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Netbay Free WiFi Service Terms & Conditions

NETBAY INTERNET PTY LTD

(ACN 093 981 321)

NETBAY’S STANDARD TERMS AND CONDITIONS OF USE THE FREE WIFI INTERNET ACCESS

Netbay Internet Pty Ltd (“Netbay”) shall provide free Wifi Internet access to persons who are registered as Members of Netbay free of charge. The availability of free Wifi Internet connections is currently restricted by the availability of network and telecommunications infrastructure, which is outside the control of Netbay.

In consideration for receiving the Wifi Internet access service free of charge, Members shall be served banner and motion picture advertisements on Netbay free Wifi Internet service.

Netbay is a member of the Internet Industry Association of Australia (“the IIA”) and is governed by the IIA Code of Practice (“the Code”). Members of Netbay are able to obtain a copy of the Code by linking to the IIA Website from the Netbay Website.

This agreement is Netbay’s standard Terms and Conditions of Use the Free Wifi Internet Access to private users of the service for non-commercial purposes. Please read this agreement carefully. It is a condition of the Member’s use of the service that the Member complies with the terms and conditions of this Agreement, as amended from time to time.

1. DEFINITIONS

“Agreement” means the Netbay’s Standard Terms and Conditions of Use the Free Wifi Internet Access contained herein.

“Log-In Particulars” means part of Member Information used for identification when connecting to the Service.

“Netbay” means Netbay Internet Pty Ltd (ABN 20 093 981 321)

“Netbay Website” means the website of Netbay found at www. netbay.com.au and includes all web pages found within those websites.

“Member” means a registrant whose Registration Form for the provision of the Service has been accepted and the applicant registered as a Member by Netbay.

“Member Information” means the information provided to Netbay by the Member on the Registration Form.

“Minor” means any person below the age of 18 years.

“Registration Form” means the registration form completed by the Member for the purposes of registering for the Service.

“Service” means the free Wifi Internet access service provided by Netbay free of charge and, at the discretion of Netbay, may include provision of information, computer resources, and communications through the Internet.

“Wifi Internet” means internet access through the IEEE 802.11b/g wireless communication protocol with compatible devices.

2. ABOUT THIS AGREEMENT

The use of the Service by the Member is subject to the terms and conditions of this Agreement and constitutes the entire understanding and agreement between the Member and Netbay. The Member accepts and confirms the terms of this Agreement by the Member’s first and continued use of the Service.

3. THE PROVISION OF THE SERVICE

Registration

3.1 A person desiring to receive the Service shall complete the Registration Form online at the location where the Service is available using a device capable of connecting to the Service.

3.2 Netbay may, at its sole discretion, accept the Registration Form and register the registrant as a Member. Information on Registration Form

3.3 The Member must ensure that their Member Information, as provided to Netbay on the Registration Form, is true and correct. Notification

3.4 Netbay shall notify the registrant of the acceptance of their Registration Form and registration as a Member via email. Access to the Service

3.5 Registrants registered as Members will be connected to the Service as soon as is reasonably possible at the discretion of Netbay.

3.6 Once a Member is connected to the Service, it is intended to be provided on a 24 hour per day, seven days a week basis and Netbay shall make all reasonable efforts to ensure that the Service is fully operational at all times. However Netbay does not warrant to the Member that the Service will be fault free. The Service may be subject to interruptions due to operational difficulties, the breakdown or malfunction of equipment or software, interruptions in network and any other operating difficulties as many occur from time to time. Netbay is not liable for any loss or damage suffered by the Member as a result of any interruptions and other service difficulties associated with the Service. To the extent that such liability cannot be lawfully excluded, Netbay’s liability, at its option, shall be limited to the re-supply of the Service.

3.7 Netbay will disconnect a Member who is connected to the Service continuously for more than 15 minutes. However, any Member so disconnected may seek without restriction to re-connect to the Service.

Support for the Service

3.8 Netbay provides support for the Service through its email address provided on the Netbay Website.

Please note that due to the nature of Member’s internet connectible device and Internet connection technology there is no guarantee of Member’s problem being resolved by the support services.

