Terms & Conditions

Terms and Conditions of Trading

1. INVOICES AND PAYMENT
Progressive upfront payment invoices for work will be issued before commencement of the work unless otherwise specified. KOBO Australia’s trading terms require full payment of invoices, unless alternative written agreements have been made with management before commencement of work. All invoices will require payment on the same terms set out in this agreement.

2. TITLE OF WORK
Each of the products and services provided by KOBO Australia to its customers has particular Title issues:
2.1. Graphic Design, HTML and CSS Coding:
2.1.1. Any graphic design images produced for the websites that do not include 3rd party rights (such as stock photography) will be assigned to the site owner at the end of the development and on full payment for all agreed services as per signed quotations and / or authorised work. KOBO Australia assigns full title to the finished produced works automatically on their acceptance by its customers and only on full payment for said works at the end of the development. Licences granted under this provision are in perpetuity (or for the longest time permitted by law).
2.1.2. HTML code and CSS Code produced and as accessible via the browser view source function, will be assigned to the site owner at the end of the development and on full payment for all agreed services as per signed quotations and / or authorised work. KOBO Australia automatically grants a non-exclusive, royalty free, assignable right and licence to use, copy, modify and distribute the code as developed for the website, upon signed release documents on completion of the development by the customers and once full payment has been received by KOBO Australia as per signed quotations and / or authorised work. All such code can be supplied on media (e.g. Disc) as requested by customer and any charges pertaining to providing such media will be charged to customer as part of delivery of said media. Licences granted under this provision are in perpetuity (or for the longest time permitted by law).
2.1.3. All content provided and adapted to the website will be automatically assigned to the site owner at the end of the development and on full payment for all agreed services as per signed quotations and / or authorised work, where such work has been added to or altered by KOBO Australia. Where the content is used as supplied no rights to the content title will have been waived by the customer and they will retain such copyright. Licences granted under this provision are in perpetuity (or for the longest time permitted by law).
2.1.4. Database and scripting language programming developed in conjunction with the development of a web site or integrated into a website are provided as part of a non-exclusive licence for use by the customer solely in conjunction with the specific website provided. KOBO Australia retains the rights in the code, coding methodologies and functionality and its use in other applications of similar nature (see 2.5.1). No such code can be resold as a product in its own right and can only be transferred as part of a sale of business assets. The non-exclusive licence for such code is granted automatically upon signed release documents on completion of the development by the customer and once full payment has been received by KOBO Australia for said development as per signed quotations and / or authorised work. Licences granted under this provision are in perpetuity (or for the longest time permitted by law).
2.2. Programming Code, Database development
2.2.1. As part of a website development. Refer Section 2.1.4 (above)
2.2.2. Project Development code and databases are developed for customers under a non exclusive licence, for the sole use as specified in the development agreement. Such licence is granted after completion of the project and on full payment for all agreed services as per signed quotations and / or authorised work. KOBO Australia retains the rights in the code, coding methodologies and functionality and its use in other applications of similar nature (see 2.5.1). No such code can be resold as a product in its own right and can only be transferred as part of a sale of business assets. Licences granted under this provision are in perpetuity (or for the longest time permitted by law).
2.2.3. Application Service Provision / Rented Software. All code developed and provided by KOBO Australia under Application Service agreements, are covered by specific software / product agreements. The customers retains rights to the data / content used in the application and is subject to all terms and conditions as per the relevant agreements.
2.3. Multimedia Development
2.3.1. KOBO Australia assigns full title to the finished produced works (multimedia CD’s, online or other presentations) automatically on their acceptance by its customers and only on full payment for said works at the end of the development. Licences granted under this provision are in perpetuity (or for the longest time permitted by law). This excludes any rights to 3rd party audio, video or stock imagery as acquired under the agreement for the customer, such title rights being covered by the relevant agreements of those providers.
2.4. Unused Work
2.4.1. KOBO Australia retains the rights in all works produced partially or fully during the development process that are not chosen to be used for any reason whatsoever.
2.5. Background Technology
2.5.1. KOBO Australia is the owner, licensee or sublicensee of various pre-existing development tools, routines, subroutines and/or other programs, data and materials that Developer may use or implement in the development of any websites or similar developments including Graphic Design, Images, HTML, CSS, Browser based software applications and Multimedia. The Background Technology includes items in this list but is not limited to such. KOBO Australia retains all right, title and interest in and to the Background technology, and unless otherwise specified in any document or agreement grants non-exclusive licences to use the Background Technology only to the extent necessary to use the materials or sites produced. No customer is authorised to sell or license any background technology or rights thereto to any other person or firm.

