Xconnect (Aust) Pty Ltd
ABN 50 158 440 861
PO Box 632 Woy Woy NSW 2256
These terms and conditions set out the terms on which We agree to provide the Service to You.
If You do not agree to these terms, You must not use the Service.
Definitions and interpretation
Account Details means the details You provided to register for the Service.
Business Day means a day that is not a Saturday, Sunday or any other day which is a public holiday in Sydney, New South Wales.
Intellectual Property Rights includes each of the following in Australia and throughout the world and for the duration of the rights:
- any patents, innovation patents, utility models, copyrights, registered or unregistered trade marks or service marks, trade names, brand names, domain names, indications of source or appellations of origin, eligible layout rights, plant variety rights, registered designs and commercial names and designations;
- any invention, discovery, trade secret, know-how, computer software and confidential, scientific, technical and product information;
- any other rights resulting from intellectual activity in the industrial, scientific, literary and artistic fields whether industrial, commercial, agricultural or extractive and whether dealing with manufactured or natural products; and
- Any letters patent, deed of grant, certificate or document of title for any thing referred to in paragraphs (a), (b) or (c) of this definition and any medium in which any thing referred to in those paragraphs is stored or embodied.
Xconnect Privacy Statement means the privacy statement located at Xtreme Connection.
Service means the social networking services and any other ancillary services provided by Us through Xtreme Connection together with any other websites owned or operated by Xconnect or any of our affiliates.
Unacceptable Behaviour Policy means the policy set out at the end of this Agreement.
We means Xconnect (Aust) Pty Ltd ABN 50 158 440 861.
Xtreme Connection means the website located at http://xtremeconnect.com.
You are the person named in the Account Details.
- Headings, underlining, marginal notes and indexes are only included for ease of reference and do not affect interpretation.
- A reference to any legislation or legislative provision includes any modifying, consolidating or replacing legislation or legislative provisions from time to time, and includes all regulations, rules and other statutory instruments issued under the legislation.
- A reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time.
- Words denoting the singular number include the plural, and vice versa.
- Where any word or phrase is given a defined meaning any other grammatical form of that word or phrase has a corresponding meaning.
- If any part of this Agreement is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down so as to be valid and enforceable. If this is not possible, and that part does not go to the essence of this Agreement, that part will be severed from this Agreement and the rest of this Agreement continues to have full force and effect so as to give effect to the intention of the parties.
- We agree to provide the Service to You from the date You accept the Agreement, complete the sign-up and account activation process until You delete Your account.
- You acknowledge that where You upload, download or otherwise cause information to be communicated via the Service all costs (including but not limited to the costs of connection to and use of a Carrier Service as that term is defined in the Telecommunications Act 1997) associated with the communication (Your Costs) are at Your sole expense and Xconnect assumes no liability and makes no representations impliedly or expressly to assume or contribute in any form towards any Your Costs or any other costs You may incur through Your use of the Service.
- We do not include archiving or back-up services in the Service. For example if website data and content as stored on the server becomes corrupted for any reason We are not responsible for restoring a correct version of that data or content. You are responsible for ensuring that You maintain any necessary secure and reliable copies of all data and content that You store, share or otherwise make available using the Service.
- You agree that We may establish limits concerning use of the Service including, without limitation, each of the following:
- The maximum number of communications or files that may be sent from or received by an account in any period.
- The maximum size of communications or files that may be sent from or received by an account.
- The maximum number of times and duration You may access the Service in a given period of time.
- The maximum size of Your account.
- Different limits may apply for mobile phone services.
- In our sole discretion, We may not, process any communication or file that is larger than 20MB.
- We reserve the right at all times to remove or refuse to host, store, distribute or communicate any data or information on the Service.
- We reserve the right to access, read, preserve, and disclose any information as We reasonably believe is necessary to do any of the following:
- satisfy any applicable law, regulation, legal process or governmental request;
- enforce this Agreement, including investigation of breaches or potential breaches of it;
- detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam);
- respond to user requests; and
- protect the rights, property or safety of Xconnect, its users and the public.