Netbay and Transmission of Advertisements

3.9 The Member acknowledges and agrees that:

(a) In consideration of the provision of the Service, the Member shall be served banner and motion picture advertisements on Netbay free Wifi Internet Service whilst the Member is using the Service.

(b) The Member must follow the instructions provided by NetBay to connect to the Service.

(c) Netbay may, at its sole discretion, transmit advertisements in any form, including through Netbay free Wifi Internet Service, to the Member whilst the Member is online.

(d) The Member must not do anything, or attempt to do anything, which has the effect of blocking, modifying or otherwise interfering with the serving of the advertising material on Netbay free Wifi Internet Service or otherwise.

(e) Netbay retains the right to terminate the provision of the Service, disconnect the Member from the Service and/or cancel the Member’s registration without notice should the Member tamper with the serving of advertising material on the Service.

Third Party Dealings

3.10 The Member’s dealings with, and interest in, promotions, services or retailers found on or via the Service (“Third Parties”) are, unless explicitly stated, solely between the Member and those Third Parties. Netbay is not responsible for any loss or damage suffered by the Member as a result of such dealings.

User Policy

3.11 The Member acknowledges the operation of the Netbay User Policy, which is posted on the Netbay Website and is designed to ensure that all Members are able to access the Service at all times without network delay or congestion and without any other operating difficulties. Members must comply with the Netbay User Policy, as may be amended by Netbay from time to time.

Other Web Sites

3.12 Netbay may provide hypertext links to other websites and/or resources on the Netbay Website. Netbay does not accept responsibility for these websites and/or resources, nor does Netbay endorse or regulate the content of other web sites and/or resources to which it provides hypertext links.

4. MEMBER’S OBLIGATIONS

Provision of Equipment

4.1 The Member must provide a mobile internet connectible device to facilitate access to the Service. The Member shall be responsible to pay the cost of all fees, costs and charges in relation to such device. Secrecy of Login Particulars

4.2 The Member is solely responsible for the use of the Service. The Member must not disclose the Member’s Log-In Particulars to any other party.

No Assignment or Resale by Member

4.3 The Member must not assign or transfer its rights nor delegate its obligations under this Agreement and must not resell the Service to any other party.

Improper Use of Service

4.4 The Member must NOT use the Service:

(a) to publish, receive or transmit any material that is offensive, abusive, indecent or menacing. This includes but is not limited to material that is illegal, promotes physical harm or injury against any group or individual, contains nudity or pornographic material of any kind, or exploits Minors;

(b) to engage in any activity which breaches any laws, infringes a third party’s rights or breaches any standards, content requirements or codes promulgated by any relevant authority, including the IIA Code of Practice;

(c) in a manner which defames, slanders, harasses or menaces or otherwise interferes with the rights of any other person;

(d) to send unsolicited or unwelcome e-mail messages to any other person;

(e) to infringe on the intellectual property rights of any other party;

(f) to interfere with or disrupt the Service, equipment or other network users in a way that would cause any interruption, damage, impairment or loss of efficiency to the Service, equipment or other network users. Such interferences or disruptions include, but are not limited to, the mass distribution of unsolicited advertising and e-mail, the sending of threatening or harassing e-mail messages, the forgery or attempted forgery of e-mail messages, the propagation of computer viruses or using the network to hack or make unauthorised entry into any other computer or machine accessible from the Service; and

(g) in any other manner which will require Netbay to take any remedial action.

Member is responsible for obtaining advice as to whether the Member’s use (or proposed use) of the Service is in breach of any of the above provisions.

No Commercial Use

4.5 The material and content, or any part of that material and content, contained within or provided by Netbay to the Member in relation to the Service is for the personal use of the Member only and may not be used for commercial purposes or distributed commercially by the Member without the prior written consent of Netbay. The Member’s use of the Service carries with it no proprietary rights in relation to copyright, trademarks or any other intellectual property rights whatsoever of or in Netbay.

Exclusion of Liability

4.6 The use of the Service is the responsibility of the Member and is entirely at the Member’s own risk. To the extent permitted by law, Netbay excludes all liability for any loss or damage suffered by the Member or any other person as a result of the use of the Service.

