TERMS AND CONDITIONS

Earthlink Internet Services

Terms and Conditions

| Definitions | Term | Acceptable Use of Services | Acceptable Use Policy | The Client's Obligation to Pay earthlink.com.au | Refunds for Internet Access | earthlink.com.au's Rights | Excluding our Liability | Things Beyond earthlink.com.au's Control | Confidentiality | General | Privacy Policy | earthlink.com.au's Free Web Space Guidelines | Domain Name Registration | Hosting | Web Site Development

PART A: TERMS AND CONDITIONS

earthlink.com.au website is owned and operated by The Trustee for THE ANANDA UNIT TRUST (ABN: 60 186 680 271) Trading As Reverence Pty. Ltd. (ACN: 105 079 552).  Your access to earthlink.com.au is subject to these terms and conditions, notices, disclaimers and any other rules of use contained on this website.  Your use of, and/or access to earthlink.com.au constitutes your agreement to the terms and conditions.

1. Definitions

1.1 “Service” means interactive dial up access to the Internet including computer recourses, disk storage and computer communications facilities provided by earthlink.com.au or it’s suppliers.

1.2“Client” refers to the person or company whose name appears on the account application form.

2. The Service

The Service is provided and intended for the direct use of the Client only.  It is neither nor resalable.  earthlink.com.au reserves the right to immediately terminate any Services which are found to have been resold to third parties without consent.

3.Term

The agreement becomes effective at the time that the application for Service is approved and the appropriate access account is created.  The agreement remains valid until the Client requests termination or earthlink.com.au terminates the Service. The Client may terminate the Service at any time in writing.  earthlink.com.au may only terminate the Service after thirty (30) days written notice has been given except if, in the opinion of earthlink.com.au,

The Client misuses or abuses the Service, breaches the contract or fails to pay any account by it’s due date for payment; or

If the client is in breach of any of the Terms and Conditions or have not remedied that breach within 10 days of receiving notice from us; or

If the client fails to pay any fees by the due date or breach any of the provisions of clause 6 below.

Applicants for Service must select their own user name and password that must be used to access earthlink.com.au.  Applicants must also provide certain personal information as requested during Service application.  Application for Service information, personal information and other information will be collected and used in accordance with earthlink.com.au Security Policy

4. Acceptable Use of Services

4.1 The Client shall not use the Service, or any part of the Service, or any information or other material accessed or obtained through the use of the Service, for any purpose contrary to any regulation or law.

4.2 The Client shall comply with the rules and regulations imposed by any Internet network accessed through the Service.

4.3 The Client shall not use the Service for advertising purposes without the express written consent of earthlink.com.au.

4.4 earthlink.com.au shall not be responsible for, and accepts no liability whatsoever in respect of information, graphics or other material accessed through the Service.

4.5 The Client shall not assign any rights of access to the Service to another party. The use of the Service by a party other than the customer without the written consent of earthlink.com.au is strictly prohibited.  The Client shall ensure that the user password allocated to the customer is kept strictly confidential. 

4.6 The Client shall indemnify earthlink.com.au in respect of any liability, loss or damage arising as a result of the use of the Client’s rights of access to the Service by any other party (with or without the consent from the Client).

4.7 Telephone call costs.  Telephone charges are the total responsibility of the Client.  earthlink.com.au does not access the telephone rates (local or long distance) that apply to the location from which the Clients connect to earthlink.com.au point of presence. To ascertain Telstra’s recommendations in relation to whether your call costs will be charged at local or long distance rates between the phone number you wish to access the Internet with and our Melbourne POP following this link: http://www.telstra.com.au/locallongdistance/ccost_f.htm

4.8 The Client is responsible for and must pay the costs of all telecommunications and Internet access charges incurred when using earthlink.com.au.

4.9 The Client is responsible for all equipment and software necessary to access earthlink.com.au and for the security and integrity of their data.

4.10 The Client’s use of earthlink.com.au is their responsibility and entirely at their own risk.  earthlink.com.au do not check the content of information available from earthlink.com.au.  We are not liable for loss or damage that you or anyone else suffers as a result of using this information including, but not limited to, any damage to, data caused by a virus or similar program.

4.11 The Client agrees that the Service is designed to be shared in a fair and equitable manner with other subscribers.

4.12 Only one login per account is allowed at the same time.

5. Acceptable Use Policy

5.1 The Client must not use earthlink.com.au for any activities which breach any laws, infringe a third party’s rights, or breach any standards, content requirements or codes promulgated by any relevant authority including activities which will require us to take remedial action under any applicable industry code.  You must not use earthlink.com.au in any way which interferes with other users, defames, harasses, menaces, restricts or inhibits any other user from using or enjoying earthlink.com.au.

5.2 The Client agrees not to use the Services to transmit information that may be considered to be:

a) Confidential or proprietary ( except where the Client is the owner of the material, or has received written permission from the owner of the material)

b) Defamatory, libelous, slanderous, obscene, pornographic, or profane

c) Illegal, or potentially illegal, either criminally, or civilly

d) Potentially endangering the life or health of other persons

5.3 The Client agrees not to use the Service to transmit any unsolicited materials via E-mail or newsgroups (“spam”,”UCE, etc).  Particularly, the use of unsolicited E-mail for commercial purposes is strictly forbidden.

