours to procure the resumption of the Services as soon as reasonably practicable; or
(b) in the event that the Customer:-
(i) fails to comply with any of its obligations pursuant to this agreement (including failure to pay any fees or charges due) until such time as the breach (if capable of remedy) is remedied, or
(ii) does, or allows to be done, anything which in pSecure's opinion may have the effect of jeopardising the operation of the Service
AND notwithstanding any suspension of any Services under this clause the Customer shall remain liable for all charges due throughout the period of suspension.
5.D.2 pSecure may without notice to the Customer remove, amend or alter the whole or any portion of the Customer's data upon being made aware of:-
(a) any claim or allegation; or
(b) any court order, judgment, determination or other finding of a court or other competent body,
that the data is illegal, defamatory, offensive or in breach of a third party's rights.
5.D.3 Each cancellation of any of the products or services of pSecure at any time will incur a A$99.00 cancellation fee. A cancellation fee may also be charged for fees associated with any domain names that have been cancelled by the Customer. All charges payable by the Customer to pSecure for the Services shall be in accordance with the scale of charges and rates published from time to time by pSecure on the Web Site and shall be due and payable in advance. The provision of the Services by pSecure is contingent upon its having received full payment for such services in advance from the Customer.
5.E AVAILABILITY OF SERVICE
5.E.1 pSecure shall use reasonable endeavours to provide continuing availability of the Server and the Services but it shall not, in any event, be liable for service interruptions or down time of the Server. pSecure does not warrant that the Server will be free from unauthorised users or hackers.
5.E.2 pSecure specifically excludes any warranty as to the accuracy or quality of information received by any persons via the Server and in no event will pSecure be liable for any loss or damage to any data stored on the Server. The Customer is responsible for maintaining its own insurance cover in respect of any loss or damage to Customer Data stored on the Server.
5.F OBLIGATIONS OF CUSTOMER
5.F.1 The Customer warrants to pSecure that it will only use its assigned Web Site and Web Pages for lawful purposes and in particular further under takes to p.Secure that:-
(a) it will not, nor will it authorise or permit any other person to, use the Server in violation of any law or regulation;
(b) it will not knowingly or recklessly post, link to or transmit any material:-
(i) that is unethical, unlawful, threatening, abusive, harmful, malicious, defamatory, violent or teaching violence, obscene, pornographic, profane or otherwise objectionable in any way; or
(ii) that contains a virus or other hostile computer program; or
(iii) that may constitute or encourage a criminal offence, give rise to civil liability or that violates or infringes any trade mark, copyright, other intellectual property rights or similar rights of any person under the laws of any jurisdiction;
(c) it will conform to the reasonable use standards made available by pSecure from time to time and will not itself, and will ensure that none of its end users, make excessive or wasteful use of the Server to the detriment of pSecure or that of other customers of pSecure; and
(d) (i) it is responsible for sending email in a secure manner and in accordance with any relevant legislation (including data protection legislation); and
(ii) whilst pSecure will take all reasonable steps to ensure accurate and prompt routing of email messages pSecure will not accept any liability for non-receipt or mis-routing or any other failure of email messages; and
(e) any transactions within its Web Pages which are contracts for the sale of products or goods or services will be solely between the Customer as the merchant and its end-user as the purchaser, and that pSecure may include an exclusion of all liability in respect of such purchases and transactions in such form as pSecure deems appropriate; and
(f) the information contained within the Customer's Web Pages will comply with all applicable laws, and codes of practice governing the use of Web Sites and related services, including, without limitation, those laws and/or codes of practice governing distance selling and data protection from time to time in force; and
(g) it will keep secure any identification, password and other confidential information relating to its account and will notify pSecure immediately of any known or suspected unauthorised use of its account, or any known or suspected breach of security, including loss, theft or unauthorised disclosure of its password information. Notwithstanding such notification it will be liable for any and all uses of its account (and Web Pages) notwithstanding any fraudulent or improper use of its password or any other access to any of the facilities (except unauthorised use or of access by pSecure); and
(h) the Customer is solely responsible for obtaining any and all necessary intellectual property rights clearances and/or other consents and authorisations, including without limitation, clearances and/or consents in respect of its proposed domain name and merchant services agreements between the Customer and all relevant financial institutions.