3. OVERDUE ACCOUNTS
Services will not be supplied to customers with overdue accounts until such time as their account is brought up to date. We reserve the right to charge overdue account fees not in excess of the current Westpac Bank (credit) card rate. KOBO Australia will have the right to retain possession of any work produced and materials which are the property of the customer until such time as the account is paid within the agreed terms of trading. In the event of non-payment of an account, the customer agrees that KOBO Australia will be entitled to claim all legal costs, interest and damaged incurred by it in recovering debt.

4. ACCEPTANCE AND CANCELLATIONS
Quotations will be accepted by the customer upon signature of the KOBO Australia Quotation form or by confirmation in writing. After a quotation is accepted by the customer, cancellation will incur a fee. The cancellation fee will be calculated on the percentage of work carried out to the date of cancellation, such calculation to be in the sole discretion of KOBO Australia, based on its hourly charge rate at the time.

5. QUOTATIONS
All quotations submitted by KOBO Australia will be valid for no longer than fifteen (15) days from the date of quotation, unless otherwise specified by KOBO Australia. A quotation will only become binding upon KOBO Australia on receipt by it of the “KOBO Australia Quotation” and “ KOBO Australia Terms and Conditions of Trading” signed by the customer. Signature of these forms by the customer will be unconditional acceptance by the customer of both the Quotation and Terms and Conditions of Trading. Confirmation in writing by the customer and instructions to proceed with work will also be acceptance of these terms.

6. ALTERATIONS
Should a customer request alterations either:
1. after work has commenced in accordance with the original brief received by KOBO Australia; or
2. after approval by the customer of the final work produced, the customer agrees to pay a fee, relative to the complexity of the alterations, and time and materials necessary to effect the alterations. Determination of the complexity of cost of the alterations will be at the sole discretion of KOBO Australia. Calculations will be based on actual expenses and based on its hourly charge rate at the time.
3. KOBO Australia will at all times attempt to provide notice of items that are outside of the scope of works agreed to and provide warning and seek approval to conduct such work. KOBO Australia will not initiate works without authorisation to do so by its customers.

7. CORRECTIONS AND APPROVALS
Whilst every effort is made to ensure correctness, the final responsibility for checking the content, layout and spelling remains with the customer. Prior to the release of any development by KOBO Australia, customers will be required to provide written approval of release, which verifies they have checked the correctness of the development and authorise its release. No verbal approvals will be accepted.

8. CLAIMS LIMIT
Any claim for faulty workmanship is to be raised within seven (7) days of the provision of the work to the customer and prior to receipt of written confirmation by signature of the disclaimer by the customer. Any claim is limited to resupply of the work on the part of KOBO Australia, with no liability for consequential or any other loss.

9. COMPLETION TIME
Any completion date provided in a Quotation is an estimate only. KOBO Australia services are subject to provision of a clear written brief from the customer, and KOBO Australia are not liable for late delivery or non-delivery of information or instructions by the customer.

Terms Internet Services

1. DEFINITIONS & INTEPRETATION
1.1 Terms capitalised throughout this Agreement have the meanings set out in Clause 21 of this Agreement.
1.2 This Agreement will be interpreted in accordance with the provisions of Clause 21 of this Agreement.

2. GENERAL
2.1 The agreement made between us on these Terms commences on the date KOBO Australia accepts Customer’s application for the services.
2.2 Acceptance of Customer’s application for services is deemed to be the date KOBO Australia creates Customer’s account on its servers for use by Customer.
2.3 The Service is provided on an “as is, as available” basis. KOBO Australia gives no warranty, express or implied, for the Web Hosting Services provided.
2.4 KOBO Australia will not be held liable for reimbursement for losses of income due to disruption of services by KOBO Australia or its providers beyond the fees paid by the customer to KOBO Australia for services.
2.5 We may vary these terms, our pricing for any service, or the terms of the operation of the Service, at any time by updating this document on our website, by email or in writing. All changes will become effective upon publication of the changes.
2.6 This agreement is governed by the laws in place in the State of Queensland, Australia.