5.4 The Client agrees not to use the Service to harass, malign, “flame” or interfere with the rights of others.

5.5 The Client agrees that when using earthlink.com.au Services they will not, nor will they allow others to:

(i) commit a crime or facilitate the committing of a crime;

(ii) invade the privacy of others or alter messages of others;

(iii) engage in misleading or deceptive conduct or fraud of any kind;

(iv) fail to maintain the security and confidentiality of any accounts, user names or passwords provided to you to enable you to use the Service, and you must change your account user name or password immediately on request to do so from us;

(v) cause or help to cause the security or integrity of any of our Services or other linked computer systems or sites to be compromised whether by way of hacking, cracking, virus introduction or in any other way;

In addition;

(vi) you indemnify earthlink.com.au, our employees, contractors and agents, against any loss, cost or damage we may suffer as a result of the use of your Services (whether or not by you, or using your accounts, user name or passwords) or as a result of a breach or any of your warranties to us or any other provisions of this agreement.

(vii) You must promptly provide to us all assistance and information we reasonably require in relation to the supply of the Services to you.

6. The Client’s obligation to pay earthlink.com.au

6.1 In return for earthlink.com.au providing this Service to you, you must pay earthlink.com.au the relevant fees, charges, and costs notified to you and as may be amended by us from time to time. “Fees”: We will use commercially reasonable efforts to notify you of any increase in the fees from time to time. If you do not agree to pay the increased fees you must notify us in writing within 10 days of receiving the notice from us, that you do not accept the increase. Unless we receive notice from in writing and it is agreed by us, your right to use the Services will cease. In the event that no other Services are then subject of our agreement, this agreement will immediately terminate. If we do not receive any notices from you in accordance with this clause and you continue to use the Service after 10 days from our notification, you agree that you are deemed to have consented to the increase in fees.

Not withstanding the provisions of this clause:

6.2 You agree that we may increase any Fees once a year to reflect changes in the All Groups Consumer Price Index for the city of Melbourne as published by the Australian Statistician.

6.3 You are solely responsible for the use and Service and for all payment of Fees arising from the use and provision of the Service, whether or not the user had your authority.

6.4 Records held and logging procedures adopted by us in relation to usage by or provision of your Service are prima facie evidence that you have used or ordered that Service as indicated.

6.5 We will endeavour to bill you for your usage or our provision (as the case may be) of Service monthly in advance in the first 10 days of each month. Payment must be made within 14 days from invoice date. If your account is not paid within 14 days of that due date, you agree to pay us a late payment fee, at the rate of 15%, on any overdue amounts on an invoice. This will be calculated from the due date to the date of actual payment in full. You agree that this late payment fee is a genuine pre-estimate of damage we will suffer as a result of your late payment and is not a penalty. In addition, we may impose a charge on you to cover our reasonable expenses and costs incurred in enforcing any failure or delay in your payment.

6.6 You must pay any taxes, duties, stamp duties, impost levies or government charges related to this agreement or the supply or usage of the Service.

6.7 If your account is unpaid in part or in whole for a period of one month from the due date, we reserve the right to terminate your access to the Service at any time in our discretion and to refer your information to a debt collection agency or credit reference agency without notice to you.  In the event that you fail to pay your account by the due date and we refer your failure to any debt collection agency or other like body, in the event you seek to reconnect to earthlink.com.au Services, you acknowledge and agree that we may require that you initially pay such fees as represent two months in advance for the Services to be acquired by you.  Such fees are payable at the time of reconnection of your Service.

6.8 earthlink.com.au reserves the right to charge a monthly accounting fee on overdue accounts and to recover additional costs involved in debt collection or in any like body and or legal action taken to recover outstanding monies.  earthlink.com.au also reserves the right to charge a processing fee where a Clients cheque is dishonored when presented for payment is declined for processing.

8. Refunds for Internet Access

8.1 earthlink.com.au may, from time to time at our absolute discretion, provide you with credits in relation to Internet access Services supplied to you.  In the event that we provide such a credit for you, these credits are not transferable, not redeemable for cash and will be applied by us against the next invoice provided for you, and subsequent invoices until such time as the credit is exhausted. If for some reason this agreement expires or is terminated prior to exhaustion of the credit, no cash will be refunded to you in lieu of that outstanding credit.  If you subsequently acquire other Services, those credits neither will nor apply to those new products or Services.

9. earthlink.com.au’s Rights

9.1 We may at any time and in our absolute discretion, suspend or disconnect your access to the Services, and monitor or intercept your use of the Services including, without limitation, any message you send or receive or data you store or access using those Services if we have reasonable cause to do so.

9.2 We may delete that data stored using the Service, in our absolute discretion, if we consider that data to be inappropriate, illegal, offensive or otherwise in breech of any law, standard, regulation or code of practice.  

9.3 earthlink.com.au reserves the right to send E-mails to its clients in relation to its services at any time.

9.4 Without limiting clause 9.1 above, we may at any time, without notice suspend your use or access to part or all of the Services.

For such as is necessary for any maintenance from time to time, and where possible, after giving you as much advance notice as is reasonably practical in the circumstances.

(i) To reduce or prevent interference with our systems or the use of our Services by others; or

(ii) If required to do so, as a result of a direction from any government or other authorities.

9.5 We may at our discretion change any telephone numbers or other access numbers required to access any of the Services and we will not be liable to you in this regard.

9.6 Without limiting the provisions of this clause 9, we may at any time suspend or disconnect your use or access to part of all of the Services that provide access to the internet;

(i) In any case, where you remain connected to the Internet for periods longer than your advertised session times.

(ii) If you subscribe to the Earthlink SuperUnlimited Account Package, where you remain connected to the Internet for periods longer than 600 hours cumulative hours in any on calendar consecutive month; or

(iii) For an average of 18 cumulative hours per day in any calendar month.

