Acceptable Use Policy (AUP)

Contents

• 1. Introduction
• 2. Who does this AUP apply to?
• 3. Changes to this AUP
• 4. The services covered by this AUP
• 5. Our responsibilities
• 6. What is unacceptable use?
• 7. Spam
• 8. Content
• 9. Complaints process
• 10. What we may do about unacceptable use
• 11. Liabilities and indemnities

1. Introduction

1.1 In this document:

• (a) 'we', 'our' and 'us' means ubergeek.com.au Ltd ACN 124 685 105;
• (b) customer' means a user of our services; and
• (c ) complainant' means a person who complains of or alleges unacceptable use by a customer.

1.2 This Acceptable Use Policy (AUP) outlines what we deem to be unacceptable use of the services we provide to our customers.

2. Who does this AUP apply to?

2.1 This AUP sets out our expectations of the way our customers will use our services. It also details how complainants can make complaints about our customer's use of our services.

2.2 When a customer signs up for services with us, they agree to comply with our Terms and Conditions. It is a condition of those Terms and Conditions that all our customers comply with the terms of this AUP. A customer's decision to purchase any of our services signifies their acceptance of the terms of this AUP.

2.3 A customer's obligation to comply with this AUP includes their obligation to ensure that any person who they allow to use our services also complies with this AUP.

3. Changes to this AUP

3.1 We may change the terms and conditions of this AUP at any time. Details of our current AUP will always be available on our website. Changes to this AUP will become effective upon their publication on our website and a customer's use of the Services following publication of any amended version of this agreement will constitute acceptance of the amended terms. If a customer does not wish to accept the amended terms and conditions, they may terminate this agreement by giving us noticeÿ. In these circumstances we will refund any remaining unused credit on their account.

4. The services covered by this AUP

4.1 This AUP covers all services hosted by us.

4.2 If we provide a customer with access to a network outside our network the customer is responsible for complying with the AUP for that network.

5. Our responsibilities

5.1 We will take reasonable measures to ensure that the owners and operators of the services we host will comply with this AUP.

5.2 We reserve the right to monitor a customer's compliance by any means and to take action if we deem it necessary. We will also act on any complaint from a complainant and will cooperate fully with law enforcement agencies if required.

6. What is unacceptable use?

6.1 Any use of our services that contravenes the various Commonwealth and State laws that govern many aspects of Internet use is, by definition, unacceptable use. Our customers are strongly advised to familiarise themselves with these laws and to operate within them.

6.2 In addition, we impose additional restrictions on the use of our services to ensure that the system operates fairly for all customers and to safeguard our good name and reputation.

6.3 A customer must not use our services, attempt to use a service, or allow a service to be used in any way that:

• (a) Breach of law:
  • (i) results in the customer or us breaching, or being involved in a breach of law, order, code, instrument or regulation;
  • (ii) stores, sends or distributes any content or material which is restricted, prohibited, other otherwise unlawful under any applicable Commonwealth, State or Territory law;
• (b) Obscene, defamatory, offensive, abusive: sends, displays, accesses, makes available, publishes, or distributes or otherwise is involved in making material available that a reasonable person would consider obscene, defamatory, threatening, abusive, inciting of violence or hatred, or offensive;
• (c ) The rights of others:
  • (i) violates a person's privacy;
  • (ii) infringes on any person's rights (including intellectual property rights and moral rights);
  • (iii) constitutes a misuse of any person's confidential information;
  • (iv) results in a breach by a customer of any obligation that he/she/it owes to any person;
• (d) Prohibited and Restricted content:
  • (i) sends, displays, accesses, makes available, publishes or distributes or otherwise is involved in material that is likely to be considered unsuitable for minors;
  • (ii) sends, displays, accesses, makes available, publishes or distributes or otherwise is involved in material which is classified RC or X by the Australian Classification Board;
• (e ) Protection of minors: enables a minor to access material inappropriate for a minor or to establish (or try to establish) contact with a minor not otherwise known to the customer;
• (f) Illegal business practices and gambling:
  • (i) engages in any misleading or deceptive business or marketing practice;
  • (ii) involves providing or promoting illegal pyramid selling schemes or unlawful gambling or gaming activities;
• (g) Damage to property or people:
  • (i) results, or could result, in damage to property or injury to any person;
  • (ii) harasses, menaces or stalks people;
  • (iii) accesses, monitors or uses any data, system or network of another person without authority or attempts to probe, scan or test the vulnerability of any data, system or network;
  • (iv) accesses, downloads, stores, sends or distributes any viruses or other harmful programs or material;
• (h) Our service:
  • (i) manipulates or bypasses our usage limits;
  • (ii) undertakes any activity which impedes or interferes with our ability to provide our services;
  • (iii) damages our commercial well being, reputation or brand;
• (i) Excessive Resource Usage:
  • (i) would result in an excessive load being generated on our servers, network, or other resources; and
  • (ii) would create any undue burden on other our customers or the service in general.