3. PROVISION OF SERVICES
3.1 While KOBO Australia shall make every reasonable effort to protect data stored on our Server(s), or 3rd Party Servers, KOBO Australia is not responsible for Customer’s data, files or directories residing on KOBO Australia’s or 3rd Party’s equipment. The customer is solely responsible for maintained data, file and directory structure backups.
3.2 We must perform scheduled maintenance to servers from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the service to be offline for more than 30 minutes we will notify at least 48 hours in advance of the maintenance via email.
3.3 We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Service to be offline for more than 30 minutes, we will notify via email after the maintenance has been completed.
3.4 We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, you should be prepared to upload your data to your web site. You must maintain a recent copy of your data at your premises at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered from our backups.
3.5 You agree to KOBO Australia’s use of spam and virus filters which may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. You agree that we will not be liable for any loss or damage resulting from the use of spam or virus filters.
3.6 The Service is provided by KOBO Australia from its data centres in Australia and USA. KOBO Australia will determine in its absolute discretion from time to time the data centre location from which your Service is provided. KOBO Australia reserves the right to migrate your web site to a new operating system platform if our operating system supplier ceases to provide support for the legacy operating system, or if the server from which the service is provided fails or, in KOBO Australia’s opinion becomes unreliable. KOBO Australia will use reasonable endeavours to notify you via the contact details in our database but does not take any responsibility for web site failure if you have failed to keep your contact details up-to-date or if you have not checked the operation of your web site post-migration and notified us of any required changes to the web site configuration.
3.7 In contracting with KOBO Australia for the Services, the Customer obtains no rights to the hardware and other infrastructure and facilities used by KOBO Australia to deliver the Service.

4. CHARGES AND PAYMENT
4.1 The customer will pay the charges for the provision of the services at the rate and in the manner specified on the KOBO Australia Web Site or as otherwise agreed between the parties in writing.
4.2 The charges will be based on prices specified in the price list located on the KOBO Australia Web Site, or as provided in the written quotation and current from time to time.
4.3 In the event that:
1. KOBO Australia is required to perform the Services in circumstances other than those expressly or reasonably anticipated; or
2. there is a change in the timing or complexity of the Services; and such circumstances are not the result of a breach of this Agreement by KOBO Australia, then KOBO Australia will notify the customer of any additional fees payable by the customer as a result of such changes.
4.4 Payment of the Charges will be due in advance of provision of the Services unless otherwise agreed by KOBO Australia in writing.
4.5 KOBO Australia reserves the right to charge the customer interest on any outstanding amounts under this Agreement.
4.6 Where the Services include domain name registration:
1. KOBO Australia will raise an invoice for payment to the appropriate naming authority for the hosting of that name specifying the date by which payment by the customer must be made; and
2. failure for any reason by the customer to make payment before the specified date will entitle KOBO Australia to release the customer ‘s domain name without any liability for loss suffered by the customer howsoever arising.

5. MONITORING OF BANDWIDTH
5.1 The customer ‘s subscription to the Services covers permitted bandwidth (monthly transfer limit) as stated on the customer’s Written Quotation/Agreement.
5.2 KOBO Australia reserves the right to:
1. monitor the customer’s monthly bandwidth usage;
2. implement restrictions on available bandwidth in order to protect all Services using the KOBO Australia Servers from time to time when necessary; and
3. make additional charges for usage above the limit at the prevailing rate as stated in the agreed quotation.

6. DOMAIN NAME REGISTRATION
6.1 The customer is responsible for checking the accuracy and correct spelling of the customer’s domain name and its ownership entitlement as identified on KOBO Australia documents sent to the customer and will notify KOBO Australia within 24 hours of any corrections required.
6.2 Upon registration of the customer’s domain name, the customer shall at all times comply with the terms and conditions for the registration of domain names published by the relevant naming authority and generally to the terms and conditions of any such authority having similar force and to which the customer may become subject as a result of the provision of the Services by KOBO Australia.
6.3 The customer agrees to indemnify KOBO Australia, its employees and agents and shall hold them harmless from and against all loss, penalties, damages, liability, claims or expenses whatsoever arising from any claims by third parties as to ownership or other rights to use a domain name where one has been registered by or transferred to KOBO Australia or arising in any way by the customer infringing (whether innocently or knowingly) third party rights.

