Standard Terms & Conditions
MailGuard Pty Ltd ABN 89 096 696 874 (“us”, “we” and “our”)
P: +61 1300 30 4430
F: +61 3 9012 4116
W: www.mailguard.com.au
1.1 Your customer contract with us (MailGuard Pty Ltd (ACN 096 696 874) includes (a) these terms; (b) our Service Application; and (c) our Acceptable Use Policy (“customer contract” or “service contract”).
1.2 Dictionary Definitions contained in this dictionary apply to this application
“Client / Customer", "You / Your” means the party described as such on MailGuard’s application order form and the terms can be used interchangeably.
“Goods” means, unless the context requires otherwise, goods or materials supplied by MailGuard as part of the provision of services.
“Contact Information” means the contact details, including addresses, telephone numbers, email addresses, websites, employee names, or similar of the customer.
“Customer Information” means, other than Contact Information, any information, including data such as email data, web traffic data and any other data, in whatever form, acquired by MailGuard in the provision of a service to a customer.
“Trial Service” means a service provided to you for a limited time for the purpose of evaluating that service;
“Trial Period” means the period of time for which we agree to provide a Trial Service, and in the absence of an express time, 30 days from the time the service is made available for use (even if the service is used from a later date);
“Service” means any service (or combination of services) we agree to provide you.
2.1 MailGuard may agree to provide the Client with any goods and/or services requested by the Client from time to time, at such prices and/or rates as the parties may agree. The parties acknowledge that this Application will apply to the provision of all such goods and services unless the parties agree otherwise in writing.
2.2 All invoiced prices, freight charges, taxes and other costs related to the provision and/or delivery of goods or services under this Application will be borne by the Client, and paid in accordance with clause 8. Without limiting the operation of the preceding sentence, the Client agrees to pay for all goods and services and other taxes imposed in respect of the supply of goods or services under this Application, provided that MailGuard supplies an invoice specifying the amount so payable in respect of each supply.
2.3 The Customer agrees that for the purposes of any dealing with any Internet service provider or other third party, there is no relationship of agency created between the Customer and MailGuard and the Customer deals directly and solely with the Internet service provider or other third party.
2.4 When using the Service you must comply with these Terms, the MailGuard Acceptable Use Policy and any other instructions by MailGuard, whether via its website or otherwise. You are also responsible for the use of your Account by any other person (whether you have given them permission to use it or not) and you must ensure that they also comply.
2.4.1 When using any Service, you must not break any laws, infringe the legal rights of any person or cause harm to the Service (including our equipment) or its users. For example, You must not:
(a) interfere with or disrupt the Service, any other computer system or anyone else’s use of them (or attempt to do any of these things), including by distributing viruses or deliberately attempting to overload a system;
(b) access, monitor or use any data, systems or networks without authority (for example by hacking) or attempt to probe, scan or test the vulnerability of any data, system or network;
(c) send or relay unsolicited bulk emails;
(d) forge header information, email source addresses or user information;
(e) engage in any activities which expose MailGuard to liability.
2.5 The client acknowledges that MailGuard may act on the client’s behalf to request a change of MX record preference within their DNS or re-delegate the DNS in order to facilitate the MailGuard service. This will be via communications between MailGuard and the client’s ISP or DNS manager.
2.6 If you order a new service with us on these terms, then upon our agreement to provide those services, you agree that your existing service agreement (except in the case of SafeGuard service) will be varied with the inclusion of these terms as part of your service agreement, and the replacement of your current minimum term with a minimum term which expires at the end of 36 months from the date of this agreement. Your acceptance of these terms is deemed to confirm your receipt and agreement to the variations to your existing service agreement/s, and your waiver of any notice period.
3.1 All goods are to be delivered, and all services are to be provided, by MailGuard with due care and diligence to or at the Client’s premises, unless another place or method (such as remote communications access) is agreed by the parties.
3.2 In order receive MailGuard services, you must complete the Service Application form or submit your details on the MailGuard Free Trial Sign Up form.
3.3 Upon receipt of your application, we will set you up on the MailGuard system. You will receive a welcome email, usually within two working days (sent to your client administrator and technical contact). This email will outline the steps you need to take to activate your requested service(s).
