Terms & Conditions
MailGuard 365 Service Order Terms
1. About
MailGuard Pty Ltd ABN 89 096 696 874 (MailGuard, we, us or our) makes the MailGuard 365 Email Filtering service available for use by customers of Microsoft’s Office 365 product. Our Service (Service):
(a) utilizes MailGuard's proprietary threat detection engines, to predict, anticipate and learn about new and emerging threats via email;
(b) quarantines email spam, email malware, phishing emails and viruses contained in emails by placing it in spam/junk or trash folders; and
(c) allows you to customize account settings through the console we provide.
2. About this document
(a) This document sets out the terms and conditions (Terms) that apply to users of our Service. Your agreement with us is wholly contained in this document.
(b) By using the Service, you agree to be bound by these terms.
3. Approval
3.1 Use of our Service is subject to:
(a) your acceptance of these Terms; and
(b) your compliance with our Acceptable Use Policy and any other policy that we may introduce from time to time.
3.2 You warrant that all information you provide us in your application for approval is true and correct, and that where such information is no longer correct that you will notify us immediately in writing.
3.3 Once we approve your application you and your employees have a limited right to use our Service in accordance with these Terms.
3.4 You must not:
(a) attempt to use our Service without first receiving our written approval to do so; and
(b) provide access to any third party without our written approval.
4. Our relationship with you
4.1 You are an independent of us. Except in the case of anything to the contrary and to the extent set out in these Terms, you are not our employee or agent and have no authority to act on our behalf or to bind us. You must not allow any person to believe otherwise.
4.2 We are not responsible for the provision of Microsoft services, they are solely provided by Microsoft.
5. Subscription Fees
5.1 In consideration for your use of our Service you must pay us our then current subscription fee or in the case of purchases through the Microsoft Marketplace the fee set by Microsoft (‘Subscription Fee’).
5.2 Where you purchase our Service through the Microsoft Marketplace:
(a) Microsoft will act as our billing agent, and collect payments on our behalf;
(b) Microsoft will charge us a fee and remit the balance of the Subscription Fee – you acknowledge and agree to Microsoft receiving a commission for the sale of our Service.
(c) MailGuard 365 protects every mailbox in your organization, so a license will be created for every mailbox and your organization will be billed for every mailbox associated with the Microsoft tenant ID provided.
5.3 You acknowledge and consent to us paying commissions to any third parties that may recommend, refer or resell our Service to you.
5.4 We will not provide a pro-rata refund of Subscription Fees if Services are terminated for any reason unless:
(a) you are using a trial version, you are not entitled to use the Service if Subscription Fees are unpaid; or
(b) we are required to provide a refund by law.
5.5 Subscription Fees include GST and value-added consumption taxes.
6. Third Party Services
6.1 Our Service relies on third party services to operate such as:
(a) API in order to interact with the various computer systems; and
(b) third party verification and fraud protection tools;
(Third Party Services).
6.2 You acknowledge and agree that:
(a) where Third Party Services do not operate properly our Service may not function properly;
(b) where Third Party Services do not operate properly our Service may not operate in whole or in part; and
(c) a failure in Third Party Services is not a failure in our Service;
6.3 Where you acknowledge something, you agree that your use of our Service is subject to these acknowledgments.
7. Data
7.1 This clause 7 is subject to the terms of our Privacy Policy found here: https://www.mailguard365.com/privacy-policy/
7.2 You consent to our use of de-identified data in order to:
(a) improve MailGuard's IP or the operation of our services;
(b) use data to improve our business;
(c) share insights with our partners (including Microsoft) and other users of our services.
7.3 In order for our Service to function, third party services require:
(a) you to access it via the internet;
(b) all emails going to your Office 365 tenant will be sent to our filters and reside on our servers;
(c) certain information to be collected and stored within the services, this information may include personal information, and other sensitive information.
7.4 You acknowledge and agree that:
(a) access to the internet carries risks of having your devices, computers and network infected with viruses, trojans or other malware; and
(b) you should use security and anti-virus software to protect your devices, computers and networks that access the internet.
7.5 You consent to the collection, use, disclosure and storage of personal information, and sensitive information in order to use our Service including on the terms of our Privacy Policy and Collection Statement.
7.6 You consent to our use of personal information for marketing purposes. We will never sell your personal information, and sensitive information. You may opt out of receiving communications including those referred to in clause 7.6, from us at any time, however, we may not be able to provide our Service in some circumstances where you do.
7.7 You must ensure and warrant that you will not knowingly use our Service to send any:
(a) malware, adware, viruses, or Trojans; and
(b) other content or material which may be detrimental to us or users of our Service, or Microsoft.