7. UNAUTHORISED USE BY CUSTOMER
7.1 KOBO Australia enforces ‘Good Netiquette’ practice and all customers using Services and facilities offered by KOBO Australia are obliged to comply with this Code of Practice and KOBO Australia’s Acceptable Use Policy.
7.2 The customer must comply with any directions regarding the Services given to the customer from time to time by KOBO Australia, including, but not limited to procedures imposed from time to time to prevent unauthorised use of or access to the Services.
7.3 The customer must not engage in or otherwise permit, any unauthorised use of KOBO Australia facilities or Services by the customer, its employees, contractors, customers or third parties and in particular, the customer must not:
1. permit any third party to use or to access any of the Services for any purpose without the prior written consent of KOBO Australia;
2. serve information in the form of text or graphics from KOBO Australia Servers which may:
1. directly or indirectly lead to a contravention of any law; or
2. bring KOBO Australia into disrepute or call into question any action taken by KOBO Australia on the customer’s behalf;
3. use the KOBO Australia Servers to either send bulk unsolicited e-mail, or append a domain name or e-mail address which has its mx record or DNS pointing to the KOBO Australia Servers to such bulk unsolicited e-mail; or
4. use or attempt to use protocols, procedures or scripts which in the unfettered opinion of KOBO Australia have the effect of degrading or the potential to degrade the Services and facilities offered by KOBO Australia.
7.4 The customer agrees to immediately inform KOBO Australia if it becomes aware of any unauthorised use of all or any of the Services by any person.

8. SUSPENSION OF SERVICES
8.1 KOBO Australia may suspend access to the Services:
1. to preserve data and integrity;
2. if there is a security breach; or
3. if there is a malfunction in the Services.
8.2 KOBO Australia reserves the right to terminate or suspend the Services to the customer indefinitely and without refund or compensation in the event that:
1. the Services are used, or appear to KOBO Australia to be intended to be used, by a customer or a customer of the customer in a manner deemed inappropriate by KOBO Australia;
2. the provision of the Services is likely to expose KOBO Australia to any liability as a result of a breach of any law or any third party rights; or
3. the customer otherwise breaches this Agreement.
8.3 Suspension of Services by KOBO Australia will continue until the problem or breach is rectified or until otherwise agreed.
8.4 KOBO Australia will not be liable to the customer, its employees, contractors, customers or agents as a result of taking the action referred to in this Clause 8 where such action is taken on a view which is formed on a reasonable basis by KOBO Australia.

9. LOSS OF DATA
9.1 KOBO Australia will take all reasonable steps to safeguard the KOBO Australia Servers and the data contained therein, however KOBO Australia will not be responsible for any loss of customer data stored or intended to be stored on the KOBO Australia Servers or back-up devices and the customer will not be entitled to any form of compensation from KOBO Australia in the event of loss of data.

10. INTERRUPTIONS TO SERVICE
10.1 KOBO Australia takes no responsibility for any delay, malfunction, non performance, or other degradation of performance of any of the Services caused by or resulting from any alteration, modifications or amendments due to changes and specifications requested or implemented by the customer whether or not beyond the Services already supplied.
10.2 In the event of total systems failure resulting in the disruption of service to the Internet from KOBO Australia Servers, KOBO Australia will endeavour to repair and reinstate the service within 24 hours of detection depending on the severity of the failure.
10.3 If failure is caused by the customer or any agent or customer of the customer to whom access to KOBO Australia Servers was given, the customer shall pay all costs to reinstate and/or repair the customer server.

11. CUSTOMER DELIVERABLES
11.1 The customer will provide KOBO Australia with the Customer Deliverables in accordance with the time frames agreed between the parties.
11.2 KOBO Australia will not be responsible for any deficiency or alleged deficiency in the Services which is attributable to:
1. incorrect information provided by the customer; or
2. failure by the customer to provide the Customer Deliverables or other relevant information.
11.3 The customer will have no remedy against KOBO Australia in relation to any delay or failure to complete the Services, where such delay or failure is the direct or indirect result of any act or omission of the customer or a breach by the customer of this Agreement.