6. CHAPTER 6 - DOMAIN NAMES.
6.1 If the Customer has requested that pSecure registers any .com, .net or .org domain name on its behalf, it warrants that it has read and accepted the TLD (Top Level Domains) Policy applicable to .com, .net or .org domain names issued by the registrar Melbourne IT Limited [located at web site URL http://www.inww.com/policies/gtldtermcond.php3]. The Customer agrees that it is aware of the consents, warranties and indemnity which it is required to give to register, maintain, transfer and renew its domain name.
6.2 If the Customer has requested that pSecure registers any .com.au domain name on its behalf, it agrees that it has read and accept the Domain Name Allocation Policy applicable to .com.au domain names issued by the registrar Melbourne IT Limited, located at web site URL http://www.inww.com/policies/comaupolicy.php3.
6.3 The Customer agrees that:-
(a) in the event of a dispute in registering a domain name or about a domain name after registration, Melbourne IT's Dispute Policy [and which can be viewed at web site URL ADDRESS https://direct.inww.com/dispute.sthml ] and the Dispute Policy procedures, [ and which can be viewed at web site URL ADDRESS https://direct.inww.com/udrp-rules.shtml ] and any variations to them from time to time bind it and pSecure; and
(b) maintaining the registration of a domain name after changes or modifications to the Dispute Policy become effective, constitutes continued acceptance by the Customer of these changes and modifications; and
(c) in the event of a dispute, it will submit to the jurisdiction of the courts as provided in the Dispute Policy.
6.6 The Customer acknowledges that it must pay in advance for any registration or delegation charges imposed by Melbourne IT or any other domain name authorities, and understands that it cannot register a domain name without first paying for it in advance.
6.7 pSecure makes no representation and gives no warranty about the Customer's chosen domain name being available for registration or being available for use by it.
6.8 The Customer agrees to indemnify and keep indemnified pSecure against all claims arising out of its registration and use of its chosen domain name.
7. CHAPTER 7 - ACCEPTABLE USE POLICY.
7.1 pSecure's Acceptable Use Policy as set out in this chapter applies to every Customer or User. It is intended to ensure that pSecure's Services are trouble free and that users have due regard to the law and the needs of other internet web Subscribers.
7.2 Each user should read it carefully, as it is a condition of their use of the Services, that all users comply with the terms of this Policy. Users should alert themselves to any amendments to the Acceptable Use Policy that pSecure might make in the future, whereupon all users will be obliged to comply with the Policy as amended.
7.3 pSecure is not responsible for the content of traffic and consequently:-
(a) It exercises no supervision or control whatsoever over the nature or the content of the information passing through the pSecure internet web network system datacentres; and
(b) It does not assume any responsibility for any information, unless expressly sent and authorised in writing by pSecure; and
(c) The responsibility for traffic that does not conform with this policy and all possible consequences lies with the sender of the traffic; and
(d) It accepts no responsibility for the consequences of any breach of the pSecure internet web network system datacentres security and firewalls such as hacking, cracking or denial of service attacks.
7.4 Users are subject to legal responsibilities in relation to:-
(a) supervising and controlling children's access to Internet content; and
(b) procedures which parents can implement to control children's access to Internet content, including availability, use and appropriate application of Internet content filtering software; and
(c) obligations which may exist in relation to user's content under the Broadcasting Services Act 1992 (as amended) or other applicable state legislation: users are particularly referred to the following web site at URL http://www.iia.net.au/or the web site at URL http://www.aba.gov.au/
7.5 Users are responsible for the operation of their accounts. If users permit other persons to operate the Services, users are responsible for making those other persons fully aware of this policy and obtaining compliance with this Policy from those other persons.
7.6 Users are responsible for complying with conditions of use of other internet web networks If pSecure provides users with access to an internet web network outside the pSecure internet web network, users must comply with any acceptable use conditions which apply to that outside internet web network.
7.7 It is the responsibility of users for themselves, and for all other persons whom they either permit or enable or allow to operate the pSecure Services to:-
(a) operate the Services in a manner which does not violate any applicable laws or regulations; and
(b) respect the conventions of the newsgroups, lists and internet web networks which they use; and
(c) respect the legal protection afforded by copyright, trade marks, service marks, patents, license rights and other laws to materials accessible via the Services; and
(e) operate the Services in a manner which does not interfere with or disrupt other Customers and other network users, other internet services and/or internet equipment; and
(f) refrain from acts that waste resources or prevent other internet web network users from receiving the full benefit of the pSecure Services; and
(g) comply with pSecure's Terms and Conditions of supply; and
(h) operate the Services in an ethical manner, and in accordance with accepted community standards.
