1a) ‘Kern’ means the service supplied by KernWi-Fi Pty Ltd ABN: 59 619 040 916
1b) ‘Service’ means access to the computer network known as the Internet including information Services, computer resources, disk, storage and computer communications.
1c) ‘The Customer’ means the person, entity, dealer or agent acting on behalf, specified on the Application Form for the service .
1d) ‘Plan(s)’ means the account that the customer has chosen to use on the Application Form.
2a) These terms and conditions constitute the entire understanding and agreement between the parties with respect to the provision of the Service. All other written or verbal representations, understandings or agreements are hereby excluded.
2b) All payment claims made under the Building and Construction Industry Security of Payment Act 2009 (SA).
Provision of Service
3a) Kern shall provide The Customer with the Service and or Plan which shall generally be available 24hrs a day, except for upgrade and maintenance times. However, Kern does not warrant that the Service will be uninterrupted or error free.
3b) The Customer acknowledges that the Service and or Plan is not fault free and that they may experience interruptions and access difficulties from time to time.
3c) Kern will provide the Customer with a Login ID code, password and other information to enable access to the Service and or Plan . The Customer must not use the Login ID code and password for Multiple concurrent logins, nor disclose details of this Information to any other person.
3d) Although the Service and or Plan is generally available 24hrs a day, The Customer shall not engage in line blocking by permanently Connecting to the Service and or Plan . Connection is only permitted while Using the Service and or Plan .
3e) All warranties of any kind are excluded except non-excludable warranties implied by State or Commonwealth Statute.
3f) Equipment provided by Kern to the customer is covered by a manufactures return to base warranty.
3g) Kern restricts the size of maximum allowable email to 10Mb in total. Emails larger than 10Mb will be rejected.
3h) Kern does not provide unrestricted Internet Access for all protocols, and some protocols are only available through proxies.
Kern reserves the right to make changes and modifications to its System in its absolute discretion without prior notice.
3i) Kern has the right to restrict or cease accounts that put an excessive burden on the network.
3k) The customer agrees that the service or plan cannot be resold unless authorised, and it is not available to, but not limited to
ISP’s, Internet Cafes and Web Hosting companies.
3l) Kern has the right to terminate the service and or plan immediately and recover all monies owing from the first date of connection, including the cost of debt recovery.
4a) The charges for using the Service are published by Kern from time to time. Kern may vary these charges at any time and The
Customer shall be given 30 days notice of any such variation by publication of new charges on Kern web page.
4b) Customers on all plans will have their service renewed according to the previous plan unless 1 calendar months notice in writing is given to Kern.
If credit card is on file, the recorded credit card will be
automatically debited according to the previous plan and or outstanding amount.
It is the customers responsibility to view details of plans available on the Kern web page. Usage fees, where appropriate, will be debited at the beginning of each plan for excess used in the previous plan.
4c) Customers on ADSL / Broadband wishing to increase or decrease their plan size or cancel their service will incur a fee.
4d) If the customers credit card number expires or Kern is unable to debit charges to this credit card number, Kern may immediately and without notice terminate the Service and outstanding amounts will become immediately payable by the Customer.
4e) Customers on monthly plans , paying by credit card, will have their previous month usage excess debited at the beginning of each following calendar month.
4f) Renewal notices are sent via email up to 4 weeks prior to the expiry of a customers account. It is the responsibility of the customer to check their email.
4g) Any prepayment and payments made are NON refundable.
4h) Any cost incurred by Kern as a result of any unauthorised use, misuse or abuse of the Service will be charged to The Customer and added to the charges otherwise payable.
4i) If Kern is liable for tax in the nature of a supply of goods and services tax calculated by reference to amounts received from the Customer under this Agreement, then the Customer must pay Kern an additional amount with each payment made to ensure that Kern retains , after payment of the GST , the amount it would have received had the tax not been payable.
4j) Without in any way limited paragraph 6a of this Agreement, The Customer shall pay all costs, fees, charges or other expense which may be incurred in respect to the ‘service’.
The ‘customer’ shall indemnify and keep indemnified (the Dealer and) Kern in respect to any such costs, Fees, charges or other expenses.
5a) The Customer agrees to provide a telephone line, modem and or router, computer and software to facilitate access to the Service and or Plan.
5b) The Customer agrees to:
Ensure that all equipment used by and or installed by the Customer is compatible with the Service with Kern having no liability in the event the equipment of the Customer is not compatible with the service .
Ensure that it’s operating system is compatible with any programme provided by Kern prior to installation of that programme
5c) The Customer agrees not to transfer its rights nor delegate its obligations under terms and conditions or resell the Service without the prior consent of Kern .
5d) The Customer is responsible for:
The selection and use of security features, non disclosure of personal Login information and back up of any information.
For all use of the Service and or Plan accessed through The Customer’s password.
5e) Disclosure or loss of Login information that incurs charges or Service misuse is The Customer’s responsibility and should be reported to Kern as soon as possible.
5f) The use of the Service and or Plan is at The Customer’s sole risk and is entirely The Customer’s responsibility. Kern does not and cannot monitor or control The content and information accessed from the Service and or Plan and Kern shall not Be held responsible in any way for any content or information accessed From the Service and or Plan .