12. INDEMNITY
12.1 The customer warrants that:
1. It owns, or has a licence to use the Intellectual Property Rights in any Customer Deliverables provided to KOBO Australia, including any trade marks;
2. KOBO Australia’s provision of Services to the customer will not infringe any third party’s Intellectual Property Rights.
12.2 The customer indemnifies KOBO Australia against all expenses, losses, damages and costs (on a solicitor and own basis and whether incurred by or awarded against KOBO Australia) which KOBO Australia may sustain or incur as a result, whether directly or indirectly, of:
1. any breach of this Agreement or the warranties contained herein by the customer including, but not limited to, a breach, in respect of which KOBO Australia exercises an express right to terminate this Agreement; and
2. any claim by any person arising out of a breach of any of the warranties contained in Clause 12.1.

13. IMPLIED TERMS
13.1 Subject to Clause 13.2, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
13.2 In the event that a condition or warranty cannot be excluded by law, the liability of KOBO Australia for any breach of such condition or warranty will be limited, at the option of KOBO Australia, to:
1. the supplying of the Services again; or
2. the payment of the cost of having the Services supplied again.

14. LIMITATION OF LIABILITY
14.1 KOBO Australia will be under no liability to the customer, or any customers of the customer, in respect of any loss of profits or data, consequential loss or damage which may be suffered or incurred or which may arise directly or indirectly in respect of:
1. goods or Services supplied pursuant to this Agreement;
2. failure or omission on the part of KOBO Australia to comply with its obligations under this Agreement; or
3. supply of Customer Deliverables by the customer which are incomplete, inaccurate, illegible, out of sequence, in the wrong form or arising from late arrival or non-arrival or any other fault by the customer.
14.2 The customer warrants that it has not relied on any representation made by KOBO Australia which has not been stated expressly in this Agreement.
14.3 The customer will at all times indemnify and hold harmless KOBO Australia and its officers, employees and agents (‘those indemnified’) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:
1. a breach by the customer of its obligations under this Agreement; or
2. any wilful, unlawful or negligent act or omission of the customer.

15. CONFIDENTIAL INFORMATION
15.1 Each party will use the Confidential Information of the other party only for the purposes of this Agreement.
15.2 Neither party to this agreement will disclose to any third party (other than its employees or contractors in their capacities are such) any Confidential Information of the other party which information is not lawfully in the public domain.
15.3 Any lawfully required disclosure of Confidential Information to any governmental or other controlling body will be limited to essential information only and, if possible, made subject to a confidentiality order.

16. TERM
16.1 The minimum contractual period for the provision of the Services by KOBO Australia is 12 months from the first day that the Services are made available to the customer (‘Initial Term’), or as specified as part of individual quotations and/or agreements.
16.2 Subject to Clause 16.3, following the expiry of the Initial Term, this Agreement will continue until terminated by either party pursuant to Clause 17 of this Agreement.
16.3 The customer may elect to terminate this Agreement after the Initial Term by providing KOBO Australia with written notice to that effect one month prior to the expiry of the Initial Term.

17. TERMINATION
17.1 Either party may terminate this Agreement with immediate effect by giving notice to the other party if:
1. the other party breaches any of its obligations under this Agreement and fails to remedy that breach within 14 days after receiving notice requiring it to do so; or
2. any event referred to in Clause 17.2 occurs.
17.2 Each party will notify the other immediately if:
1. it ceases to carry on business;
2. it disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business;
3. any step is taken to enter into any arrangement between that party and its creditors;
4. any step is taken by a mortgagee to enter into possession or dispose of the whole or any part of its assets or business; or
5. any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a liquidator, a provisional liquidator or other like person of the whole or any part of its assets or business.
17.3 Termination of this Agreement will not affect the accrued rights or remedies of either party.

18. FORCE MAJEURE
18.1 Neither party will be in default under this Agreement by reason of its delay in performance of or failure to perform any of its obligations, if such delay or failure is caused by declaration of war, strikes, Acts of God or the public enemy, riots, interference by civil or military authorities, compliance with Governmental laws, rules and regulations, delays in transit or delivery, inability to secure necessary governmental priorities or any fault beyond its control and without its fault or negligence.