7.8 Users must comply with the Law. It is not acceptable to use the pSecure Services for any purpose which violates any Local, State, Federal or International laws or regulations. Users should obtain their own independent legal advice about their potential liability for the consequences of the publication of materials on a web site or content database.
7.9 Certain specific kinds of use are not allowed. It is not acceptable to use the pSecure Services to do any of the following ("Unacceptable Conduct"):-
(a) send any unsolicited email in any form ("SPAMMING") ; or
(b) violate copyright or other intellectual property rights; or
(c) illegally store, use or distribute software; to transmit unethical, threatening, libellous, obscene or offensive materials or content; or
(d) engage in electronic 'stalking' or any other form of harassment such as using abusive or aggressive language; or
(e) misrepresent or defame others; or
(f) commit fraud; gain unauthorised access to any computing, information, or communications devices or resources, including but not limited to any machines accessible via the internet; or
(g) damage, modify or destroy the files, data, passwords, devices or resources of the pSecure internet web network system datacentres or other internet web network Subscribers or any third parties; or
(h) engage in misleading or deceptive on-line marketing practices; or
(i) conduct any business or activity or solicit the performance of any activity that is prohibited by law; or
(j) make an unauthorised transmission of confidential information or material protected by trade secrets; or
(k) omit, forge, alter, delete or misrepresent transmission and traffic information that includes headers, return email addresses, Internet protocol addresses, Domain Names; or
(l) engage in any activity intended to hide or withhold or mask its user's identity and/or corporate identity and/or contact information; or
(m) place on the Internet, obtain through the Internet or transmit using the Internet, Prohibited Content or Potentially Prohibited Content; or
(n) place on the Internet, obtain through the Internet or transmit using the Internet any of the following either:-
(i) Content which is (or would be) classified RC or X by the Classification Board. Such content includes:-
- material containing detailed instruction in crime, violence or
drug use; and
- child pornography; and
- bestiality; and
- excessively violent or sexually violent material; and
- real depictions of actual sexual activity; or
(ii) Content hosted in Australia which is classified R unless it is subject to a restricted access system which complies with criteria determined by the ABA. Content classified R is not considered suitable for minors and includes:
- material containing excessive and/or strong violence or sexual
- material containing implied or simulated sexual activity; and
- material which deals with issues or contains depictions which
require an adult perspective; or
(o) propagate computer worms, trojans, viruses and other types of malicious software programs; or
(p) make transmissions of any type or quantity which adversely affect the operation or jeopardise the use of the pSecure Services, or the performance levels for other Customers and Users; or
(q) threaten or harass or impersonate, pSecure and other Customers or other internet web network Subscribers; or
(r) use the Services to interfere with or disrupt the pSecure internet web network system datacentres or other internet web network Subscribers, or their services and their equipment; or
(s) Solicit either Customers or Users of pSecure, to other internet web service providers. To solicit existing customers of pSecure to become Subscribers of other competitive service providers and/or other products, or
(t) Re-sell pSecure Services except as authorised by the Partner Program (at web site URL http://www.purchase-secure.com.au/partner/ )
(u) attempt to do any of these things.
7.10 Users' attention is directed to the Referral Program (at web site URL http://www.purchase-secure.com.au/referral/ ) provides for the payment of commission for referrals, as credited funds into a user's account.
8. CHAPTER 8 - THIRD PARTY COMPLAINT PROCESS.
8.1 pSecure receives from time to time complaints from third parties ("Complaints") regarding Unacceptable Conduct, allegedly being conducted by Customers or their Users. pSecure will make reasonable endeavours to resolve such complaints by discussions with Customers. The complaint process set out here does not apply to complaints which are the subject of court orders or proceedings, or where pSecure reasonably believes that it must take urgent action without reference to the Customer.
8.2 pSecure's policy is to put the complaining party in direct contact with the party best able to answer the complaint. Consequently each Customer hereby authorises and directs pSecure to provide promptly to the third party complainants the relevant Customer's email contact details.
8.3 pSecure will take the following steps to deal with third party complaints received by it in relation to a Customer or a User:-
(a) First Notification:-
(i) Upon receipt of first notification by a third party of alleged Unacceptable Conduct by a Customer or its User ("First Complaint"), pSecure will directly email the Customer notifying it
of the complaint and a brief summary of the particulars ("First Notice")
(ii) pSecure will also send a letter or email to the complainant notifying it of pSecure's policy and procedures in respect of the Unacceptable Conduct complained of, along with direct contact details for the Customer or its User who is the subject of the complaint.