8. Customer Data
8.1 Customer Data refers to all customer emails and the content of emails.
8.2 Subject to clause 8.3 and our privacy policy, when dealing with Customer Data:
(a) we will not view Customer Data; and
(b) we will not disclose Customer Data.
8.3 We may only view or disclose Customer Data:
(a) where we are compelled to do so by the law;
(b) where we are required to comply with an order of an Australian Court;
(c) to the extent require to maintain the operational safety and stability of our Service; and
(d) to the extent necessary to comply without obligations under these terms and to provide the Service.
9. Console
9.1 As part of our Service you will have access to a customer console which will allow you to adjust your account settings.
9.2 You must ensure that you only allow authorized personnel to alter settings, as alterations to settings in the console may impact the effectiveness of our Services.
9.3 Our Service has a default setting to send you various notifications including status changes.
9.4 We recommend that all notifications remained turned on, however, where you turn some notifications off it may impact the effectiveness of our Service.
10. API Access
10.1 In order for our Service to operate you must provide us with consent to access your Microsoft Office 365 tenant / account via an API..
11. Service Levels
11.1 We do not:
(a) require or provide any formal service level guarantees, though we will make reasonable efforts to ensure the reliable operation of our Service; and
(b) warrant that our Service will block every virus, spam, trojan, phishing email, or other malware.
11.2 You acknowledge that viruses, trojans, spam, phishing emails, and other malware can evolve quickly and may evade detection; this is not a defect in our Service.
11.3 MailGuard 365 performs email scanning through secure API calls via Microsoft Graph. All processing occurs in-memory using stateless functions, ensuring that no email data is stored or altered at any time.
11.4 The scanning of emails via API does not impact email flow within Office 365, preserving the functionality of existing email flow connectors and rules.
11.5 Any disruption or temporary unavailability of our Service will in no way impact your business operations, email access, or data integrity. Our Service functions independently of your core email infrastructure, and we do not alter, block, or delay your email flow. Your email data remains accessible, and Office 365 functions, connectors, and rules remain unaffected.
12. Limited license
12.1 You have a limited license to use our Service subject to these Terms.
12.2 You must not:
(a) reverse engineer, adapt, disassemble, decompile, copy or replicate any part of our Service; and
(b) do anything which compromises or adversely impacts the operation of our Service.
13. Confidential Information
13.1 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 our Services, is confidential unless the party providing the information states otherwise.
13.2 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 your Contract.
13.3 You own the Customer Information and we 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 us in the provision of a Service to you, except for:
(a) complying with Laws;
(b) complying with a legal directive that we reasonably believe to be binding;
(c) the purposes set out in your Contract, or as agreed in writing with you from time to time, including (where applicable to a Service):
(d) scanning data for viruses, executable code, spam or any other form of unwanted content;
(e) filtering, deleting, quarantining or otherwise managing the disposition of data, in whole or in part;
(f) analysing data for trends, patterns, specific data or other elements so as to improve, protect or enhance our services, systems and business in general;
(g) detecting fraud, illegal activity or any other reasonable purpose including maintaining the operational stability and safety of our Network.
13.4 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.
13.5 To the extent that the GDPR applies, both parties shall:
(a) comply with all relevant data protection legislation applicable from time to time including, as appropriate, Privacy Act 1988 (Cth) and GDPR. We shall process Customer Information only in accordance with your instructions. You warrant that you have the right to instruct us to process the Customer’s Data in accordance with these customer terms and acknowledge that we are under no duty to investigate the completeness, accuracy or sufficiency of any such instructions;
(b) implement appropriate standards of technology and operational security to protect Customer Information from loss, misuse, or unauthorised alteration or destruction, and will cooperate fully with each other in respect of any such event;
(c) complete all relevant details in, and enter into, the Standard Contractual Clauses (Annex to Decision 2010/87/EU) attached. Where there is any conflict between the Standard Contractual Clauses and the other clauses of these terms, the Standard Contractual Clauses will prevail.
13.6 For the purposes of this clause the following definitions apply:
(a) Contact Information means your contact details as most recently notified to us, including addresses, telephone numbers, email addresses, websites, employee names, or similar;
(b) Customer Information means any information (other than Contact Information) including data such as email data, web traffic data and any other data, in whatever form, we acquire in the provision of a Service to you.
14. Intellectual Property
(a) We own the intellectual property rights in our Service (excluding Customer Data) and the underlying software and the associated trademarks and domain names.
(b) You must not:
(i) do anything which may infringe, jeopardise or challenge such rights;
(ii) commercialise or attempt to commercialise such rights.
