Terms & Conditions

1. APPLICATION AND INTERPRETATION

1.1 Your customer agreement with us is solely made up of these terms, your Services Application, our SLA, AUP and our then current Price List (“Customer Agreement”).
1.2 Dictionary Definitions contained in this dictionary apply to this application
“AUP” means our acceptable use policy as amended from time to time and found at http://www.websecuremailguard.com/conditions.html
“SLA” means our service level agreement if we advise you that one applies to the service you acquire from us – where we advise you in writing that an SLA does apply, it can be found at http://www.websecure.net.au/terms_n_conditions.html 
"Client / Customer means the party described as such on the Service Application (“you” or “Customer”).
 “Goods& Services” means, unless the context requires otherwise, goods or services supplied by WebSecure 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 data, in whatever form, acquired by WebSecure Mailguard in the provision of a service to a customer.
“Default Invoicing Option” means that we will issue you with an invoice for 12 months of advance service provision.  Our invoices are payable on 7 days terms.
“Force Majeure” means an event or circumstance beyond our reasonable
control.
“Minimum Term” means an agreement term of 1 month.
“Opt out” means that you have provided a written notice to advise us that you wish to cancel our services within 14 days of us providing Service(s) to you.
“Opt Out Period” is the period during which we will provide Service(s) to you free of charge and in the absence of an express time, 14 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. GOODS/SERVICES, PRICE

2.1 If we agree to provide you with Services we will do so in accordance with our then current price list, unless we agree otherwise in writing. We may notify you of prospective price increases at any time.
2.2 You must pay us in the manner specified by clause 8 of these terms.
2.3 You are solely responsible for dealing with your internet service provider and dealing with your staff or contractors who apply settings to your email or internet access environments, even where we agree to assist you (e.g. where we agree to arrange for your MX records to be changed ) – in which case you release us from any liability for loss or damage arising from our assistance to you.
2.4 You and anyone who uses the service (with or without your consent) must use the service in accordance with your Customer Agreement. 

3. DELIVERY

Subject to clause 4, we will use reasonable endeavours to deliver the services and goods to you.

4. WARRANTIES AND EXTENT OF LIABILITY

4.1 To the extent permitted by law we:
(a) will provide services with reasonable care and skill but do not
warrant that they will be provided without fault or disruption or will be error free;
(b) do not provide a service level guarantee or any guaranteed service
level unless the customer agreement states otherwise;
(c) do not provide a warranty for hardware provided under a customer
Agreement (to the extent permitted by law), but we will (where capable of assignment) assign the benefit of any manufacturer’s warranty to you.
4.2 Except for any express warranties in a customer agreement, to the extent permitted by law we disclaim all express and implied warranties in relation to a service or a customer agreement.
4.3 In the case of any breach of a customer agreement, or any negligence for which we are responsible, or breach of a condition or warranty that legislation prohibits us from excluding (which condition or warranty shall accordingly be included), our liability to you will be limited, at our option, to:
(a) if the breach or negligence relates to goods –

• replacement of any goods involved or the supply of
• equivalent goods;
• the repair of such goods;
• the payment of the cost of replacing the goods or of
• acquiring equivalent goods; or
• the payment of the cost of having the goods repaired

and
(b) if the breach relates to services –

• supplying of the services again; and
• the payment of the cost (for the period of the breach) of having the services supplied again.

4.4. In no circumstances are we liable for any indirect, secondary or consequential loss or loss of income that you or anyone else may suffer.
4.6 You indemnify us (on a full indemnity basis including all legal costs and expenses) against any claim, loss or damage we suffer to the extent that it arises from:
(a) any act or omission;
(b) any breach of any law;
(c) any breach of a customer agreement or an AUP;
(d) any unauthorised use of a service –
by you or anyone using a service we provide to you.
4.6 We are not responsible for the consequences of a force majeure.
4.7 Where an SLA applies to the service you acquire from us, then we will pay you the applicable rebate, in which case this is your sole remedy against us (to the extent permitted by law).

5. ACKNOWLEDGEMENTS

5.1 You acknowledge that:
(a) you do not have any rights to any particular user identification, password, customer number, IP address, or any other thing which we may provide as part of a service. We can direct you to change these at anytime.
(b) we are not required to store any email or data in accounts that are not
active and we are not responsible for any loss or damage because of this.
(c) Our service should not be the primary or exclusive anti-virus and anti spam filtering service – you should implement a regularly updated server and desktop level filtering software in addition to our services.
(d) you are solely responsible for backing up your emails and other data;
5.2 The effect of these acknowledgments are that:
(a) You must accept service from us subject to these matters, and none of them constitutes a defect in service.
(b) You release us from all losses and claims in respect of, or out of, such
matters or their consequences.