At our option, rather than suspending or disconnecting your connection to the internet in the event you breach the connections times referred to above, we may notify you of this breach in your next billing period and advise you that we may deem the pricing plan chosen by you to be the “56k Standard Permanent Connection Account” pricing package. If you breach the connection times referred to above at any time after receiving the notice referred to above, we may immediately, without further notice to you, deem the pricing plan chosen by you to be the “56k Standard Permanent Connection Account” pricing package, effective from the commencement of your next monthly billing period subsequent to the second breach of the above connection times. The terms of that “56k Standard Permanent Connection Account” pricing package will then apply to you from the commencement of that next monthly billing period and you will be billed accordingly. We will use our commercially reasonable endeavours to inform you by email immediately upon our determination to disconnect or suspend your connection or change your pricing package as referred to above.

9.7 You acknowledge that we may be obliged to provide assistance to law enforcement agencies in respect of you’re acquisition or use of the Services and that you will not make any claim against us in relation to that assistance.

9.8 We may access and store certain content accessible using some of the Services (known as caching) for faster and easy access by you. That content is updated on a regular basis but there may be delays in that updating and therefore cached content accessed by you through the Services may not be the most up to date version.

10. Excluding our Liability

10.1 earthlink.com.au is not liable to you or anyone claiming through you for any loss or damage or costs sustained or incurred by you, your employees, contractors or agents or any third party, arising in any way in connection to this agreement or from your use of, or our provision of the Services or any ancillary Service, including without limitation,

Arising from:

(i) Any failure or delay by us to transmit data;

(ii) Any failure or delay by you in receiving data;

(iii) Any transmission or receipt of incorrect data;

(iv) Any erasure or corruption of any data;

(v) Any unauthorized access to your products and Services;

(vi) Any content accessed using the Services found to be offensive, upsetting, inaccurate, misleading or defamatory

10.2 To the extent permitted by law, without limiting the above, in no circumstances will we be liable to you for consequential loss including, without limitation, loss of profit or loss of business.

11. Things beyond earthlink.com.au’s control

11.1 It is impossible for us to ensure that the Services are provided to you at all times or at any specific times or will be able to operate at all times error free. We make no warranties to you in this regard.

11.2 We will not be liable for any failure to fulfil any term of this agreement where that fulfilment is delayed or prevented, restricted or interfered with for any reason beyond our control, including but not limited to fire, storm, flood, earthquake, accident, labour dispute, materials or labour shortage, outages in telecommunications or radio communications networks, law or regulation or any act or omission of any third person

12. Confidentiality

You must keep all information we provide to you which is marked confidential or which you ought reasonably to know would be treated as confidential, from disclosure to any third party and use that information solely for the purpose of using the Service you consent to us detaining urgent interlocutory relief to restrain any breach or anticipated breach by you of these confidentiality obligations.

13. General

These terms and conditions and Part B, which may apply to particular Services, are the entire agreement between earthlink.com.au in respect of the Services. 

13.1 You have not relied on any representation made by earthlink.com.au in deciding whether to acquire Services and you relied on your own judgment in relation there to.

13.2 We may change or remove any of these terms and conditions at any time, including, without limitation, if there is a change to any law or regulations we will use our reasonable commercial endeavours to notify you of these changes when they occur. If you do not agree to the variation of the agreement, you may terminate this agreement by written notification to us in 14 days of the date of our notice. If you have not terminated this agreement within 14 days and you continue to use our Services afterwards, you agree that you are deemed to have accepted the variations.

13.3 If we need to notify you of any matter, we may inform you by mail, facsimile, email or posting a message in the appropriate location on our system that includes, but is not limited to, posting a message on the World Wide Web on our home page. Once we have posted online the email or other message you are deemed to have received it. If it was faxed, you are deemed to have received it upon confirmation by our fax machine. If we mail you, you are deemed to have received it in three days following the date that mail was delivered to the Australia post system, correctly addressed and postage paid.

13.4 Before resorting to any external dispute resolution mechanism, both parties shall attempt to settle any dispute in relation to this agreement in 14 days of that dispute occurring.

13.5 You must not assign or attempt to assign any right or obligation under this agreement without our written consent. We may assign our rights or obligations, or subcontract or obligations about restrictions.

13.6 You agree that you are not our employer or employee, our principle or agent, our partner or joint venture and you have no right to bind us in contract or otherwise at law.

13.7 If part or all of any clause in this agreement is illegal or unenforceable, it may be severed from this agreement and this will not affect the continued operation of the remaining provisions of this agreement. 

13.8 These Terms and Conditions are governed by the law in force in the State of Victoria, Australia.

PART B: ADDITIONAL TERMS AND CONDITIONS

1. earthlink.com.au Free Web Space Guidelines

earthlink.com.au Clients must agree to use their web space in a manner consistent with all applicable Local, State and National laws and regulations, and in accordance with the earthlink.com.au Terms and Conditions, Privacy Policy and the Free Web Space Guidelines set forth. The guidelines listed below are a non-exclusive list of actions and content prohibited on Client sites:

Illegal use. Using the Services to transmit any material (by email, uploading, posting, or otherwise) that, intentionally or unintentionally, violates any applicable local, state, national, or international law, or any rules or regulations promulgated hereunder.

Harm to minors. Using the Services to harm, or attempt to harm, minors in any way.

Threats. Using the Services to transmit any material (by email, uploading, posting, or otherwise) that threatens or encourages bodily harm or destruction of property.

Harassment. Using the Services to transmit any material (by email, uploading, posting, or otherwise) that harasses another.

Fraudulent activity. Using the Services to making fraudulent offers to sell or buy products, items, or services, or to advance any type of financial scam such as “pyramid schemes,” “ponzi schemes,” and “chain letters.”