15. Liability
15.1 To the maximum extent permitted by law:
(a) our Service is provided on an ‘as is’ basis and we exclude all implied conditions, warranties, guarantees and representations of any kind;
(b) neither party is liable for any direct, indirect or consequential loss, damage, cost or expense of any kind (however caused or arising, including by negligence) arising from or in any way connected with us, our Service; and
(c) each party’s liability under these terms is capped at AUD$1000.
15.2 If you are an Australian consumer, within the meaning of the Australian Consumer Law (‘ACL’), the ACL sets out certain consumer rights and remedies that cannot be excluded, restricted or modified. These Terms are subject to the ACL and do not exclude, restrict or modify them where it would be unlawful to do so.
16. Suspension or Termination
16.1 We may suspend or terminate your use of our Service where we become aware of or suspect:
(a) a breach of these Terms;
(b) unlawful act or omission including actual or suspected fraud;
(c) any act or omission which threatens the security and stability of our Service or the infrastructure that supports it; and
(d) where we decide to no longer provide the Service in our sole and unfettered discretion.
16.2 You may cease using our Service at any time on 30 days written notice unless you have entered into a fixed term agreement, unless stated otherwise, our default fixed term is 12 months, in which case you may terminate at any time after the fixed term has expired.
16.3 We may cease providing use of our Service at any time, but where we do, we will notify you in writing.
17. Obligations
When using our Service you must ensure that:
(a) you comply with our reasonable directions;
(b) you comply with our Acceptable Use Policy and these Terms;
18. GST
18.1 In this clause, the following expressions have the same meaning as in the GST Act:
(a) taxable supply;
(b) consideration;
(c) value;
(d) acquisition;
(e) taxable supply;
(f) input tax credit;
18.2 Commissions are taken to be GST inclusive unless they are expressed to be ‘GST exclusive’, ‘+ GST’ or similar.
18.3 Where any amount is GST inclusive, it is the gross amount, inclusive of any GST payable in respect of any taxable supply for which that amount is paid. Otherwise:
(a) The consideration payable by a party represents the value of any taxable supply for which payment is to be made;
(b) If we make a taxable supply for a consideration, which represents its value, then you must pay immediately the amount of any GST payable in respect of the taxable supply.
18.4 If these terms require you to pay, reimburse or contribute to an amount paid or payable by us in respect of an acquisition of a taxable supply from a third party, the amount you must pay, reimburse or contribute will be the value of the acquisition by us less any input tax credit to which we are entitled plus, if our recovery from you is a taxable supply, any GST payable under this clause.
18.5 We may recover any GST payable under this clause.
18.6 We may issue a recipient created tax invoice where we make a taxable supply.
18.7 Where any consumption tax or VAT in a jurisdiction other than Australia is payable in addition to the Subscription Fee, then you must also pay that consumption tax or VAT.
19. Comparison Restrictions
19.1 You must not use a Service to measure or create any comparison with another service, benchmark or performance measure, except for your own internal business purposes. Any such comparison, benchmark or performance measure shall constitute our Confidential Information and you must not publish it, disclose it to any third party or share it.
20. Force Majeure
20.1 Neither party is responsible for any failure to perform its obligations under these Terms, if it is prevented or delayed in performing those obligations by an event of force majeure.
20.2 In the event of a force majeure, the party prevented from or delayed in performing its obligations under an Agreement must immediately notify the other party giving full particulars of the event of force majeure.
20.3 Either party may terminate an Agreement in writing where a force majeure event exceeds 14 days.
20.4 For the purpose of this clause, force majeure means any act beyond the reasonable control of a party including an act of god, war, terrorism, cyber-attack, or industrial action.
21. Free Trial
21.1 We may offer a free trial of our Service, where we agree, we will notify you in writing.
21.2 If we give you a free trial of a Service:
(a) there are no Subscription Fees payable for the Free Trial Period;
(b) unless our free trial offer specifies otherwise, the ‘Free Trial Period’ is 30 days from and including the date you activate your Service and ending at 5pm AEST on the final day of that period;
(c) you may terminate your Contract by clicking the ‘Opt Out’ link which is provided at time of signup;
(d) if you do not terminate within the Free Trial Period, your agreement with us for the Service will continue from the end of the Free Trial Period; and
(e) in all other respects, these terms apply to the free trial.
22. Nonprofits
22.1 Eligible organizations must operate on a not-for-profit basis and have a mission to benefit the local community that could include, but is not limited to: providing relief to the poor, advancing education, improving social welfare, preserving culture, preserving or restoring the environment, promoting human rights, establishment of civil society.
