In this Acceptable Use Policy (Policy), unless the context requires otherwise:
Affiliate means a related body corporate of an entity (within the meaning in section 50 of the Corporations Act 2001 (Cth)) or an entity that Controls, is Controlled by or is under common Control with, the entity;
Application means the software application or applications made available to the Customer by the Supplier;
Authorised User means the Customer’s authorised end users for the Application;
Customer means the entity obtaining access to the Application;
Customer Access Facilities means telecommunications, networks, systems and any other facilities (including any connection, hardware, software, web services, third party content or software or equipment) used, or required, by or on behalf of the Customer for accessing and making use of the Application but excluding any telecommunications connection, hardware, software, web services, third party content or software, or equipment provided by the Supplier to the Customer from time to time;
Confidential Information of a party (the Disclosing Party) means all information disclosed or made available to the other party (the Receiving Party), including:
(a) information which, either orally or in writing, is designated or indicated as being the proprietary or confidential information of the Disclosing Party or any of its Affiliates;
(b) information relating to the business affairs of the Disclosing Party or any Affiliates of the Disclosing Party;
(c) any other information which is marked “confidential” or is otherwise indicated to be subject to an obligation of confidentiality, owned or used by or licensed to the Disclosing Party or an Affiliate of the Disclosing Party; and
in the case of the Customer, Customer Data, and in the case of the Supplier, includes:
(d) information relating to the Application;
(e) information relating to the Supplier’s Personnel, policies, business, systems, and data;
(f) information relating to the terms on which the Services are to be provided to the Customer,
but excludes information which:
(g) is in or becomes part of the public domain otherwise than through breach of this Policy or an obligation of confidentiality owed to the Disclosing Party;
(h) the Receiving Party can prove by contemporaneous written documentation was already known to it at the time of disclosure by the Disclosing Party or its Personnel (unless such knowledge arose from disclosure of information in breach of an obligation of confidentiality); or
(i) the Receiving Party acquires from a source other than the Disclosing Party or any Affiliate or Personnel of the Disclosing Party where such source is entitled to disclose it;
Control has the meaning given to that term under section 50AA of the Corporations Act and Controlled has a corresponding meaning;
Customer Data means any and all data and information related to which the Supplier is provided access by the Customer for the purpose of the Application;
Documentation means the user documentation and any other operating and reference manuals relating to the use of the Application, as supplied by the Supplier to the Customer;
Intellectual Property Rights means all intellectual or industrial property, including without limitation any copyright, trade or service mark, patent, Moral Right, registered design, trade secret, logo, know how, rights in relation to inventions, rights in respect of Confidential Information and circuit layout rights;
Maintenance and Support Services means theSupplier’smaintenance and support policy made available on the Supplier’s website located view here, as may be updated from time to time by the Supplier;
Moral Rights means any moral rights including the rights described in Part IX of the Copyright Act 1968 (Cth) (as amended and revised from time to time), or other analogous rights arising under any statute, that exist or that may come to exist anywhere in the world;
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth);
Personnel means any individual employed or engaged by the Supplier or any subcontractor to perform Services for the Customer;
Professional Services means the professional services made available to the Customer by the Supplier (if applicable);
Server means those computer servers located as of the current version of this Policy in Australia that the Supplier owns, leases or otherwise controls whether in its own data centre or the data centre of another entity with which the Supplier has a contractual relationship;
Services means a collective reference to the Application, Documentation, Maintenance and Support Services, Professional Services, and Server that together comprises the Software as a Service offered by the Supplier to the Customer; and
Supplier means Eltav Investments Pty Ltd ABN 18 652 146 776 and Bodhicorp Pty Ltd atf Gadens Service Trust No. 2 ABN 76 950 746 247.
(a) The Customer’s and its Authorised Users’ access to and use of the Services are subject to and conditional upon their compliance with this Policy. By accessing and using the Services, the Customer and its Authorised Users agree to abide by the then current version of this Policy.