6.4 To the extent permitted by law, we reserve the right to decide whether any action or omission constitutes unacceptable use and our decision will be final.

7. Spam

7.1 In addition to the requirements set out above, this AUP also applies to SPAM email.

7.2 Customers must comply with the Spam Act 2003 (Cth) ('Spam Act') and otherwise not engage in practices with would result in a breach of the Spam Act or Spam Regulations 2004.

7.3 In using our services customers must not:

• (a) indiscriminately send or cause to be sent or assist in the sending of unsolicited, unwanted, or inappropriate messages, especially commercial advertising in mass quantities;
• (b) provide capability which permits third parties to send SPAM;
• (c ) cause an adverse effect on any computer, network, or data belonging to any party;
• (d) access anyone else's systems, networks or data without consent, regardless of whether or not such access or use has any adverse effect on the system, network, or data;
• (e ) create, send, or alter in any way the contents of an electronic message for the purpose of hiding, obscuring or deleting the source of the message or making the message appear to come from someone other than themself;
• (f) use or distribute any software designed to harvest email addresses.

7.4 Customer's agree to use their reasonable best endeavours to secure any device or network within their control against being used in breach of this AUP by third parties, including where appropriate:

• (a) the installation and maintenance of antivirus software;
• (b) the installation and maintenance of firewall software; and
• (c ) the application of operating system and application software patches and updates.

7.5 If a customer breaches this AUP's prohibition against SPAM, we may suspend or terminate their service.

7.6 We subject all email toand from customers to Spam filter by default. This service is provided free. The settings for our Spam filtering is via an online portal, the internet address of which will be email to you.

7.7 Filtering services are an effective means of reducing the amount of Spam customers receive. However, they will not eliminate all Spam and there is a risk that legitimate email might occasionally be incorrectly classified as Spam and therefore lost.

8. Content

8.1 In addition to the requirements set out above, this AUP also applies to the content customers make available and information customers choose to access on the internet.

8.2 When making information or content available using the services we provide, customers must ensure:

• (a) that it is classified, labelled and distributed in accordance with the Classification (Publications, Films and Computer Games) Act 1995 (Cth) or any industry code that applies to a customer's use or distribution of that content;
• (b) that the content is not provided if it has not been classified by the Classification Board and would, if it were classified by the Classification Board, be substantially likely to be classified RC, x 18+, R 18+ or MA 15+.

9. Complaints process

9.1 Subject to clauses 9.2 and 9.3, complaints about a customer of ours should be sent to abuse@ubergeek.com.au.

9.2 If a complainant is receiving Spam from a customer of another service provider, they should contact the other service provider.

9.3 If a customer has a complaint about content accessible using our service, they may contact the Australian Communications and Media Authority in accordance with the complaints process detailed on their website: www.acma.gov.au.

9.4 If we receive a complaint about a customer, we may refer it to the appropriate government agency or authority for action (which may include the Australian Federal Police, Privacy Commissioner, Australian Competition and Consumer Commission, or Australian Communications and Media Authority).

9.5 Customers agree that they will cooperate and comply with any corrective or preventative action that we deem necessary to ensure compliance with this AUP.

9.6 Where we receive a complaint, the complaint will be acknowledged within 1 business day. The acknowledgement may be verbal (via telephone) or in writing (via email or letter) at our discretion.

9.7 Where we receive notice of a complaint from a government agency or authority, we will follow the procedures or take the actions we are required to take in that notice, including suspending or terminating your account, removing or disabling access to content or material, or providing the information requested by the agency or authority.