Forgery or impersonation. Adding, removing, or modifying identifying network header information in an effort to deceive or mislead is prohibited. Attempting to impersonate any person by using forged headers or other identifying information is prohibited. The use of anonymous re-mailers or nicknames does not constitute impersonation. Using deliberately misleading headers (“munging” headers) in news postings in order to avoid Spam email address collectors is allowed.

Unsolicited commercial email/ Unsolicited bulk email. Using the Services to transmit any unsolicited commercial email or unsolicited bulk email. Activities that have the effect of facilitating unsolicited commercial email or unsolicited bulk email whether or not that email is commercial in nature, are prohibited.

Personal Web Space Restrictions. Free Web Space as provided by earthlink.com.au’s internet access accounts are limited to and will not exceed the said allocated space to the said access package. Any excess data will be deleted from earthlink.com.au’s servers if the excess data has not been removed within ten (10) days of the infringement.

Unauthorized access. Using the Services to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of earthlink.com.au’s or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.

Copyright or trademark infringement. Using the Services to transmit any material (by email, uploading, posting, or otherwise) that infringes any copyright, trademark, patent, trade secret, or other proprietary rights of any third party, including, but not limited to, the unauthorized copying of copyrighted material, the digitisation and distribution of photographs from magazines, books, or other copyrighted sources, and the unauthorized transmittal of copyrighted software.

Collection of personal data. Using the Services to collect, or attempt to collect, personal information about third parties without their knowledge or consent.

Reselling the services. Reselling the Services without earthlink.com.au’s expressed written authorization.

Network disruptions and unfriendly activity. Using the Services for any activity that adversely affects the ability of other people or systems to use earthlink.com.au Services or the Internet. This includes "denial of service" (DoS) attacks against another network host or individual user. Interference with or disruption of other network users, network services, or network equipment is prohibited. It is the Client's responsibility to ensure that their network is configured in a secure manner. A Client may not, through action or inaction, allow others to use their network for illegal or inappropriate actions. A Client may not permit their network, through action or inaction, to be configured in such a way that gives a third party the capability to use their network in an illegal or inappropriate manner.

Long Connections and Multiple Logins. Using a personal account for high volume or commercial use is prohibited. The Services are intended for periodic, active use of email, newsgroups, file transfers, Internet chat, games, and browsing the World Wide Web. Clients may stay connected so long as they are actively using that connection for the above purposes. Clients may not use the Services on a standby or inactive basis in order to maintain a connection. Pinging is expressly prohibited. Accordingly, earthlink.com.au maintains the right to terminate any Client’s connection following any extended period of inactivity as determined by earthlink.com.au.

earthlink.com.au, in its sole discretion, may take any one or more of the following actions in response to violations of these guidelines:

·        Issue written or verbal warnings

·        Suspend the Client's web space privileges

·        Suspend the Client's account

·        Terminate the Client's account

·        Bill the Client for administrative costs and/or reactivation charges

·        Bring legal action to enjoin violations and/or to collect damages, if any, caused by violation.

earthlink.com.au reserves the right to make changes to these guidelines at any time and in any manner.

2. DOMAIN NAME REGISTRATION

2.1 If requested by the Client, earthlink.com.au will assist you in the registration of a domain name. The Client acknowledges that we are not responsible for the allocation and administration of domain names and that we cannot guarantee the availability of a domain name or the continued availability.

2.2  Where the Client has requested earthlink.com.au to apply to register a domain name on your behalf, you agree that all the information you provide to us in this regard will be true and complete and you will abide by the terms and conditions of the relevant authority who administers that particular sub-domain.

2.3  The Client agrees to pay all of our fees, charges and expenses in this regards in accordance with Part A.

3. Hosting

This agreement for earthlink.com.au services (hereinafter referred to as the "Agreement") is made and effective as of the date of acceptance, by and between the client and earthlink.com.au.

WHEREAS, earthlink.com.au owns, distributes and provides various products and services that enable entities to publish and maintain World Wide Web pages.

WHEREAS, client desires to utilize the earthlink.com.au services to develop client's presence on the World Wide Web.

NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereto agree as follows:

3.1 earthlink.com.au Services.

earthlink.com.au agrees to provide to client services as set forth:

Payment and Invoicing.

3.2 In consideration of the performance of the earthlink.com.au Services, Client shall pay earthlink.com.au quarterly in advance the amount set forth and may be amended from time to time for the "earthlink.com.au Services" during the term of this Agreement.

3.3 Client shall receive a confirmation letter via e-mail at the time Client contracts for the earthlink.com.au services, which shall confirm the fees payable to earthlink.com.au. Thereafter, Client shall receive a quarterly billing statement for the upcoming three (3) month period, which shall indicate any changes in fees, which shall become effective upon thirty (30) days' notice as set forth in Section 3.5 herein.

3.4 Client is responsible for all activities and charges resulting from Client's use of the earthlink.com.au Services. Client agrees to pay all fees, bandwidth charges, connect time charges, surcharges, and other charges incurred by Client and set forth in the monthly billing statement. Client acknowledges that no refunds will be given by earthlink.com.au in the event that Client's account is terminated by earthlink.com.au or Client mid-term. In the event of a breach of security, Client will remain liable for any unauthorized use of the earthlink.com.au Services until Client notifies earthlink.com.au by sending an e-mail with account information to info@earthlink.com.au.