3.4 Once your Service(s) are activated your 14 day opt-out period shall commence. You may terminate this agreement at any time during those 14 days, simply by sending us an email, fax or letter – we recommend using a read receipt to ensure that emails are actually received by us.
3.5 If you do not terminate your Service(s) within 14 days of activation, then you agree to acquire and pay for those Service(s) for the minimum term of 36 months (‘minimum term’) which will renew for successive terms in accordance with clause 11 of the terms and conditions. Termination within the minimum term will result in an early termination fee being payable in accordance with our terms and conditions.
3.6 You agree to accept and pay invoices for our Service(s) 12 months in advance (the default invoicing option). Your fees will be calculated in accordance with the information you provided when you registered for the Service(s). Your invoices will be sent to your nominated “billings accounts and client administrator contact” via email from accounts@mailguard.com.au. Invoices are payable on7 day terms via credit card.
4.1 Some laws – particularly the Trade Practices Act 1974 (‘the Act’) – may give you rights and remedies that cannot be changed or excluded. These Terms and each customer contract we enter into with you are subject to those laws.
4.2. Where we are allowed to limit it, our liability for breaches of the Act is limited, at our option to:
4.2.1. in the case of goods:
• replacing the goods or supplying equivalent goods;
• repairing the goods;
• paying for the cost of replacing the goods or buying equivalent goods; or
• paying for the cost of repairing the goods, and
4.2.2. in the case of services:
• supplying the services again; or
• paying for the cost of supplying the services again.
4.3. Subject to clauses 4.1 and 4.2:
(a) All express or implied representations, conditions, warranties and remedies relating to goods or services that we supply are excluded.
4.4 We are not liable for any indirect, special, economic or consequential loss or damage or loss of revenue, profits, goodwill, bargain or opportunities or loss or corruption of data or loss of anticipated savings that you incur or suffer in any way, whether:
(a) caused by our negligence; or
(b) we knew or should have known of the possibility of such loss or damage.
4.5. Subject to clauses 4.2 and 4.4, our maximum aggregate liability under a customer contract, whether for breach of these terms or in negligence or in any other tort or for any other common law or statutory cause of action or otherwise is the amount equal to the fees you have paid to us under the customer contract in the preceding billing period.
4.6.We will not be liable to you for data loss under any circumstances.
4.7.The limitation of liability in clause 4 does not apply in the case of a claim that we have caused personal injury or death.
4.8 The parties recognise that MailGuard, in providing product information to the Client, will need to rely on warranties, statements, declarations and other information provided to MailGuard (including by way of publication on the Internet or otherwise) by manufacturers and other vendors of products to MailGuard.
4.9 To the extent permitted by law:
• MailGuard does not provide the client with any direct or implied warranty of the effectiveness of the Anti-Virus software that MailGuard utilises – and the Client acknowledges that it should use additional anti-virus and spam protection at the server and desktop level, in addition to the relevant MailGuard products/services; and
• MailGuard does not warrant that the services it provides are error free.
5.1 The Client is deemed to accept all goods and services upon delivery.
MailGuard and the Customer agree that, without limitation, any consent, election, execution, production or other transaction made pursuant to this Agreement will not be invalid solely on the basis that it took place by means of one or more electronic communications. The parties consent to the use of electronic communications or signature (including as permitted by the Electronic Transactions (Victoria) Act 2000) in respect of any written notice or consent required pursuant to this Agreement.
7.1 Risk in goods passes to the Client upon delivery to the Client.
7.2 Property in goods passes to the Client upon receipt of full payment for those goods by MailGuard. The Client authorises MailGuard to enter onto premises where any goods for which MailGuard has not received payment (within the time specified in clause 7) are stored and to take possession of those goods. The Client agrees to keep goods for which payment has not been made to MailGuard separate from those for which payment has been made, and to hold such goods as bailee for MailGuard until payment has been made for them.
The Client must pay to MailGuard the invoiced price of all goods and services provided under this Application (including all taxes and other charges):
(a) in the case of goods supplied, within 7 days after delivery of the invoice (unless the parties otherwise agree in writing); and
(b) in the case of services, on payment terms set out on invoice, or, if no payment terms are set out below, payment in advance prior to delivery.