9.8 Where we receive a complaint about content:

• (a) we will record the detail of the complaint;
• (b) we will assess the nature of the complaint and determine whether it requires immediate referral to a government agency or authority. Where we deem referral is required, we will refer the complaint and will take all steps necessary to comply with any direction from, or assist any investigation conducted by, the relevant government agency or authority;
• (c ) if we determine that it does not require referral, we will advise the customer(s) whom the complaint concerns of the complaint and attempt to negotiate a resolution to the issues which are the subject of the complaint to the satisfaction of our customer(s) and the complainant;
• (d) if that is unsuccessful we will advise the complainant of their right to lodge a formal complaint with the Australian Communications and Media Authority;
• (e ) we reserve the right to make a final decision (which may involve suspension or termination of a customer's service) that will bind our customer.

9.9 If the complaint is about service interference created by a customer:

• (a) we will investigate the allegations and attempt to resolve the matter. If our service is seriously compromised we may choose to suspend a customer's service immediately pending an investigation.
• (b) our decision regarding service interference will be final. It may involve suspension or termination of a customer's service.

9.10 We aim to resolve all complaints within 5 business days from the date of our acknowledgement of receipt of the complaint. However, it is not always possible to resolve complaints within this timeframe and timeframes will vary depending on the nature of the complaint. We will keep complainants and relevant customers advised of progress in resolving any complaint raised with us and we will advise both parties either verbally or in writing of the outcome of the complaint.

10. What we may do about unacceptable use

10.1 At our absolute discretion, we reserve the right to suspend or terminate a customer's access to any or all services provided by us if we form the view that a customer has breached this AUP.

10.2 Our right to suspend or terminate a customer's account applies regardless of whether the breach is committed intentionally, through misconfiguration, or by other means not authorised by a customer including, but not limited to, through a Trojan horse or virus.

10.3 We will generally operate on the basis that an allegation of unacceptable use against a customer is not proven until we assess the facts or a law enforcement agency or other relevant government authority requires us to act immediately. Nevertheless, we reserve the right to suspend or terminate a customer's account without notice to that customer if the circumstances dictate (in our sole discretion) that immediate action is required.

10.4 The types of action we make take where we form the view that a customer has breached this AUP include:

• (a) for a serious breach of this AUP, immediately terminating or suspending a customer's service;
• (b) for a non-serious breach where the consequences are serious, immediately terminating or suspending a customer's service;
• (c ) for all other breaches, immediately suspending a customer's service and then terminating the service if that customer does not remedy the breach within the timeframe we have given to that customer to rectify it (such timeframe to be determined by us in our absolute discretion having regard to the severity and consequences of the breach);
• (d) removing or disabling access to content or material if we are directed to do so by the Australian Communications and Media Authority under a takedown notice in accordance with its obligations under the Broadcasting Services Act 1992 (as amended);
• (e ) reporting a customer's conduct or activities to relevant government agencies or authorities;
• (f) complying with requirements detailed in any law, order, regulation or applicable industry code;
• (g) giving a customer a warning regarding their conduct or activity or a notice to rectify a breach; or
• (h) any combination of the above.

10.5 We may remove any content or information a customer makes available using our services where we are directed to do so by the Australian Communications and Media Authority, Australian Securities and Investments Commission, Australian Competition and Consumer Commission, Australian Privacy Commissioner, or any other government agency or authority with the legal authority to require us to do so.

10.6 We may comply or cooperate with law enforcement and security agencies through any means we consider reasonable, including in relation to court orders for the interception or monitoring of our services.

10.7 We may monitor or review a customer's use of our services, including content and information, but we are not obliged to do so.

11. Liabilities and indemnities

11.1 We will not be liable for any loss a customer might incur if we suspend or terminate a customer account under the terms of this AUP where:

• (a) a customer has breached the terms of this AUP;
• (b) we are required to do so by law;
• (c ) we are directed to do so by the Australian Communications and Media Authority under a takedown notice in accordance with its obligations under the Broadcasting Services Act 1992 (as amended);
• (d) we acted reasonably in exceptional circumstances; or
• (e ) we are not able to reach a mutually acceptable outcome.

11.2 Each customer agrees to indemnify us against any claim a complainant might make for any loss or damages the complainant incurs as a result of a breach of this AUP by that customer.

11.3 Each complainant agrees to indemnify us against any claim a customer might make for any loss or damages the customer incurs as a result of a complaint made by the complainant and the action we take as a consequence of that complaint, except to the extent that the acts or omissions of the customer contributed to the customer's loss or damages.