3.5 Current rates for using the earthlink.com.au Service may be obtained on our web site at www.earthlink.com.au/web_hosting.html. earthlink.com.au reserves the right to change fees, surcharges, monthly membership fees or to institute new fees at any time upon thirty (30) days' prior notice to customer. In addition, earthlink.com.au may institute special trial offers, from time to time, which shall be reflected in the confirmation letter sent to Client upon sign up. If earthlink.com.au does not receive the full amount of Client's earthlink.com.au service account balance within thirty (30) days of invoice date, the client may be charged overdue fees. Client shall also be liable for all solicitor and collection fees arising from earthlink.com.au's efforts to collect any unpaid balance of Client's account(s) then earthlink.com.au may terminate Client's account immediately without further notice to Client.

Responsibilities, Rights and Status of earthlink.com.au.

3.6 Means of Performance. earthlink.com.au shall provide Client with the earthlink.com.au hosting services, as set forth hereto. earthlink.com.au has the right to control and direct the means, manner, and method by which the host services are performed. earthlink.com.au shall perform the host services in a professional manner.

3.7 Support. earthlink.com.au shall provide a reasonable level of technical support to Client via email, or Web page for the term of this Agreement.

3.8 Other Work. earthlink.com.au has the right to perform and license products to others during the term of this Agreement. earthlink.com.au may elect to electronically monitor the host services and may disclose any content or records to satisfy any law, regulation, or other governmental request or to properly operate host services and protect its Clients. earthlink.com.au reserves the right to block any site hosted by earthlink.com.au that contains any content that it deems in its sole discretion to be unacceptable or undesirable.

Responsibilities and Rights of Client.

3.9. Client Liaison. Client shall designate a contact person who shall act as a liaison between Client and earthlink.com.au. Client certifies to earthlink.com.au that he/she is not a minor. (A minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision.) Client agrees to provide earthlink.com.au with accurate, complete and updated information required by the registration of the earthlink.com.au host service (Client Registration Data), including Client's legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Client agrees to notify earthlink.com.au within thirty (30) days of any changes in Client Registration Data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use earthlink.com.au Services.

3.10 Acceptance of earthlink.com.au Services. Client shall have the right to evaluate the earthlink.com.au Services as set forth in Exhibit A for a period of thirty (30) days after initiation of the earthlink.com.au Services, at the charge, if any, set forth or elsewhere offered by earthlink.com.au and confirmed in the confirmation letter. If Client determines that any earthlink.com.au Services do not reasonably satisfy the standards provided herein, then Client shall promptly notify earthlink.com.au of such deficiency. earthlink.com.au shall use commercially reasonable efforts to cure such deficiency. In the event earthlink.com.au is unable to cure such deficiency, Client's sole and exclusive remedy shall be the refund of the amounts paid by Client under the Agreement, and the right to terminate this Agreement.

3.11 Fees and Expenses. Client shall be responsible for payment of all costs, fees and expenses assessed by third parties in the course of being provided earthlink.com.au Services. Such costs include, but are not limited to, the fees required to register and maintain domain names, which is governed by a separate agreement between Client and Network Solutions.

3.12 Third-Party Software. Third-Party software available through the earthlink.com.au Service may be governed by separate end user licenses. By using the earthlink.com.au Services and the third-party software, you agree to be bound by the terms of such end user licenses regarding the applicable third-party software.

3.13 Advertising. Solicitation, and Name Harvesting. You may not use the earthlink.com.au Services to send unsolicited advertising, promotional material, or other forms of solicitation to earthlink.com.au clientele or netizens unless you receive the express permission of such individuals. You may not use the earthlink.com.au Services to collect or "harvest" user-names of earthlink.com.au clientele or netizens without the expressed prior permission of the member. earthlink.com.au reserves the right to block or filter mass email solicitations sent from sites hosted on the earthlink.com.au network.

3.14 Management of Site. Client shall be solely responsible for all content available on or through its site, and shall at all times be subject to the terms of this Agreement, earthlink.com.au's then-standard Terms of Service and any generally applicable guidelines and service standards published by earthlink.com.au. Client warrants that its site hosted on the earthlink.com.au network (I) will conform to the earthlink.com.au Terms and Conditions; (II) will not infringe and will not contain any content that infringes on or violates any copyright, patent or any other third-party right; and (III) will not contain any content which violates any applicable law, rule or regulation. earthlink.com.au shall have no obligations with respect to the content available on or through any site hosted on the earthlink.com.au network, including, but not limited to, any duty to review or monitor any such content. earthlink.com.au reserves the right to block any site that violates any of the above-stated terms, or which in earthlink.com.au's sole discretion, earthlink.com.au deems objectionable or offensive, or otherwise violates a law or earthlink.com.au policy, or, in the alternative, to terminate this Agreement in accordance with Section 4.23 herein.

Confidentiality and Proprietary Rights.

3.15 Confidentiality. Both parties acknowledge that: (1) the other party is the owner of valuable trade secrets, and other proprietary information and license same from others, (2) in the performance of the earthlink.com.au Services, both parties shall receive or become aware of such information as well as other confidential and proprietary information concerning the other party's business affairs, finances, properties, methods of operation and other data (hereinafter collectively referred to as ("Confidential Information"), and (3) unauthorized disclosure of any Confidential Information would irreparably damage the owner or supplier of such Confidential Information.

3.16 Non-Disclosure. Both parties agree that, except as directed by the other party or as provided in this paragraph, neither party will at any time during or after the term of this Agreement and for a period of three (3) years after any such termination disclose any Confidential Information to any person or entity, or permit any person or entity to examine and/or make copies of any reports or any documents prepared by the other party or that come into the party's possession or under the party's control that relates to Confidential Information; and that upon termination of this Agreement, both parties will turn over to the other party all documents, papers, and other matter in such party's possession or under such party's control that contain or relates to such Confidential Information. Both parties shall notify the other party, prior to disclosure of the information to the other party, that it considers the information to be confidential. Confidential Information shall not include information that; (1) is already lawfully known to or independently developed by the receiving party; (2) is in the public domain through no fault of the receiving party; (3) is lawfully obtained from a third party without restrictions; or (4) is required to be disclosed by law, regulation or governmental order.