6. ELECTRONIC TRANSACTIONS

WebSecure 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. NOT IN USE

8. PAYMENT

8.1 You must pay us for all goods and services (including all taxes and other charges):
(a) within 7 days of the date of an invoice, unless we agree otherwise in writing; and
(b) by way of a payment method that we may approve from time to time (in the case of credit cards, we may impose a surcharge to cover our credit card merchant fees by providing you written notice).
 8.2 In addition to any other right we may have, we 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 and or impose a late fee of $AUD 75.00

9. CONFIDENTIAL INFORMATION

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 these terms.
9.1 The Customer is the owner of the Customer Information and WebSecure Mailguard will not read, disclose, deal with or use Customer Information, including email data, web traffic data, or any other data necessary for the provision of a service or acquired by WebSecure Mailguard in the provision of a service to a customer, except for 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 and to generate statistics.  Statistical compilation and analysis of data may also be used by WebSecure Mailguard or provided to others as a summary report for marketing, advertising or research purposes, provided that such compilations or analysis must not be able to identify you in any way.
(d) Detecting fraud, illegal activity or any other reasonable purpose including maintaining the operational stability and safety of WebSecure Mailguard ’s network.

10. COPYRIGHT, INTELLECTUAL PROPERTY

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 us unless the parties agree otherwise in writing.  Any copyright or other intellectual property created prior to the date we commenced providing the goods or services will remain the property of the party which owned it prior to the commencement of WebSecure Mailguard providing the goods or services.

11. SUSPENSION AND TERMINATION

11.1 Your customer agreement with us commences on the date we agree to provide you with our services and ends when terminated in accordance with this clause
11.2 We may suspend services under a customer agreement without notice and without any liability for loss and without prejudice to our rights under the Customer Agreement or at law if:
(a) we suspect that your service has been accessed without authority, or the integrity of the your service has been compromised;
(b) we suspect that your service has been used for unlawful purposes;
(c) you have not paid money you owe us;
(d) we consider it is necessary to protect our network;
(e) you or a guarantor has an adverse credit report;
(f) you are in breach of our AUP, or any other part of your Customer Agreement;
(g) a governmental or law enforcement agency asks us to do so;
(h) a wholesaler requires us to do so;
(i) we consider that unless we do so, there is an unacceptable risk that there will be a breach of a law or of an agreement between us and a wholesaler; or
(j) you have changed your contact details without informing us.
(k) where we are required to for emergency maintenance;
11.3 Either party may terminate this agreement on 30 days written notice to the other after the expiry of the minimum term.
11.4 Despite anything to the contrary, where you enter into a Customer Agreement to receive a Service during an Opt Out Period, you may terminate your Customer Agreement within 14 days of its commencement (“Opt Out Period”) – if you fail to do so, then the minimum term commences upon the expiry of the Opt Out Period.
11.5 We may terminate a Customer Agreement at any time if:
(a) you become insolvent;
(b) you are subject to an application for winding up;
(c) you are subject to any form of external administration or management;
(d) you fail to pay us money within 14 days of it being due;
(e) you breach a customer agreement and fail to remedy the breach within seven days after receiving a notice requiring that it be remedied;
(f) you die (if you are an individual customer);
(g) you have provided false or misleading information to us –
and in any other circumstances where the customer agreement allows us to.
11.6 Subject to clause 11.4, if you terminate a Customer Agreement within the minimum term, then you are liable to pay us the fees that would otherwise have been payable had the Customer Agreement not been terminated until the expiry of the minimum term. This is a genuine pre-estimate of the loss we are likely to suffer.

12. CO-OPERATION BY CLIENT

You agree to provide us with all assistance necessary to enable us to perform our obligations under a Customer Agreement, including access to all necessary information, personnel and equipment, and a safe and appropriate working environment.

13. GOVERNING LAW

Your Customer Agreement is governed by the laws of Queensland, 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.

14. GST

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.

15. PRIVACY POLICY

We will handle all personal information in accordance with the Privacy Act 1988 (and any applicable regulations) and our Privacy Policy located at http://www.websecuremailguard.com/privacy.html. By accepting services from us you consent to receiving marketing and other communications by email.