- You must:
- promptly notify Us if You believe or suspect that the Service has been compromised or is being used in a manner that breaches this Agreement;
- regularly check the email address provided to Us on sign-up for messages about the Service (or, if You have arranged for emails to be forwarded to an alternate email address, You must check that alternate email address);
- provide current, accurate identification, contact, and other information that may be required as part of the sign-up process or continued use of the Service;
- ensure Your use of the Service complies with the Unacceptable Behaviour Policy;
- maintain the confidentiality of Your account password and accept full responsibility for all activities that occur with Your account. Where the current account details or password are provided, We are entitled to assume that the access is by You, or authorised by You, and You indemnify Us completely against any claim of loss or damage that results from wrongful, fraudulent or other access (using the correct account details or password) to Your account;
- only use the Service for personal non-commercial purposes; and
- respect the privacy and personal information disclosed by other users and use any personal information disclosed for the purpose for which is was disclosed.
- You must not do, and You must not authorise or encourage any third party to do, any of the following:
- prevent other account holders from using the Service;
- use the Service for any illegal, fraudulent or inappropriate purpose;
- use the Service in any other way that violates any of the items as described in the Unacceptable Behaviour Policy;
- alter, remove or otherwise interfere with any permissions applied by another user;
- interfere with or construct Your own system to access the information on the Service; or
- act in any way that violates this Agreement.
- You acknowledge and agree to each of the following:
- the Service is only provided to You for so long as You continue to have a current and valid account;
- the Service may be subject to technical limitations such as downtime for maintenance and third party service availability;
- the Service may include user-targeted, content-targeted advertisements and/or non targeted advertisements or other related information, as described in the Xconnect Privacy Statement;
- the Service is provided on an AS IS and AS AVAILABLE basis and We make no warranties or guarantees in respect of uptime for Your data, content or the Service;
- We expressly assume no responsibility for, without limitation, backing up Your data, damage to Your data;
- due to the nature of the Service, We do not promise that it will be continuous, accessible at all times or fault-free; and
- We reserve the right to modify, suspend or discontinue any part of the Service with or without notice at any time and without any liability to You.
User general content
- Xtreme Connection is a website which enables users to submit user generated content (UGC) such as comments and photos.
- You agree and warrant that in submitting UGC to Xtreme Connection that You will not post any abusive, obscene, vulgar, defamatory, hateful, threatening, sexually-orientated or any other material that may violate any applicable laws or the rights of any person.
- If You are found to have engaged in conduct that in our opinion falls within the conduct set out in clause 4.2 above, We may immediately and permanently ban You from using Xtreme Connection (and may inform Your service provider). The IP address of all UGC may be recorded to aid in enforcing these conditions. You agree that the webmaster, administrator and moderators of Xtreme Connection have the right to remove, edit, move or close part of Xtreme Connection at any time should they see fit. Xconnect is not obliged to use any UGC.
- While the administrators and moderators of Xtreme Connection will attempt to remove or edit any generally objectionable material as quickly as possible, it may not be possible to review every UGC. Therefore, You acknowledge that all UGC made to Xtreme Connection express the views and opinions of the author and not the administrators, moderators or webmaster and hence Xconnect and its agents and licensees will not be held liable for any action arising from the UGC.
- You acknowledge and agree that any advice, idea, recommendation or similar such UGC provided to You or posted by other users of Xtreme Connection is not an endorsement or approval of that information by Xconnect. Nor are users and their UGC to be construed as affiliated with Xconnect through their use of Xtreme Connection.
- You acknowledge and agree that Your use of any UGC is entirely at Your own risk.
Links to third party websites
- Xtreme Connection contains hyperlinks and other pointers to Internet websites operated by third parties.
- These linked websites are not under the control of Xconnect and Xconnect is not responsible for the contents of any linked website or any hyperlink contained in a linked website.
- Xconnect provides these hyperlinks to You as a convenience only, and the inclusion of any link does not imply any endorsement, affiliation or approval of the linked website by Xconnect.
- You acknowledge and agree that You link to any such website entirely at Your own risk.
- You may cancel Your use of the Service or terminate this Agreement without cause at any time by deleting Your account at Xtreme Connection. A terminated account may continue to exist for up to two business days before the cancellation takes effect.