(i) violation of this Policy may result in the suspension or termination of the Services and such action as the Supplier deems appropriate;
(ii) repeated violation of this Policy will result in the termination of the Services;
(iii) indirect or attempted violations of this Policy, and actual or attempted violations of this Policy by a third party on the Customer’s behalf, will be considered violations of the Policy by the Customer.
(c) Generally, the Supplier does not actively monitor, censor, or directly control any Customer Data stored on or transmitted over the Application and the Supplier has no obligation to monitor Customer Data. The Supplier cannot and does not warrant, verify or guarantee the quality, accuracy, safety or integrity of the Customer Data or other materials or information that the Customer or a third party may post or access through the Services. The Customer is solely responsible for all of the Customer Data and the Customer and the Authorised Users’ access to and use of the Services.
3. No Illegal or Harmful Uses
The Services may be used only for lawful purposes. Transmission, distribution or storage of any material or any activity in violation of any applicable law or regulation, including but not limited to gambling, are strictly prohibited. The Supplier reserves the right to restrict or prohibit any and all Customer Data or access to or use of the Services that it determines in its sole discretion is harmful to its Services, reputation, or good will, to its Customers, or to any third party. The following non-exhaustive list describes the kinds of illegal or harmful conduct that are prohibited:
(a) Excessive Use of Server Resources
The use of programs, scripts, or algorithms that cause excessive stress to the Server. This is due to the resultant reduction in resources and deterioration of the Services for other Customers on the same Server. Such programs, scripts, or algorithms may only be used with a dedicated Server. Determination of excessive Server use is at the Supplier’s sole discretion.
Infringement of Intellectual Property Rights or other proprietary rights including, without limitation, material protected by copyright, trade mark, patent, trade secret or other Intellectual Property Rights used without proper authorisation.
(c) Illegal Materials
Disseminating or hosting Customer Data that is, without limitation, unlawful, obscene, harmful, invasive of privacy or publicity rights, abusive, or otherwise objectionable, under the law of any jurisdiction.
(d) Harmful Content
Disseminating or hosting harmful content including, without limitation any software, viruses, Trojan horses, worms, time bombs, cancel-bots or any other computer programming routines that may damage, interfere with, surreptitiously intercept or expropriate any system, program, data including the Services and the Customer Data.
(e) Fraudulent Conduct
Offering or disseminating fraudulent goods, services, schemes, activities or promotions; fraudulent submission or use of personal or financial information; or engaging in any practice that constitutes an unfair or deceptive trade practice.
4. Maintenance of Security and Integrity
Violations of the Supplier’s system or network security are prohibited, and may result in criminal and civil liability. The Supplier will investigate incidents involving such violations and may involve and will cooperate with law enforcement if a criminal violation is suspected. Examples of system or network security violations include, without limitation, the following:
Unauthorised access to or use of Customer Data or the Supplier’s systems or networks, including any attempt to probe, scan or test the vulnerability of the Supplier’s system or network or to breach security or authentication measures without express authorisation of the Supplier.
Unauthorised monitoring of Customer Data or traffic on the Supplier’s network or system or any third party’s network or system.
(c) Intentional Interference
Interference with the provision of the Services to any Customer or Customer Access Facilities including, but not limited to, denial of service attacks, mail bombing, news bombing, other flooding techniques, deliberate attempts to overload the Customer Access Facilities and broadcast attacks.
(d) Falsification of Origin
Forging of any TCP-IP packet header, e-mail header or any part of a message header. This prohibition does not include the use of aliases or anonymous remailers.
(e) Avoiding System Restrictions
Using manual or electronic means to modify usage details for billing reasons or to avoid any use limitations placed on the Services such as access and storage restrictions.
5. No E-Mail Abuses
The Customer may not distribute, publish, send or incite unsolicited mass e-mailings, promotions, advertising, or solicitations (such as spam), including without limitation, commercial advertising, informational announcements, and mail bombing. The Customer may not use the Supplier’s mail server or a third party mail server to relay e-mails without the express prior written consent of the Supplier or the third party.