19. GENERAL
19.1 Severance.  If any part of this Agreement is deemed unenforceable then:
1. if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; or
2. in any other case the provision is severed, then the rest of this Agreement will continue to be legal and enforceable.
19.2 Waiver.  The failure of a party at any time to insist on performance of any obligation under this Agreement of the other party is not a waiver of its right:
1. to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
2. at any other time to insist on performance of that or any other obligation of the other party under this Agreement.
19.3 Notices. 
1. Each party notifying or giving notice under this Agreement will do so:
1. in writing;
2. addressed to the address of the recipient; and
3. hand delivered or sent by prepaid post to that address or sent by e-mail or facsimile transmission to the other party’s e-mail address or facsimile number.
2. A notice given in accordance with Clause 19.3(a) is deemed received:
1. if hand delivered, on the date of delivery;
2. if sent by prepaid post, 4 days after the date of posting within Australia and 7 days after the date of posting outside Australia; and
3. if sent by facsimile transmission, on the day the transmission is sent (but only if the sender has a confirmation report specifying a facsimile number of the recipient, the number of pages sent and the date of transmission).
19.4 Sub-Contracting.  KOBO Australia may sub-contract the performance of any of the Services but will remain primarily responsible for the performance of its obligations under this Agreement.
19.5 Entire Agreement.  This Agreement forms the entire agreement between the parties in respect of the subject matter of this Agreement.

20. GOVERNING LAW
This Agreement is governed by the laws of the State of Queensland

21. DEFINITIONS AND INTERPRETATIONS
21.1 In this Agreement, the following terms will have the following meanings:
‘Acceptable Use Policy’ means the policy governing acceptable use of the KOBO Australia Services annexed in this Agreement as updated from time to time and posted on the KOBO Australia Web Site;
‘Agreement’ means this agreement, including the Acceptable Use Policy, governing the provision of the Services by KOBO Australia to the customer as may be varied from time to time by the parties in writing;
‘Charges’ means the amount payable for provision of the Services as prior agreed between the parties in writing;
‘Customer’ means the party who has entered into this Agreement for Services with KOBO Australia;
‘Customer Deliverables’ means all information and materials to be provided by the customer to KOBO Australia under the terms and conditions of this Agreement as agreed between the parties or as otherwise provided by the customer to KOBO Australia from time to time;
‘Confidential Information’ of a party means all information disclosed by a party to the other party and nominated as confidential (including, but not limited to, confidential information in machine readable form) but does not include information which is already in the public domain;
‘GST’ means any goods or services tax, charge, impost or duty payable in respect of this Agreement or the supply of any goods or services made under or in respect of this Agreement;
‘KOBO Australia Servers’ refers to all Software Processing Units belonging to KOBO Australia or third parties that are connected to the Internet;
‘KOBO Australia Web Site’ means the web site maintained by KOBO Australia and located at http://www.kobo.com.au or any other URL notified by KOBO Australia to the customer from time to time;
‘Intellectual Property Rights’ means all intellectual property rights including, but not limited to:
1. patents, copyright, circuit layout rights, designs, trade marks ; and
2. any application or right to apply for any of the rights referred to in paragraph (a);
‘Internet’ means the world wide connection of computer networks providing for the transmittal of electronic mail, on-line information, information retrieval and file transfer protocol;
‘Services’ means those Services which the customer and KOBO Australia agree are to be provided to the customer by KOBO Australia in accordance with the package descriptions and payment details set out on the KOBO Australia Web Site, or as provided in the written quotation and current from time to time.
21.2 In this Agreement:
1. clause headings have been inserted for convenience only and will not be taken into account in interpreting the Agreement;
2. words importing the singular will include the plural and vice versa;
3. words importing natural persons will include firms and corporate bodies or other legal persons and vice versa;
4. reference to a party to this Agreement includes reference to that party’s successors and assigns.

ACCEPTABLE USE POLICY

KOBO Australia Acceptable Use Policy (Effective 1 February 2009)
KOBO Australia (ABN ) 60 069 257 184

This is KOBO Australia’s Acceptable Use Policy. It applies to you if you are an I KOBO Australia Customer or User (“you”). It is intended to ensure that your use of KOBO Australia’s service is trouble free and that you have due regard to the law and the needs of other users.