(c) Payment is by credit card or Invoice only as stated in the application form.
(d) If payment has not been made by the due date, MailGuard may suspend the service until payment has been paid in full or a late payment fee may apply.
MailGuard may charge interest on overdue money at a rate 2% higher than the rate set from time to time under section 2 of the Penalty Interest Rates Act 1983.
(e) MailGuard may charge the Client a surcharge (in addition to any money due under a customer contract) for payments made by Credit Card or Direct Debit.
With the exception of Contact Information, all information, including Customer Information (in whatever form, including any text, drawings, photographs or software) provided or made available by either party for the purpose of this Application, is confidential unless the party providing the information states otherwise. Each party must keep confidential any confidential Information of the other party, and must not reproduce or disclose it without the prior written approval of the other party, except to the extent the law requires, or the information has entered the public domain other than through a breach of this Application.
9.1 The Customer is the owner of the Customer Information and MailGuard will not read, disclose, deal with or use Customer Information, including the content of emails, web traffic data, or any other data necessary for the provision of a service or acquired by MailGuard in the provision of a service to a customer, except for (a) complying with the law; (b) complying with a warrant; (c) the purposes set out in this agreement, or as agreed in writing with the customer from time to time, and such purposes include:
(a) Scanning the data for viruses, executable code, SPAM or any other form of unwanted content as specified by the client from time to time;
(b) Filtering, deleting, quarantining or otherwise managing the disposition of data, in whole or in part, in a manner as agreed with the customer from time to time;
(c) Analysing data for trends, patterns, specific data or other elements so as to improve, protect or enhance MailGuard’s service, its systems and its business in general;
(d) Detecting fraud, illegal activity or any other reasonable purpose including maintaining the operational stability and safety of MailGuard’s network.
9.2 Despite anything to the contrary, we may use any data which is de-identified, such as file type, industry segment, website traffic and other data for the purpose of benchmarking, reporting, market research, data analysis or any other use we determine in our absolute discretion.
(a) The copyright and other intellectual property in all material created by either party for the purpose of this Application, where copyright exists, will be owned by MailGuard unless the parties agree otherwise in writing. Any copyright or other intellectual property created prior to the date MailGuard commences providing the goods or services will remain the property of the party which owned it prior to the commencement of MailGuard providing the goods or services.
(b) No goods or services provided by MailGuard may be used to infringe the intellectual property rights of any third party.
11.1 This Application commences on the date MailGuard makes the products or services available for use to the Client, and continues for a period of 36 months from this date, unless (a) terminated in accordance with this agreement; or (b) the Agreement is extended for a further term in accordance with clause 11.5 or by written agreement of the parties. .
11.2 If MailGuard commits a breach of any provision of this Application, and has not remedied that failure within 14 days of being requested in writing by the Client to do so, then the Client may terminate this Application immediately by notice in writing.
11.3 If the Client commits a breach of any provision of this Application, and has not remedied that failure within 14 days of being requested in writing by MailGuard to do so, then the MailGuard may terminate this Application immediately by notice in writing.
11.4 To the extent that the context and law permit, the rights and obligations of the parties under this Application survive its termination.
11.5 This Agreement will automatically renew for a further minimum term of 12 months at the conclusion of first minimum term of 36 months and each 12 month minimum term, unless:
(a) the parties agree otherwise in writing; or
(b) the Client seeks to terminate the Agreement upon expiry of the then current minimum term (in order to terminate in accordance with this clause, the Client must not less than 30 days prior to the expiry of the then current term serve written notice upon MailGuard).
11.6 If a Client terminates a service (unless it does so under clause 11.2) within a 36 month minimum term, then the Client must immediately pay the total of the fees that would have been payable for the balance of the unexpired portion of the then current minimum term. This is a genuine pre-estimate of MailGuard’s loss as a result of the early termination.
11.7 MailGuard may terminate or suspend the provision of goods or services where it reasonably believes that the Client is I breach of clause 10(b).
The Client agrees to provide MailGuard with all assistance necessary to enable MailGuard to perform its obligations under this Application, including access to all necessary information, personnel and equipment, and a safe and appropriate working environment.