3.17 Injunctive Relief. Both parties acknowledge that disclosure of any Confidential Information by the other party will give rise to irreparable injury to the owner of such information, inadequately compassable in damages. Accordingly, either party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available.

3.18 Proprietary Rights. Unless otherwise specified, all work performed hereunder, is the property of earthlink.com.au and all title and interest therein shall vest in earthlink.com.au; provided however, that any content or materials supplied by Client shall remain the property of Client and its suppliers. To the extent that title to any such works may not, by operation of law, vest in earthlink.com.au, all rights, title and interest therein are hereby irrevocably assigned to earthlink.com.au. All such materials shall belong exclusively to earthlink.com.au, and earthlink.com.au shall have the right to obtain and to hold in its own name, copyrights, trademarks, registrations, or such other protection as may be appropriate to the subject matter; and any extensions and renewals thereof. Client agrees to give earthlink.com.au and any person designated by earthlink.com.au such reasonable assistance, at earthlink.com.au's expense, as is required to perfect the rights defined in this paragraph.

Warranties/Indemnity.

3.19 Warranty. Client understands that except for information, products, or services clearly identified as being supplied by earthlink.com.au, neither earthlink.com.au not any of its affiliates operates or controls any information, products, or services on the Internet in any way and that, except for such earthlink.com.au identified information, services or products, all merchandise, information, and services offered or made available or accessible on the Internet generally are offered or made available or accessible by third parties who are not affiliated with earthlink.com.au or its affiliates.

All software made available in conjunction with the earthlink.com.au services are provided on an "as is " basis. Except as expressly set forth in this agreement, earthlink.com.au does not make any representations or warranties, expressed or implied, regarding the earthlink.com.au services; including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance. You understand that portions of the Internet contain materials that are unedited, sexually explicit and may be offensive to you and that your access to such materials is at your own risk. earthlink.com.au has no responsibility for or control over such materials. no oral advice or written information given by earthlink.com.au, its employees, licensers, or the like, shall create a warranty; nor shall you rely on any such information or advice.

Under no circumstances, including negligence, shall earthlink.com.au or anyone else involved in administering or distributing the earthlink.com.au service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the earthlink.com.au services, earthlink.com.au software including but not limited to reliance on any information obtained, or stored, on the earthlink.com.au network; or that result from mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to acts of god, communications failure, theft, destruction, or unauthorized access to earthlink.com.au records, programs, or services. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in such states, earthlink.com.au’s liability is limited to the greatest extent permitted by law.

3.20 Indemnity. Each party will indemnify the other party from any and all third-party claims, demands, liabilities, costs or expenses, including reasonable solicitors' fees resulting from the indemnifying party's material breach of any duty, representation or warranty under this Agreement, except those resulting from the gross negligence or knowing or wilful misconduct of the other party. Such indemnity shall be conditional upon (1) prompt notification to the other party of any identifiable claim; (2) the indemnifying party's control of all settlement and other negotiations; and (3) the indemnified party's full cooperation with respect to such claim.

3.21 Limitation of Liability. earthlink.com.au shall not be liable to Client for more than the aggregate amounts paid to earthlink.com.au under this Agreement.

3.22 Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS.

Terms and Termination.

3.23 Term. This Agreement will become effective on the date indicated in the introductory paragraph of this Agreement, and will remain in effect for the term indicated.

3.24 Termination. In the event of any material breach of this Agreement by either party, the other party may terminate this Agreement, by giving ten (10) days prior notice thereof (in writing by fax, mail or email); provided, however, that this Agreement shall not terminate at the end of said ten (10) days notice period if the party in breach has cured the breach of which it has been notified prior to the expiration of said ten (10) days.

3.25 Either Client or earthlink.com.au may terminate this Agreement at any time for any or no reason upon ten (10) days' written notice to the other party. Notwithstanding the foregoing, earthlink.com.au may immediately block Client's site or immediately terminate Client's access to and use of the earthlink.com.au Service and software; if at earthlink.com.au's sole discretion, it deems any information contained in Client's site to violate earthlink.com.au's Terms and Conditions or to be otherwise objectionable or offensive or to violate the law, in accordance with Section 4.14 herein. Client's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of earthlink.com.au in operating the earthlink.com.au Service, any change in the content of the earthlink.com.au Service, or any change in the amount or type of fees charged in connection with the earthlink.com.au Service, is to terminate this Agreement by delivering notice to earthlink.com.au, effective the day earthlink.com.au receives notification of termination or any future date specified which is acceptable to earthlink.com.au. earthlink.com.au may terminate immediately any Client who misuses or fails to abide by this Agreement or the earthlink.com.au Terms and Conditions. earthlink.com.au may terminate without notice Client's access to and use of the earthlink.com.au Service and Software upon a breach of this Agreement. If earthlink.com.au denies you access to the earthlink.com.au Services, you shall have no right (1) to obtain any credit(s) otherwise due to you, and such any third-party providers of services, merchandise, or information on the Internet through earthlink.com.au, and earthlink.com.au shall have no responsibility to notify such third-party providers nor shall earthlink.com.au have any responsibility for any damages that result from the lack of such notification.

3.26 Surviving Sections. The following paragraphs shall survive the termination of the Agreement: (" Confidentiality and Proprietary Rights"),  ("Warranties/Indemnity") and ("General").