Content Unsuitable for Minors

4.7 The Member acknowledges that some content accessible through the use of the Service may be unsuitable for Minors. The Member warrants that no Minor will use the Service without the permission and personal supervision of a parent or guardian. Netbay does not accept any responsibility for the use of the Service by a Member who is a Minor.

5. BREACH OF THIS AGREEEMENT

5.1 If a Member is found or is suspected to be in breach of this Agreement, Netbay may, at its discretion, having regard to the circumstances, either:

(a) warn the Member;

(b) suspend the Member’s access to the Service;

(c) cancel the registration of the Member; and

(d) if the circumstances so require, notify and provide all relevant information to any relevant authorities for determination.

Effect of Cancellation of Registration

5.2 Upon the cancellation of the registration of a Member under clause 5.1(c), Netbay may erase any contents, Log-In Particulars, set-up parameters.

6. MEMBER INFORMATION

Non-Disclosure or Transfer of Member Information

6.1 Netbay will hold the Member Information in the strictest confidence. This information shall be used by Netbay to administer connections of Members to the Service.

6.2 Netbay shall not disclose nor transfer without the prior consent of the Member, the personal particulars of the Member Information or any other information that would identify the Member individually to any other person, except:

(a) as required or accepted by law; and

(b) to ensure the performance of contractual obligations with agents to administer connections of Members to the Service.

Profiling of Members

6.3 Netbay may profile the Member’s usage patterns and use of the Internet. This information may be used by Netbay to enable Netbay to target publication of advertising to the Member.

6.4 Netbay will not otherwise disclose nor transfer any Member usage patterns information without the prior consent of the Member or as required or accepted by law.

Access to Member Information

6.5 Netbay shall take all reasonable steps to ensure that the Member Information is secure at all times.

Consent of the Member

6.6 The Member hereby consents to the collection and use of the Member Information for the purposes as outlined in this clause 6.

7. VARIATION OF AGREEMENT

Netbay may vary any of the terms and/or conditions of this Agreement from time to time by publishing such variations on the Netbay Website. The obligation is on the Member to check the Netbay Website to monitor whether any such variations have been made. The Member’s continued use of the Service will constitute the Member’s acceptance of such variations.

8. LIABILITY AND INDEMNITY

No Liability

8.1 Netbay is not liable to the Member or any other party for any loss or damage suffered (whether directly or indirectly) in relation to the use of the Service, including but not limited to the quality, merchantability, suitability, connectivity or fitness of the Service, except to the extent that liability may not by statute be lawfully excluded.

Use by Minors

8.2 The Member agrees that Netbay cannot be held liable for Minors accessing, receiving or transmitting any material that is grossly offensive, abusive, indecent or menacing, including but not limited to material that is illegal, promotes physical harm or injury against any group or individual, contains nudity or pornographic material of any kind, or exploits Minors.

No Liability for Goods or Services purchased

8.3 Netbay is not liable for any goods and/or services purchased by Members whilst online, whether from advertisers on Netbay free Wifi Internet Service or from Third Parties providing goods and/or services on the Netbay Website or through the Service, and any other Third Parties with whom the Member has any dealing. Netbay shall not be liable in respect of any loss suffered by a Member arising directly or indirectly as a result of effecting payment for those goods and/or services on hire.

Indemnity

8.4 The Member hereby indemnifies Netbay in respect of any loss or damage, claim, suit or proceeding against Netbay by any person or relevant authority arising out of the use of the Service by the Member or any person using the Member’s Log-In Particulars.

9. GENERAL CONDITION

Netbay may assign its rights under this Agreement to any other party at its discretion. Any such assignment shall be published on the Netbay Website and shall take effect 14 days after notification of such assignment is first given. Any use of the Service by the Member 14 days after notification is an acceptance by the Member of the assignment.

10. NOTICES

Any notices under this Agreement shall be served on the parties in writing and shall be sent by e-mail to the parties at their respective addresses as specified on the Registration Form.

11. GOVERNING LAW

This Agreement shall be governed by the laws of the State of Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of Victoria in determining any dispute concerning this Agreement.