This Application is governed by the laws of Victoria, Australia. The parties unconditionally submit to the exclusive jurisdiction of the courts of that State and all courts competent to hear appeals of the decisions of those courts.
If any payment made by one party to any other party under or relating to this document constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be deemed to include GST.
The Customer acknowledges that all property and rights in the Contact Information belongs to MailGuard absolutely for its own use and benefit, subject to MailGuard’s Privacy Policy, of which the Customer has been made aware and has examined to his or her satisfaction. The Customer further acknowledges that unless MailGuard is given notice of the contrary in the Application Order Form, the Contact information may also be made available to and used by MailGuard and/or its agents at any time for the purpose of marketing and other commercial purposes. The Client consents to receiving email communications (from MailGuard or its agents or suppliers) for any of the purposes in this clause, and in accordance with MailGuard’s Privacy Policy.
Pursuant to the MailGuard Privacy Policy, MailGuard discloses to the Customer that:
MailGuard may be contacted by telephone on +61 3 9694 4444;
The Customer may obtain access to any Contact information and other information by contacting MailGuard;
Contact Information is collected for the purpose of fulfilling this Agreement and for present and future marketing and commercial purposes;
The Contact information is usually disclosed to related entities of MailGuard, Internet service providers, its or their agents, suppliers and customers;
there is no law specifically requiring the collection of the Contact information; If the Contact information is only partly or not provided to MailGuard, this may result in the rejection of the Order by MailGuard.
MailGuard may issue prorated refunds where a customer contract is terminated, in its absolute discretion.
MailGuard may provide Trial Services (a trial service will always be identified as such) for the Trial Period.
If a Client does not terminate a Trial Service by the close of business (being 5pm AEST) on the day the Trial Period ends, then the Client is deemed to have agreed to acquire those services for a minimum term of 36 months commencing from the end of the Trial Period.
We may amend or vary these terms on 7 days written notice to you – we do not require your consent for such amendment or variation. You may not amend or vary these terms and conditions without our written consent. Despite anything to the contrary, written notice may be given by us, by posting a notice on our website www.mailguard.com.au, by notifying you on an invoice, or by emailing a notice to you.
The Client may not assign or novate this agreement without the prior written consent of MailGuard, but MailGuard may assign or novate this agreement without consent at anytime.
If any term or condition of this agreement is inconsistent with the law, then the inconsistent term or condition will be read down to the extent of the inconsistency (or severed if absolutely inconsistent) without affecting the balance of the licence.
A notice, approval, consent, instruction or other communication (‘Notice’) in connection with this agreement must comply with this clause (except in the case of a notice permitted by clause 18 above).
A Notice must be written, and faxed, emailed, posted or delivered to a party’s Service Address or personally delivered to the party or a director of an incorporated party.
A Notice must be signed.
A Notice is deemed to have been given:
1. if personally delivered – at the time of delivery;
2. if hand delivered to a business address between 9 a.m. and 4:45 p.m. on a Business Day – on delivery;
3. if hand delivered to a business address other than between 9 a.m. and 4:45 p.m. on a Business Day – at 9 a.m. on the next Business Day;
4. if posted by ordinary mail – at 10 a.m. on the fifth Business Day next following posting;
5. if faxed between 9 a.m. and 4:45 p.m. on a Business Day – when the sender’s fax machine issues a successful transmission notification, and
6. if faxed other than between 9 a.m. and 4:45 p.m. on a Business Day – at 9 a.m. on the next Business Day, subject to the sender’s fax machine having issued a successful transmission notification.
Each party’s ‘Service Address’ is listed in the Application.
A Notice takes effect from the time it is received unless a later time is specified in it.
You consent to receiving email communications from us including marketing and promotional email. If you no longer wish to receive marketing and promotional emails, you must notify us in writing or by using the unsubscribe feature on any email we send you.
A waiver may only be given in writing and signed by the party waiving their rights.
A reference to a law includes any amendment or replacement of that law.
Anything a party can do, it may do through an appropriately authorised representative.
A schedule to a document (including a schedule to this agreement) is part of that document, as is any document incorporated by reference.
A reference to the singular includes the plural and vice versa.
© 2001 - 2015 MailGuard Pty Limited
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