Please look out for any amendments to the Policy that KOBO Australia (“we”) might make in the future. From time to time we will make amendments to it by giving you notice of the change and you will then be obliged to comply with the policy as amended.

In this policy we use the following definitions:
- Potentially Prohibited Content means that content so defined by the Broadcasting Services Act, 1992 (as amended).

- Prohibited Content means that content so defined by the Broadcasting Services Act, 1992 (as amended).

- Spam means:
1. commercial messages (including any offers, advertisements, promotions to supply goods, services, business or investment opportunities, or if purpose of the message is to assist or enable a person to dishonestly obtain a gain from another person);
2. sent to recipients who are not known to you, who have not requested the material, or who have not granted permission for the mail to be sent to them; and
3. delivered via electronic means including email, discussion groups, fax, SMS, MMS and ICQ messages.

- Users means users of the Service who have not obtained it as a Customer, but via a Customer who is authorised to resell the Services such as an KOBO Australia Partner.

1. Some General Principles
1.1 You should familiarise yourself with your legal responsibilities. You can view your legal responsibilities in relation to:
1. supervising and controlling children’s access to internet content;
2. procedures which parents can implement to control children’s access to internet content, including availability, use and appropriate application of internet content filtering software; and
3. obligations which may exist in relation to your content under the Broadcasting Services Act 1992 (as amended) or other applicable state legislation, at either of the following web sites: http://www.iia.net.au; or http://www.acma.gov.au
1.2 You are responsible for complying with conditions of use of other networks. If we provide you with access to a network outside our Service you must comply with any acceptable use conditions which apply to that network.

2. Unacceptable Uses
2.1 You must not use our Services, attempt to use our Services or allow the Services to be used in any way:
Breach of Law
1. Which results in you or KOBO Australia breaching, or being involved in a breach of a law, order or regulation (including a foreign law, order or regulation), a mandatory code of conduct, or a voluntary code of conduct that you have agreed to comply with.
Damage to property or people
1. Which results, or could result, in damage to property or injury to any person;
2. To harass, menace or stalk people.
Prohibited Content or Potentially Prohibited Content
1. To place on the internet, obtain through the internet or transmit using the internet any of the following:
1. Content which is (or would be) classified RC or X by the Classification Board. Such content includes:
* material containing detailed instruction in crime, violence or drug use;
* child pornography;
* bestiality;
* excessively violent or sexually violent material;
* real depictions of actual sexual activity; or
2. Content hosted in Australia which is classified R and not subject to a restricted access system which complies with criteria determined by the ABA. Content classified R is not considered suitable for minors and includes:
* material containing excessive and/or strong violence or sexual violence;
* material containing implied or simulated sexual activity;
* material which deals with issues or contains depictions which require an adult perspective;
Protection of minors
1. Which 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 you;
Discrimination
1. Which incites discrimination, hate or violence towards one person or group because of their race, religion, gender or nationality;
Obscene, defamatory, offensive, abusive
1. To send, display or be otherwise involved in material which is obscene or defamatory;
2. Which is, or which would be considered by a reasonable person to be, offensive or abusive;
Illegal business practices and gambling
1. To engage in any misleading or deceptive business or marketing practice;
2. That involves providing or promoting illegal pyramid selling schemes or unlawful gambling or gaming activities;
The rights of others
1. Which infringes I KOBO Australia’s or any other person’s rights (including intellectual property rights and moral rights);
2. Which constitutes a misuse of KOBO Australia’s or any other person’s confidential information; or
3. Which results in a breach by you of any obligation that you owe to any person.
KOBO Australia’s Service
1. undertake any activity which impedes KOBO Australia’s ability to provide its Service;
2. make or receive transmissions of any type or quantity which adversely affect our operation or jeopardise the use of our service, or its performance for other subscribers;
3. undertake acts that waste resources or prevent other users from receiving the full benefit of our services;
4. to solicit subscribers to become subscribers of other competitive services.
2.2 Resale of our Services to others is strictly forbidden under all circumstances unless expressly approved by KOBO Australia in writing.