22.2 Eligible organizations include:
(a) Nonprofit organizations - recognized legal status in their respective country;
(b) Governmental organizations; and
(c) Schools, colleges and universities.
22.3 MailGuard 365 reserves the right to grant or deny an organizations application or participation at any time, for any reason, and to supplement or amend these eligibility guidelines at any time without notice. Selections are made at MailGuard 365’s sole discretion and are not subject to external review.
23. Conflicts
23.1 Despite anything to the contrary, these terms take precedence over any other conflicting terms which apply to a Service including Microsoft’s Marketplace Terms.
24. Miscellaneous
(a) We may amend these Terms from time to time by giving you written notice. Amendments will not apply retrospectively.
(b) You may not assign any part of your rights or obligations under these terms without our prior written consent.
(c) The parties rights, remedies and powers under these terms are cumulative and not exclusive of any rights, remedies or powers provided to us by law.
(d) If we overlook a breach of these Terms on one or more occasions, we are not taken to have agreed to any future breach.
(e) If a provision of these Terms is unenforceable it must be read down, to the point of severance if necessary. Nothing will affect the enforceability of the remaining provisions of these Terms.
(f) These Terms and any written Special Conditions (agreed to by the parties mutually in writing) constitute the entire agreement between you and us in relation to its subject matter and supersede all other agreements, arrangements or understandings.
(g) These Terms are not to be construed against a party because that party was responsible for its preparation.
(h) These Terms are governed exclusively by the law of Victoria, Australia, and any dispute may only be heard in the Courts of Victoria Australia.
Protect your data, passwords, banking and other sensitive credentials that are the target of attacks by cybercriminals.
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SPEAR PHISHING
Targeting key individuals, cybercriminals use social engineering to design fraudulent emails aimed at extracting sensitive information & funds.
1. About
MailGuard Pty Ltd ABN 89 096 696 874 (MailGuard, we, us or our) makes the MailGuard 365 Email Filtering service available for use by customers of Microsoft’s Office 365 product. Our Service (Service):
(a) utilizes AI (Artificial intelligence) threat detection engines, to predict, anticipate and learn about new and emerging threats via email;
(b) quarantines email spam, email malware, phishing emails and viruses contained in emails by placing it in spam/junk or trash folders; and
(c) allows you to customize account settings through the console we provide.
2. About this document
(a) This document sets out the terms and conditions (Terms) that apply to users of our Service. Your agreement with us is wholly contained in this document.
(b) By using the Service, you agree to be bound by these terms.
3. Approval
3.1 Use of our Service is subject to:
(a) your acceptance of these Terms; and
(b) your compliance with our Acceptable Use Policy and any other policy that we may introduce from time to time.
3.2 You warrant that all information you provide us in your application for approval is true and correct, and that where such information is no longer correct that you will notify us immediately in writing.
3.3 Once we approve your application you and your employees have a limited right to use our Service in accordance with these Terms.
3.4 You must not:
(a) attempt to use our Service without first receiving our written approval to do so; and
(b) provide access to any third party without our written approval.
4. Our relationship with you
4.1 You are an independent of us. Except in the case of anything to the contrary and to the extent set out in these Terms, you are not our employee or agent and have no authority to act on our behalf or to bind us. You must not allow any person to believe otherwise.
4.2 We are not responsible for the provision of Microsoft services, they are solely provided by Microsoft.
5. Subscription Fees
5.1 In consideration for your use of our Service you must pay us our then current subscription fee or in the case of purchases through the Microsoft Marketplace the fee set by Microsoft (‘Subscription Fee’).
5.2 Where you purchase our Service through the Microsoft Marketplace:
(a) Microsoft will act as our billing agent, and collect payments on our behalf;
(b) Microsoft will charge us a fee and remit the balance of the Subscription Fee – you acknowledge and agree to Microsoft receiving a commission for the sale of our Service.
(c) MailGuard 365 protects every mailbox in your organisation, so a license will be created for every mailbox and your organisation will be billed for every mailbox associated with the Microsoft tenant ID provided.
5.3 You acknowledge and consent to us paying commissions to any third parties that may recommend, refer or resell our Service to you.
5.4 We will not provide a pro-rata refund of Subscription Fees if Services are terminated for any reason unless:
(a) you are using a trial version, you are not entitled to use the Service if Subscription Fees are unpaid; or
(b) we are required to provide a refund by law.
5.5 Subscription Fees include GST and value-added consumption taxes.
6. Third Party Services
6.1 Our Service relies on third party services to operate such as:
(a) API in order to interact with the various computer systems; and
(b) third party verification and fraud protection tools;
(Third Party Services).