6. No Service Bureaus
The Customer may not sell, assign, rent, transfer, distribute, act as a service bureau, or grant rights in the Services to any third party without the express prior written consent of the Supplier. The Customer will at all times adhere to all applicable law, rules, and regulations and then current version of this Policy. In particular the Customer may not access or use the Services:
(a) in connection with any tortious or actionable activity;
(b) to publish or disseminate information that:
(i) constitutes slander, libel or defamation;
(ii) publicises the Personal Information or likeness of a person without that person’s consent; or
(iii) otherwise violates the privacy rights of any person; or
(c) to threaten persons with bodily harm, to make harassing or abusive statements or messages, or to solicit the performance of acts or services that are illegal under applicable law;
(d) in connection with any disruptive or abusive activity;
(e) to cause denial of service attacks against the Supplier, the Supplier’s system or network, or other Customers or to otherwise degrade or impair the operation of the Supplier’s Server, system or network or the Customer Access Facilities of other Customers;
(f) to post programs, scripts or algorithms that consume excessive CPU time or storage space;
(g) to offer mail services, mail forwarding capabilities, POP accounts or auto recorders other than for the Customer’s own account;
(h) to subvert, or assist others in subverting, the security or integrity of any the Supplier’s Server, system or network;
(i) to gain unauthorised access to the Supplier’s Server, system or network or the Customer Access Facilities of another Customer;
(j) to provide passwords or access codes to persons not authorised to receive such materials by the operator of the system requiring the password or access code;
(i) forge the signature or other identifying mark or code of any other person;
(ii) impersonate or assume the identity of any other person; or
(iii) engage in any other activity (including ‘spoofing’) to attempt to deceive or mislead other persons regarding the true identity of the Customer (excluding the use of anonymous remailers or internet nicknames);
(l) to conduct port scans or other invasive procedures against any server (except any server for which the Customer is an authorised system administrator);
(m) to distribute, advertise or promote services that have the primary purpose of encouraging or facilitating unsolicited commercial email or spam;
(n) in any manner that might subject the Supplier to unfavourable regulatory action, subject the Supplier to any liability for any reason, or adversely affect the Supplier public image, reputation or goodwill, including, without limitation, sending or distributing sexually explicit, hateful, vulgar, racially, ethnically or otherwise objectionable materials as determined by the Supplier in its sole discretion; or
(o) in any other manner to interrupt or interfere with the usage of the Services by other Customers.
7. Enforcement by the Supplier
The Supplier reserves the right, but does not assume the obligation to investigate, any violation of this Policy or misuse of the Services. The Supplier reserves the right and has absolute discretion to:
(a) enforce this Policy; and
(b) remove, disable access to, or amend any Customer Data that violates this Policy; and
(c) suspend or terminate the Customer’s access to and use of the Services in accordance with clause 2(b).
Without limitation, the Supplier also reserves the right to report any activity (including the disclosure of the appropriate Customer Data) that it suspects violates any applicable law or regulation to the appropriate law enforcement officials, regulators, or other third parties.
The Supplier may also cooperate with the appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct or infringement of any third party’s legal rights by providing information relating to any alleged illegal, harmful, infringing or objectionable Customer Data or conduct. The Supplier reserves all rights to identify the Customer by its IP address to third parties within the scope of the Privacy Act 1988 (Cth) and the Information Privacy Act 2000 (Vic).
8. Changes to this Policy
(a) The Supplier may change this Policy at any time by notice to the Customer.
(b) If the Customer does not wish to accept the changes to this Policy, it must notify the Supplier of its termination of its use of the Application within 30 days of the Supplier’s notice of the changes to this Policy.
(c) If the Customer does not give its notice of termination within the period prescribed in clause 7(b), the changes to this Policy will apply with effect on 30 days after the date the Supplier sent the notice of the changes to this Policy to the Customer.