- We may at any time and for any reason, by notice to You by email, terminate the Service, terminate this Agreement, or suspend or terminate Your account. On termination, Your account will be disabled, You will have no access to and no right to use the Service, and You will not be granted access to Your account, or any files, or other information contained in Your account although residual copies of information may remain in our system.
- Termination of this Agreement will not be effective in relation to disputes that arose prior to the date of termination.
Intellectual Property Rights
- You acknowledge that We own all right, title and interest in and to the Service, including without limitation all Intellectual Property Rights, and the Intellectual Property Rights are protected by intellectual property laws. Accordingly, You must not copy, reproduce, alter, modify, reverse engineer or create derivative works from the Service. You must not use any robot, spider, other automated device, or manual process to monitor any content from, hosted by or that is otherwise available using the Service. The Intellectual Property Rights include rights to the Service developed and provided by Xconnect, all software associated with the Service and the brand features. The Intellectual Property Rights do not include third-party content used as part of Service, including the content of communications appearing on the Service.
- We do not claim any ownership in any of the content, including any text, data, information, images, photographs, music, sound, video, or other material, that You upload, transmit or store in Your account. You grant to Us and to all other users of the Service, a licence to use that content, in connection with the Service. You also agree that, in accessing or using content that another user of the Service uploads, transmits or stores, You must agree to respect any conditions that apply to that content, having regard to that userÕs classification of that other content, received by You directly from that user. Further, You grant to Us a non-exclusive, royalty-free, irrevocable licence to use, reproduce any content that You introduce to the Service (and warrant that You have the right to do), for the following purposes:
- Promotion or marketing of the Service;
- Technical development or data testing of the Service;
- Monitoring or investigation of activity using the Service;
- Compliance with legal or regulatory obligations;
- Provision of indexing, searching or cataloguing facilities or services; and
- Any other purposes notified to You in these terms.
- You must not circumvent, or attempt to circumvent, any Technological Protection Measure that is applied to any other user’s content (whether applied by Us or another person). You must not alter, remove or otherwise interfere with any Rights Management Information applied to another user’s content that is made available through the Service. “Rights Management Information” and “Technological Protection Measure” have the same meaning as those terms as defined in the Australian Copyright Act 1968(Cth).
- Where You are not the author of content, You warrant to Xconnect and to each user of that content that, to the extent necessary to allow use of the content in accordance with the Service, the author of the content has consented to any acts of omissions that are allowed by the Service that would, but for the consent, amount to an infringement of the author’s moral rights under the Australian Copyright Act 1968(Cth).
As a condition to using the Service, You agree to the terms of the Xconnect Privacy Statement issued or updated during the term of this Agreement.
Suspension of Service/Take Down Notice
- If We believe on reasonable grounds (including from a reasonably verifiable third party (Complainant)) that You have breached Your obligations under the Agreement, We may suspend Your access immediately while an investigation occurs. You agree to fully co-operate with any investigation conducted by Xconnect.
- If You believe, on reasonable grounds, that another user of the Service is using or distributing content that breaches Your rights, or that is in breach of Agreement including the Unacceptable Behaviour Policy, You may give notice to Us (Take Down Notice). A Take Down Notice must be in writing and have all of the following information:
- Description of the works claimed to be infringed.
- Description of the allegedly infringing works to be removed, or to which access is to be disabled, (Infringing Material) including its location on the Service.
- A statement in good faith that the use of the Infringing Material is not authorised by the copyright owner, the ownerÕs representative or the Copyright Act or otherwise contravenes a legal right (identifying the legal right).
- Sufficient information to permit Us to contact the Complainant.
- A signed statement that the Complainant is authorised to act on behalf of the owner of the legal rights concerned.
- On receipt of a Take Down Notice from another person, in connection with content that You own, host or distribute, We must use our reasonable endeavours to determine if the use of the Infringing Material is permitted under the provisions of the Copyright Act 1968 (Cth), under licence or otherwise. If this is not the case, We will remove, block access to or otherwise disable use of or access to the Infringing Material.