General.

3.27 Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties' respective successors and permitted assigns.

3.28 Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party, or a representative of the party; (2) one business day after deposit with a commercial overnight carrier, with written verification of receipt; (3) three business days after the mailing date, whether or not received, if sent by Australia Post, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile.

If to earthlink.com.au:

earthlink.com.au Suite 1/109 Maroondah Hwy, Lilydale, Victoria, Australia, 3140

If to Client:

Name and address provided for account setup.

3.29 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Victoria, except with regard to its conflict of law rules.

3.30 Modifications. No modifications, amendment, supplement to or waiver of this Agreement or any exhibit hereunder, or any of their provisions shall be binding upon the parties hereto unless made in writing and duly signed by both parties.

3.31 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder.

3.32 Severability. In the event any one or more of the provisions of the Agreement or any of any exhibit is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired.

3.33 Force Majeure. Neither party hereto shall be liable for failure to perform any obligation under; this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of such party, including without limitation, fire, flood, strike, and other industrial disturbance, failure of transport, accident, war, riot, insurrection, act of God or order of governmental agency. Performance shall be resumed as soon as possible after cessation of such cause. However, if such inability to perform continues for fifteen (15) days, the other party may terminate this Agreement without penalty and without further notice.

3.34 Independent Contractors. The parties to this Agreement are independent contractors. Neither party is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.

3.35 Entire Agreement. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements of the parties with respect to the transactions set forth herein. Neither party shall be bound by, and each party specifically objects to, any term, conditions or other provisions which is different from or in which is proffered by the other party in any correspondence or other document, unless the party to be bound thereby specifically agrees to such provision in writing.

3.36 You understand that except for information, products or services clearly identified as being supplied by earthlink.com.au, neither earthlink.com.au nor any of its affiliates operates or controls any information, products, or services on the Internet in any way and that, except for such earthlink.com.au identified information, services, or products, all merchandise, information and services offered or made available or accessible on the Internet generally are offered or made available or accessible by third parties who are not affiliated with earthlink.com.au or its affiliates. YOU EXPRESSLY AGREE that use of the earthlink.com.au Service and earthlink.com.au software are at YOUR SOLE RISK and YOU AGREE that any information, service, or product provided generally on the Internet is accessible to you WITHOUT WARRANTIES OF ANY KIND BY earthlink.com.au AND ITS AFFILIATES, EITHER EXPRESSED OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, other than those warranties which are implied by and incapable of exclusion, restriction, or modification under the laws applicable to this agreement. YOU UNDERSTAND that portions of the Internet contain MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT AND MAY BE OFFENSIVE TO YOU AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR RISK. earthlink.com.au HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH MATERIALS.

3.37 UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL earthlink.com.au, OR ANYONE ELSE INVOLVED IN MONITORING, ADMINISTERING, OR DISTRIBUTING THE earthlink.com.au SERVICE OR SOFTWARE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE earthlink.com.au SERVICE OR SOFTWARE INCLUDING, BUT NOT LIMITED TO, reliance on any information obtained on the earthlink.com.au Service; or that result from mistakes, omissions, interruptions, deletion of files, e-mail, errors, defects, viruses, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communications failure, theft, destruction or unauthorized access of, or to, earthlink.com.au records, programs or services. YOU HEREBY ACKNOWLEDGE that this Clause 4.37 SHALL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE THROUGH THE earthlink.com.au SERVICE. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, IN SUCH STATES earthlink.com.au LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

3.38 Either Client or earthlink.com.au may terminate this Agreement at any time for any or no reason upon ten (10) days notice to the other party. Notwithstanding the foregoing, earthlink.com.au may immediately block Client's site or immediately terminate Client's access to and use of the earthlink.com.au Service and software, if, at earthlink.com.au 's sole discretion, it deems any information contained in Client's site to violate earthlink.com.au's Terms and Conditions or to be otherwise objectionable or offensive or to violate the law. Client's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of earthlink.com.au in operating the earthlink.com.au Service, any change in the content of the earthlink.com.au Service, or any change in the amount or type of fees charged in connection with the earthlink.com.au Service, is to terminate this Agreement by delivering notice to earthlink.com.au, effective the day earthlink.com.au receives notification of termination or any future date specified which is acceptable to earthlink.com.au. earthlink.com.au may terminate immediately any Client who misuses or fails to abide by this Agreement. earthlink.com.au may immediately terminate without notice Client's access to and use of the earthlink.com.au Service Software upon a breach of this credit(s) otherwise due to you, and such credit(s) will be forfeited, (a) to access through earthlink.com.au any materials stored on the Internet or (b) to access any third-party providers of services, merchandise or information on the Internet through earthlink.com.au, and earthlink.com.au shall have no responsibility to notify such third-party providers nor shall earthlink.com.au have any responsibility for any damages that result from the lack of such notification.

3.39 Upon request of earthlink.com.au, you agree to defend, indemnify, and hold harmless earthlink.com.au, its officers, directors, employees, agents and licensees, from any claims and expenses, including reasonable solicitor's fees, in connection with your use of the earthlink.com.au Service and the Internet.

3.40 This Agreement shall be governed by the laws of the State of Victoria (excluding choice of law rules). This Agreement constitutes the entire agreement between you and earthlink.com.au with respect to the earthlink.com.au Service. earthlink.com.au's failure to enforce any provision hereof shall not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.