16. SPAM

16.1. Definition
In this section, “Spam” includes one or more unsolicited commercial electronic messages with an Australian link for purposes of the Spam Act 2003, and derivations of the word “Spam” have corresponding meanings.
16.2. Acceptable use in relation to Spam
You may not use the Service to:
a) send, allow to be sent, or assist in the sending of Spam;
b) use or distribute any software designed to harvest email addresses; or
c) otherwise breach the Spam Act 2003 or the Spam Regulations 2004 of the Commonwealth.
16.3. Our rights to suspend the Service
In addition to, and without prejudice our other rights of suspension, we may suspend our provision of the Service to you in the following events:
a) if the Service provided to you is being used to host any device or service that allows email to be sent between third parties not under your authority and control; or
b) if you are in breach of clause 16.2 above,
provided however that we will first make reasonable attempts to contact you and give you the opportunity to address the problem within a reasonable time period. What is reasonable in this context will depend on the severity of the problems being caused by the open service of breach referred to above.
16.4. Customer to minimise risk of breach
You agree to use your best endeavours to secure any device or network within your control against being used in breach of clause 16.2 above by third parties, including where appropriate:
a) the installation and maintenance of antivirus software;
b) the installation and maintenance of firewall software; and
c) the application of operating system and application software and patches and updates.
Our right to suspend your account applies regardless of whether the open service is provided or the breach is committed intentionally, through misconfiguration, or by other means not authorized by you including but not limited to through a Trojan horse or virus.
16.5. Our right to scan for misconfigurations
We may scan any IP address ranges allocated to you for your use with the Service in order to detect the presence of open or otherwise misconfigured mail and proxy servers.
16.6. Our right to terminate the Service
If the Service is suspended and the grounds upon which it was suspended are not corrected by you within seven days, we may terminate the Service. If the Service is terminated under this clause, you are not entitled to a pro rata refund of any pre-paid charges for the Service unless we agree.

17. NOT IN USE

18. Provision of Service during Opt Out Period

We may provide services to you during an Opt Out Period.
If you do not terminate a Service by the close of business (being 5pm AEST) on the day the Opt Out Period ends, then you are deemed to have agreed to acquire those services for a minimum term of 1 month commencing from the end of the Opt Out Period.

19. VARIATION

You may not vary this agreement unless the variation is in writing, signed by both parties, and expressed to be intended to vary this agreement.  We may vary this agreement at any time by notifying you via email or by publishing a variation on our website at www.websecuremailguard.com.au  

20. ASSIGNMENT

You may not assign or novate this agreement without our prior written consent.  We may assign or novate this agreement without your consent at anytime.

21. INCONSISTENCY

If any term or condition of this licence 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 these terms.

22. NOTICE

A notice, approval, consent, instruction or other communication (‘Notice’) in connection with this agreement must comply with this clause. A Notice must be written, and faxed, emailed, posted or delivered to a party’s Service Address or personally delivered to the party. A Notice must be signed.

A Notice is deemed to have been given:

• if emailed between 9am and 4.45pm on a Business Day, when the sender’s email system providing confirmation of successful transmission.
• If emailed other than between 9am and 4.45pm on a Business Day – at 9am on the next Business Day; subject to sender’s email system providing confirmation of successful transmission.
• if personally delivered – at the time of delivery;
• if hand delivered to a business address between 9 a.m. and 4:45 p.m. on a Business Day – on delivery;
• 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;
• if posted by ordinary mail – at 10 a.m. on the fifth Business Day next following posting;
• 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
• 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.

23. WAIVER

A waiver may only be given in writing and signed by the party waiving their rights.

24. FORCE MAJEURE

24.1. Web Secure MailGuard are not liable for:

         (a). Any delay in installing any Service,
         (b). Any delay in correcting any fault in any Service,
         (c). Failure or incorrect operation of any Service, or
         (d) .Any other default in performance under this Agreement,

If it is caused by any event reasonably beyond our control, including but not limited to war, accident, act of God, industrial action, embargo, Third Party, Terrorist Action, delay or failure or default by an other supplier or whatsoever the cause.

25. GENERAL

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.
25.1. Whole Understanding: This Agreement contains the whole understanding of the parties to the exclusion of any prior or collateral Agreement or understanding of any kind relating to the Services.
25.2. No Reliance: You acknowledge that you enter into this Agreement entirely as a result of your own enquiries and that you do not rely on any statement, representation or promise by us on our behalf not expressly set out in this Agreement.

25.3. Release

You accordingly release us and each of our offices, agents and advisers from all claims, suits and demands of every kind (including negligence) arising from the relationship of the parties concerned this Agreement before it was signed, and from the negotiations leading to it.

25.4. Waiver

The failure by either party to exercise any right or remedy under this Agreement in a timely manner does not constitute acceptance of the matter which gave rise to the right or remedy, nor that party's waiver of such right or remedy.