- Within 3 working days of receipt of a Take Down Notice, We will act to do each of the following:
- Remove or disable access to the Infringing Material. Every effort will be made to contact You to seek voluntary take down of the Infringing Material. If this is not successful, We will act to remove or disable access to the Infringing Material. You acknowledge and agree that We are authorised to take all necessary steps, including access to Your account or content, in order to remove or disable access to the Infringing Material;
- Notify the Complainant that We have removed or disabled access to the Infringing Material; and
- Notify You that the Infringing Material has been removed or access has been disabled.
Warranties and indemnity
- You warrant to the best of Your knowledge that the materials and information provided to Xconnect for the purposes of providing the Services:
- are true, correct and current;
- are able to be disclosed by You;
- do not infringe any rights of any third party;
- are able to be legally provided to Us and its disclosure does not breach any law or any obligation (whether of confidence or otherwise) owed to any person; and
- You have all necessary right, power and authority to enter into the Agreement.
- You acknowledge that You have not relied upon or been induced by any representation by Us and We make no warranty or representation as to:
- the results that may be obtained through the Service;
- the accuracy, reliability or otherwise of any information obtained through the Service;
- the Service or network being uninterrupted, timely or error free; or
- whether Your use of the Service is legal.
Limitation of liability
- To the extent permissible by law We exclude any liability:
- for any failure of performance, error, omission, interruption, deletion, defect or delay in transmission or operation; or
- for any injury, loss or damage arising out of provision of the Services.
- We expressly disavow any and all representation, warranties and claims as to, without limitation, fitness for purpose, merchantability or quality of any goods and service which may be displayed in any advertising on the Service and, to the extent permitted by the law, You acknowledge that You have no entitlement to remedy or claim against us in respect of the accuracy, sufficiency or otherwise of any advertising or goods or services promoted or purchased through the Service.
- You expressly agree that use of the Service is at Your own risk. To the extent allowed by law, our liability for breach of a term implied into this Agreement by any law is excluded.
- We give no warranty in relation to the Service provided or supplied. Under no circumstances are We or any of our carriers or suppliers liable or responsible in any way to You or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the Service including its form, content and timeliness of delivery, including, without limitation, for and in relation to any of the following:
- any Service supplied to You;
- any delay in supply of the Service;
- any failure to supply the Service;
- any technical or non-technical failure; or
- any content or information accessed via the Service with or without Your authorisation.
- The Australian Competition and Consumer Act 2010 and certain State and Territory legislation may imply certain conditions and warranties into the Agreement. To the extent permitted by law those conditions or warranties are expressly excluded. Where they cannot be excluded, our liability (if any) arising from the breach of those conditions and warranties is limited, in our sole discretion, to the supply of the Service again or cost of re-supplying the Service again.
Any dispute, controversy or claim arising out of or in connection with this Agreement, including (without limitation) any question regarding the existence, validity, breach or termination of this Agreement must first be the subject of arbitration, administered by the Australian Commercial Disputes Centre Limited (ACDC) conducted and held in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law in force at the date of this Agreement.
The arbitrator must be agreed between the parties from a panel suggested by ACDC or failing agreement, an arbitrator appointed by the Secretary General of ACDC.
The arbitration must be conducted and held in accordance with and subject to the laws of New South Wales.
Any arbitration proceedings must be held in Sydney.
Service of Notices
A notice, demand, consent or communication under this Agreement (Notice) must be:
- in writing and in English directed to the recipient's address for Notices specified in this agreement, as varied by any notice; and
- hand delivered or sent by pre-paid post or emailed to the following addresses:
- Xconnect - PO Box 632 Woy Woy NSW 2256
Effective on Receipt
A Notice given in accordance with clause 13.1 takes effect when received (or at a later time specified in it), and is taken to be received:
but if the delivery, receipt or transmission is not on a Business Day or after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the Business Day after that delivery, receipt or transmission.
- if hand delivered, on delivery;
- if sent by prepaid post, two Business Days after the date of posting (or seven Business Days after the date of posting if posted to or from outside Australia);
- if sent by email, when the sender's email system generates a message confirming successful transmission of the notice or by the sent email not bouncing back from the recipients server to the sender,
Joint and Several Liability
Every covenant or provision in this Agreement applying to or binding, or a right conferred on, more than one person binds or benefits them jointly and each of them severally.