3. Spamming
3.1 You must not use our Services, attempt to use our Services or allow our Services to be used:
1. To send, cause the sending of, or otherwise be involved in the sending of Spam;
2. provide a capability on an KOBO Australia-hosted site which permits third parties to send Spam from a KOBO server;
3. In connection with any program (including a virus, Trojan horse, worm, cancelbot, timebomb) or activity (including a denial of service attack), that is designed to provide or allow any form of unauthorised control of, or result in an adverse effect on, a computer, a network or data (whether the computer, network or data belongs to KOBO Australia or anyone else);
4. To access or use KOBO Australia’s or any one else’s systems, networks or data (including through open relay, port probing and the use of packet sniffers) without consent, regardless of whether or not such access or use has any adverse effect on the system, network or data;
5. To create, send or alter in any way and by any means (including spoofing and use of third party mail servers), 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 you;
6. send electronic chain letters;
7. to manipulate or bypass KOBO Australia’s content usage limits;
8. send email to a recipient after the recipient has unsubscribed from your mailing list or has advised you by other means that they do not wish to be on the mailing list;
1. undertake activities which cause or may cause third party service providers to place KOBO Australia’s internet protocol (IP) addresses on a blacklist and/or block those IP addresses;
2. distribute messages to inappropriate or unrelated forums, newsgroups or mailing lists.
3.2 We support increasing awareness of our Customers about Spam and how it can be managed. KOBO Australia uses spam and virus filters and encourages our customers to use spam and virus filters. You agree to KOBO Australia’s use of spam and virus filters which may require us to use third party equipment or services to monitor and filter email traffic between our equipment and the Internet. You agree that you will not take any steps to disable those filters and that we will not be liable for any loss or damage resulting from the use of spam or virus filters. Further information about these products can be found at the web site of the Internet Industry Association at http://www.iia.net.au

4. Third Party Complaint Process
4.1 From time to time, KOBO Australia receives complaints from third parties (“Complaints”) regarding unacceptable uses, allegedly being conducted by Customers or their Users. KOBO Australia will make reasonable endeavours to resolve such complaints by working with Customers. The complaint process set out here does not apply to complaints the subject of court order or proceedings, or where KOBO Australia reasonably believes that it must take urgent action without reference to the Customer.
4.2 If KOBO Australia is unable to resolve the complaint by working with Customers, KOBO Australia’s policy is to put the complaining party in direct contact with the party best able to answer the complaint. Accordingly, KOBO Australia’s Customers authorise and direct KOBO Australia to provide to third party complainants the relevant Customer’s email contact details.
4.3 You have a right to complain to the ACMA about content. If you become aware that a web site hosted by KOBO Australia contains Prohibited Content or Potentially Prohibited Content, you can make a formal complaint to the Australian Communication and Media Authority by contacting them at: Australian Communication and Media Authority, GPO Box Q500, Queen Victoria Building, NSW 1230, or through their web site at http://www.acma.gov.au

5. What We May Do to Ensure That This Policy is Being Followed
5.1 We may monitor your account but will respect your privacy. We may monitor the conduct of your account to determine whether this policy is being followed.
5.2 If we monitor the conduct of your account we will safeguard your privacy subject to the terms of our Privacy Policy.
5.3 We may suspend or terminate your account and/or notify the authorities. If we believe that your use of the Service may break the law or that you have not complied with this policy we may:
1. warn you by email (but we are not obliged to do so);
2. suspend your access to the Service;
3. terminate your account without notice; and/or
4. notify and provide relevant information to the authorities, as appears appropriate in the circumstances.
5.4 In the event of taking action under 5.3 we reserve the right to delete any or all of your information, material, software or other content stored on our system at our sole discretion.
5.5 We may, at our absolute discretion and without notice to you, suspend or terminate your access to the Service:
1. where we are made aware that a court order, judgment, decree, determination or otherwise has been made to the effect that the Customer data is illegal, offensive, objectionable or in breach of a third party’s rights;
2. if we are directed to do so by the ABA under a takedown notice in accordance with its obligations under the Broadcasting Services Amendment (Online Services) Act 1999 (as amended); and
3. if we are served with a takedown notice in accordance with part 3A of the Copyright Regulations 1969 (as amended).
5.6 You agree that you will have no claim against KOBO Australia in respect of any action reasonably taken by KOBO Australia in its implementation of the terms of this Acceptable Use Policy, and you indemnify KOBO Australia against any claim by a User arising out of the same.