(b) Second Notification:-
(i) If a second complaint is received by pSecure in respect of the same or similar Unacceptable Conduct described in the First Complaint, which indicates to pSecure that the conduct complained of in the First Complaint is continuing ("Second Complaint"), pSecure will send a letter and/or email to the Customer enclosing a copy of the Second Complaint and request a written explanation to be provided within seven business days as to the Customer's explanation for the complaint and proposed course of action to resolve it.
(ii) If a Customer fails to respond to the second notification within the period stipulated or if pSecure is not satisfied with the response, pSecure may (1) bill the Customer A$750 for its ongoing administrative costs of the dispute; and (2) if it considers the Complaint to be material, suspend or terminate the Customers Services (or the Services of the User who is the subject of the complaints) without any further notification.
(c) Third Notification:-
(i) If pSecure receives a third notification after the Second Notice, which indicates to pSecure that the activity complained of in the Second Complaint is still continuing, pSecure will send a letter or email to the Customer ("Third Notice") and require that the activity complained of cease forthwith.
(ii) If within two business days after the date of the Third Notice the Customer has not ceased the activity or shown pSecure to its satisfaction that the dispute has been resolved, pSecure may without further notification to the Customer, terminate or suspend provision of the Services to the Customer until further notice and bill the Customer A$1,500 to cover its administrative costs of the dispute.
8.4 User's rights to complain to the ABA about content. If a user becomes aware that a Web Site hosted by pSecure contains Prohibited Content or Potentially Prohibited Content, the user can make a formal complaint to the Australian Broadcasting Authority by contacting them at: ABA, Head Office, Level 15 Darling Park, 201 Sussex Street, Sydney NSW 2000 Australia, or through their Web Site at URL http://www.aba.gov.au/
9. CHAPTER 9 - IMPLEMENTATION OF POLICIES.
9.2 pSecure may suspend or terminate the user's account and/or notify the authorities. If pSecure believes that use of the Services may break the law or that a user has not complied with this policy pSecure may:-
(a) warn the user by email (but it is not obliged to do so); and/or
(b) suspend the user's access to the Services; and/or
(c) terminate the user's account without notice; and/or
(d) notify and provide relevant information to the authorities,
as appears reasonable and appropriate in the circumstances.
9.3 In the event of pSecure taking action under clause 9.2 it reserves the right to delete any or all of the user's information, material, software or other content stored on the pSecure system in pSecure's sole discretion.
9.4 pSecure may in its absolute discretion, and without any notice, suspend or terminate a user's access to the Services:
(a) where it is made aware that a court order, has been made to the effect that the Customer Data is illegal, offensive, objectionable, unethical or in breach of a third party's rights; or
(b) if it is directed to do so by the ABA under a take down notice in accordance with its obligations under the Broadcasting Services Amendment (Online Services) Act 1999 (as amended).
9.5 Each user agrees that it will have no claim against pSecure in respect of any action reasonably taken by pSecure in its implementation of the terms of this Acceptable Use Policy, and agrees to indemnify pSecure against any claim by any persons arising out of the same.
10. CHAPTER 10 - Miscellaneous.
10.1 The Customer grants to pSecure a license to use and reproduce all its Customer Data in order to fulfil its obligations under this agreement. "Customer Data" means and includes all information, data, text, logos, images, audio, movie clips and/or content in any form whatsoever, which forms part of the Customer's web pages or emails.
10.2 A provision of, or a right created under this agreement, may not be waived except in writing signed by the party granting the right or waiver.
10.3 The Customer agrees not to resell the Services or assign its rights and obligations under this agreement without pSecure's prior written consent.
10.4 It is a condition of use of the Services, that each user complies with all these terms and conditions and use thereof constitutes an acknowledgment and warranty that the user has read these terms and conditions carefully.
10.5 The law in force in New South Wales, Australia governs this agreement and the transactions contemplated by this agreement. Both parties hereby submit to the exclusive jurisdiction of the courts of that state.
Any person who has completed the Form of Application published on the pSecure website
by clicking the submit button thereon warrants that he has agreed to become a Customer of pSecure upon the Terms and Conditions of this Agreement for supply of Services.