5g) The Customer will not use the Service to interfere with or disrupt network users, services or equipment. Disruptions include, but are not limited to, distribution of unsolicited advertising, propagation of computer viruses, using network to make unauthorised entry to any other machine accessible from the Service , sending harassing or threatening electronic mail and forgery (or attempting
forgery) or electronic mail messages and newsgroups.
5h) The Customer agrees:
To refrain from Mass Spam postings of messages to inappropriate newsgroups.
To refrain from mass, unsolicited e-mailings.
To post advertisements only where appropriate and in venues that Specifically encourage or allow advertising.
To respect the conventions of the newsgroups, lists and networks To which The Customer is posting including rules more restrictive than, But not limited to the above.
5i) The Customer agrees:
To refrain from publishing receiving or transmitting any material that is Grossly offensive, abusive, indecent, obscene or menacing.
To not publish material on their homepage that provides instructional Information about illegal activities, promoting physical harm or injury against any group or individual, displaying material containing nudity Or pornographic material of any kind, or material that exploits images of children under the age of 18yrs.
That any homepage that receives in excess of the number of hits as Determined by Kern is liable for additional charges and or restriction of Service .
5j) The Customer shall not knowingly permit any other party to use the Service and or Plan for any illegal purpose.
5k) The Customer must comply with instructions given by Kern concerning the Service and or Plan from time to time.
5l) The Customer shall pay all costs, fees charges or other expenses which are or may be incurred in respect to the ‘service’. If any ‘service’ is cancelled by the ‘customer’ prior to provisioning, the ‘customer’ must pay ‘Kern’ all infrastructure, site survey, equipment and installation costs incured by ‘Kern’ in conjunction with the preparation of the ‘service’ and any third-party costs associated with service cancellation.
The ‘customer’ shall Indemnify and keep indemnified (the Dealer and) Kern in respect to any Such costs, fees, charges or other expenses.
5m) The customer agrees to direct all queries regarding faults and outages of the service to Kern’s support centre. The customer is responsible for any enquiries to any third party service providers. Kern will invoice the customer for any costs incurred by the customer calling the carrier about queries relating to the service.
5m) Certain Internet content may contain material which The Customer may find inappropriate, offensive, inflammatory or adult in nature. Kern does not endorse such materials and disclaims any and all liability for their contents.
Variation of Terms and Conditions
6a ) Kern may vary any of these terms and/or conditions from time to time.
6b) The Customer will review Kern’s Home page at least once every 30days to check whether any variations have been made.
6c) The Customers continued use of the Service and or plan(s) will constitute The Customers acceptance of the variation of Terms
Exclusion of Liability
7a) Except where liability may not by statute be lawfully avoided any statement, condition or warranty express or implied, statutory or otherwise as to the quality, merchantability, or suitability or fitness for any particular purpose of the Service is hereby excluded and Kern shall not be liable to The Customer or any other persons for loss or damage (whether direct Or consequential) arising
directly or indirectly from the use of the Service Or any modification, variation or enhancement thereof, and any Documentation, manual or training relating thereto.
7b) If any condition or warranty is implied in this Agreement pursuant to any provision of the Trade Practices Act 1974 (as amended) or relevant State or Territory legislation and has not been excluded from this Agreement then to the extent that such condition or warranty is binding upon Kern the liability of Kern for breach of the condition or warranty shall be limited to any one or
more of the following as determined by Kern in its absolute discretion:
in the case of any goods any one or more of the following
a) the replacement of goods or supply of equivalent goods;
b) the repair of goods or the payment of the cost of replacing the goods or of acquiring equivalent goods;
c) the payment of the cost of having the goods repaired;
in the case of any Services ;
a) the supplying of the Service and or Plan again;
b) the payment of the cost of having the services supplied again
7c) The Customer agrees that Kern can not be held liable for persons under the legal age accessing, receiving, or transmitting any material that is grossly offensive, abusive, indecent, obscene or menacing. Nor can Kern be held liable for instructional information about illegal activities, promoting physical harm or injury against any group or individual, material containing nudity or pornographic material of any kind, or material that exploits images of children under the age of 18yrs.
8a) The Customer hereby indemnifies Kern in respect of any loss or damage action, claim, suit or proceeding against Kern by any person arising out of the use of the Service by The Customer including but not limited to the transmission of any illegal and/ or fraudulent material.
8b) Due to limitations placed upon Kern by AAPT, and Vocus the service is not guaranteed to work, and there is no timeframe guarantee for the commencement of the service.
9a) Kern shall not be liable by reason of its failure in the performance of its obligation under these terms and conditions by reason of strikes, riots, fire, explosions, Act of God, War, governmental action, or any other cause which is beyond the reasonable control of Kern .
10a) Kern may terminate the Service and or Plan for any reason by giving The Customer (7) days notice.
10b) In the event that The Customer terminates use of the Service and or Plan , The Customer will NOT be given a refund of any prepaid amount.
10c) Not withstanding anything herein contained, Kern may terminate the provision of the Service without notice if The Customer breaches any of these terms and conditions.
10d) Kern , in its sole discretion, reserves the right to suspend the Service and or Plan for any reason.
11a) All notices to be served upon either party by the other shall be in writing and may be sent by mail, fax, or electronic mail to the parties hereto at their respective addresses as specified on the Application Form.
12a) These terms and conditions shall be governed by the laws in force in the State of SA and the Commonwealth of Australia and each party hereto Irrevocably submits to the exclusive jurisdiction of the Courts of the State Of SA.