3.41 Advertising, Solicitation and Name Harvesting. You may not use the earthlink.com.au Service to send unsolicited advertising, promotional material, or other forms of solicitation to other Clients unless you receive the expressed written permission of the Client. You may not use the earthlink.com.au Service to collect or "harvest" screen names of other Clients without the expressed prior permission of the Client. earthlink.com.au reserves the right to block or filter mass email solicitations on or through the earthlink.com.au Service.

3.42 Internet Conduct. Generally, the Internet consists of the following areas available through earthlink.com.au; Email, Newsgroups, Gopher, and WAIS FTP, and the World Wide Web). The Internet is not owned or operated by, or in any way affiliated with earthlink.com.au or any of its affiliates; it is a separate, independent network of computers and is not part of earthlink.com.au. Your use of the Internet is solely at your own risk. When using the Internet and all of its components, Clients must conduct themselves responsibly according to the Internet's own particular code of conduct. Participating successfully on the Internet is really a matter of common sense. Although earthlink.com.au does not control the Internet, your conduct on the Internet when using your earthlink.com.au account is subject to earthlink.com.au rules. Because earthlink.com.au wants to be a good Internet citizen, it prohibits Clients from engaging in certain conduct on the Internet through or by means of earthlink.com.au including the following: (1) Chain Letters. Chain letters are prohibited on earthlink.com.au and are inappropriate on the Internet. Posting a chain letter to an Internet newsgroup (or via email on the Internet) from your site may result in your earthlink.com.au Services site being terminated.

(A) Commercial Communication. The vast majority of newsgroups and mailing lists on the Internet are not commercial in nature, and participants in such groups may object strongly to commercial postings, solicitations, or advertisements.

(B) Other Inappropriate Posts. Each newsgroup and mailing list on the Internet focuses on a particular set of topics and posts not related to these topics are not welcomed by the participants. We suggest that all Clients become familiar with the guidelines, themes, and culture of the specific newsgroups and mailing lists in which they wish to participate. Posting or distributing inappropriate material on or from your site (i.e. spamming or mail bombing) may result in suspension or termination of your earthlink.com.au account.

(C) Copyright and Proprietary Materials. You should be aware that much of the Content available on the Internet is protected by copyright, trademarks, trade secrets and other rights of the independent third parties or their licensers who make such content available on the Internet. Clients use of such Content will be subject to the specific restrictions place on such Content by the owners or licensors of the Rights in such Content and all applicable laws and regulations. Transmitting to the Internet or posting on your site copyright or other material of any kind which is subject to rights of any person or entity without the express permission of the right's holder is prohibited and will result in termination of your earthlink.com.au Service and possible civil and /or criminal liability.

(D) Offensive or Objectionable Material. earthlink.com.au reserves the right to request you any material which earthlink.com.au deems offensive, hurtful, or otherwise objectionable. Failure to do so may result in blocking your site or termination of the Agreement by earthlink.com.au Services.

You understand that except for content, products or services expressly available at earthlink.com.au's Web site, neither earthlink.com.au nor any of its affiliates controls, provides operates, or is responsible for any content, goods, or services available on the Internet. All such content, goods, and services are made accessible on the Internet by independent third parties and are not part of earthlink.com.au or controlled by earthlink.com.au. earthlink.com.au neither endorses nor is responsible for the accuracy or reliability of such content, goods, or services available on the Internet, which are the sole responsibility of such independent third parties, and your use thereof is solely at your own risk. Neither earthlink.com.au nor its affiliates shall be held responsible or liable, directly, or indirectly, for any loss or damage caused or alleged to have been caused by your use of or reliance on any content, goods or services available on the Internet or your inability to access the Internet or any site on the Internet. The foregoing provisions of this paragraph shall apply with equal force even where earthlink.com.au features or displays a link with any particular Web site.

You should be aware that the Internet contains content, goods, and services that you may find obscene, improper, hurtful, or otherwise offensive and that may not be suitable for certain individuals or for minors who are accessing the Internet. earthlink.com.au does not have the capability or right to monitor, or review, or restrict any content, goods, or services made available by third parties on the Internet, nor to edit or remove any such questionable content after posting on the Internet. In addition, you should be aware that the Internet provides access to users who are not part of earthlink.com.au and whose conduct and communication may also be found harmful or offensive to clients or which would otherwise breach the earthlink.com.au rules if they were subject to it. earthlink.com.au and its affiliates specifically disclaim any responsibility for (and under no circumstances be liable for) any conduct, content, goods, and services available on or through the Internet (including without limitation any part of the Web).

Your use of the Internet is subject to all applicable local, state, national, and international laws and regulations, Without limiting the other rights available to earthlink.com.au under earthlink.com.au Rules, earthlink.com.au retains the right but not the obligation, in its sole discretion and without prior notice or liability, to restrict and/or terminate your access to the Internet and earthlink.com.au if your use of the Internet violates any such laws or regulations, any prohibitions upon your conduct in connection with the Internet raised in this paragraph or otherwise restricts or inhibits any other user from enjoying the Internet or earthlink.com.au.

These Terms and Conditions are governed by the law in force in the State of Victoria, Australia.

5. Web Site Development

5.1 While earthlink.com.au may own certain intellectual property rights in the websites developed for the Client, the Client has certain obligations in relation to that information that is provided to earthlink.com.au and is in accordance with Part A. The Client acknowledged that they are responsible for the final authorization to release, and the content of, the website developed for you and you will be responsible for signing off on that website prior to release to indicate it meets your specification.

5.2 The Client is responsible for obtaining any consent from any third party regarding use of any of their intellectual property rights or the right to link their website to your website.

5.3 The Client is responsible for providing earthlink.com.au any legal disclaimers or other notices you require to be inserted on your website. The Client is responsible for providing all content necessary for your website unless otherwise expressly agreed.