Any consent or approval referred to in, or required under, this Agreement from any party may be given or withheld, or given subject to any conditions, as that party in its absolute discretion thinks fit.
This Agreement may be executed in any number of counterparts and all of those counterparts taken together constitute one and the same instrument. Execution of facsimile counterparts, and facsimile copies of executed counterparts, is sufficient for this purpose.
A party must not assign or novate any right or obligation under this Agreement without the other partyÕs prior written consent.
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Each party must do, sign and deliver and must procure that each of its employees and agents does, signs, and delivers, all acts, , things and documents reasonably required of it by notice from another party to effectively carry out and give full effect to this Agreement and the rights and obligations of the parties under it.
This Agreement and any annexures is the entire agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of this Agreement. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Agreement.
- If any part of this Agreement is void or unenforceable in any jurisdiction, then for the purposes of that jurisdiction if possible, that part is to be read down so as to be valid and enforceable.
- If clause 14.8(a) is not possible, and that part does not go to the essence of the Agreement, that part will be severed from this Document and the rest of this Document continues to have full force and effect.
Unless provided for in any other manner, the time for a party to comply with an obligation is of the essence.
Governing Law and Jurisdiction
The law in force in New South Wales governs this Agreement. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts that may hear appeals from those courts in respect of any proceedings in connection with this Agreement. Each party irrevocably waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum where that venue falls within New South Wales.
Unacceptable Behaviour Policy
- Send, upload, distribute or disseminate or offer to do the same with respect to any unlawful, defamatory, harassing, abusive, fraudulent, infringing, obscene, or otherwise objectionable content.
- Intentionally distribute viruses, worms, defects, Trojan horses, corrupted files, hoaxes, or any other items of a destructive or deceptive nature.
- Transmit content or use the Service that in the opinion of Xconnect acting reasonably may be considered harmful to or inappropriate for minors.
- Impersonate another person (via the use of an email address or account) or otherwise misrepresent Yourself or the source of any email or communication.
- Use Xconnect to violate the legal rights (such as rights of privacy and publicity) of others.
- Promote, encourage or participate in illegal or unlawful activity.
- Interfere without cause in the reasonable enjoyment by other Xconnect users of the Service.
- Create multiple user accounts, create user accounts by automated means or otherwise engage in false, fraudulent, deceptive or misleading conduct in respect of user identity.
- Sell, trade, resell, transfer or otherwise attempt to dispose of a Xconnect account, or otherwise exploit any content on the Service for any unauthorised commercial purpose.
- Modify, adapt, translate, or reverse engineer any portion of the Service.
- Remove any copyright, trade mark or other proprietary rights notices contained in or on the Service.
- Reformat or frame any portion of any web page that is part of the Service.
- Create third party software without the permission of Xconnect.
- Misrepresent Xconnect or the Service as being associated with content with another website, web service, software service, software or other service without XconnectÕs prior permission.
You are prohibited from generating or facilitating unsolicited commercial communication (Spam). Such activity includes, but is not limited to
- sending communication in violation of Australia's Spam Act 2003 or any other applicable anti-Spam law;
- imitating or impersonating another person or email address or Xconnect account, or creating false accounts for the purpose of sending Spam;
- data mining any web property (including Xconnect) to find email addresses or accounts;
- sending unauthorized mail or communication via open, third-party servers;
- sending emails or communication to users who have requested to be removed from a mailing list or Your contact list;
- selling, exchanging or distributing to a third party the email addresses of any person without such person's knowing and continued consent to such disclosure; and
- sending unsolicited emails or communications to significant numbers of email addresses or accounts belonging to individuals and/or entities with whom You have no pre-existing relationship.
- You must promptly notify Xconnect of any actual or suspected breach of security related to the Services, including, but not limited to, unauthorised use of Your password or account.
- You are responsible for the security of Your password, login or access details or other security measures. You are responsible for all electronic communications and other information entered through or under user IDs, passwords, access numbers or account numbers. You must not disclose any security measures to any other person and must keep those details confidential.
- To help ensure the security of Your password or account, please sign out from Your account at the end of each session.