6.2 You acknowledge and agree that:
(a) where Third Party Services do not operate properly our Service may not function properly;
(b) where Third Party Services do not operate properly our Service may not operate in whole or in part;
(c) a failure in Third Party Services is not a failure in our Service; and
(d) we do not offer any service levels or give any warranties around the availability of our Service.
6.3 Where you acknowledge something, you agree that your use of our Service is subject to these acknowledgments.
7. Data
7.1 This clause 7 is subject to the terms of our Privacy Policy found here: https://www.mailguard.com.au/privacy.
7.2 You consent to our use of de-identified data in order to:
(a) improve our artificial intelligence or the operation of our services;
(b) use data to improve our business;
(c) share insights with our partners (including Microsoft) and other users of our services.
7.3 In order for our Service to function, third party services require:
(a) you to access it via the internet;
(b) all emails going to your Office 365 tenant will be sent to our filters and reside on our servers;
(c) certain information to be collected and stored within the services, this information may include personal information, and other sensitive information.
7.4 You acknowledge and agree that:
(a) access to the internet carries risks of having your devices, computers and network infected with viruses, trojans or other malware; and
(b) you should use security and anti-virus software to protect your devices, computers and networks that access the internet.
7.5 You consent to the collection, use, disclosure and storage of personal information, and sensitive information in order to use our Service including on the terms of our Privacy Policy and Collection Statement.
7.6 You consent to our use of personal information for marketing purposes. We will never sell your personal information, and sensitive information. You may opt out of receiving communications including those referred to in clause 7.6, from us at any time, however, we may not be able to provide our Service in some circumstances where you do.
7.7 You must ensure and warrant that you will not knowingly use our Service to send any:
(a) malware, adware, viruses, or Trojans; and
(b) other content or material which may be detrimental to us or users of our Service, or Microsoft.
8. Customer Data
8.1 Customer Data refers to all customer emails and the content of emails.
8.2 Subject to clause 8.3 and our privacy policy, when dealing with Customer Data:
(a) we will not view Customer Data; and
(b) we will not disclose Customer Data.
8.3 We may only view or disclose Customer Data:
(a) where we are compelled to do so by the law;
(b) where we are required to comply with an order of an Australian Court;
(c) to the extent require to maintain the operational safety and stability of our Service; and
(d) to the extent necessary to comply without obligations under these terms and to provide the Service.
9. Console
9.1 As part of our Service you will have access to a customer console which will allow you to adjust your account settings.
9.2 You must ensure that you only allow authorized personnel to alter settings, as alterations to settings in the console may impact the effectiveness of our Services.
9.3 Our Service has a default setting to send you various notifications including status changes.
9.4 We recommend that all notifications remained turned on, however, where you turn some notifications off it may impact the effectiveness of our Service.
10. API Access
10.1 In order for our Service to operate you must provide us with consent to access your Microsoft Office 365 tenant / account via an API..
11. Service Levels
11.1 We do not:
(a) offer any service level guarantees, but we will endeavor to ensure that our Service operates reliably; and
(b) warrant that our Service will not stop every virus, spam, trojan, phishing emails or other malware.
11.2 You acknowledge that viruses, trojans, spam, phishing emails and other malware are often fast developing and are often unknown to security software – this is not a defect in our Service.
12. Limited License
12.1 You have a limited license to use our Service subject to these Terms.
12.2 You must not:
(a) reverse engineer, adapt, disassemble, decompile, copy or replicate any part of our Service; and
(b) do anything which compromises or adversely impacts the operation of our Service.
13. Confidential Information
13.1 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 our Services, is confidential unless the party providing the information states otherwise.
13.2 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 your Contract.
13.3 You own the Customer Information and we 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 us in the provision of a Service to you, except for:
(a) complying with Laws;
(b) complying with a legal directive that we reasonably believe to be binding;
(c) the purposes set out in your Contract, or as agreed in writing with you from time to time, including (where applicable to a Service):
(d) scanning data for viruses, executable code, spam or any other form of unwanted content;
(e) filtering, deleting, quarantining or otherwise managing the disposition of data, in whole or in part;
(f) analysing data for trends, patterns, specific data or other elements so as to improve, protect or enhance our services, systems and business in general;
(g) detecting fraud, illegal activity or any other reasonable purpose including maintaining the operational stability and safety of our Network.
13.4 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.
13.5 To the extent that the GDPR applies, both parties shall:
(a) comply with all relevant data protection legislation applicable from time to time including, as appropriate, Privacy Act 1988 (Cth) and GDPR. We shall process Customer Information only in accordance with your instructions. You warrant that you have the right to instruct us to process the Customer’s Data in accordance with these customer terms and acknowledge that we are under no duty to investigate the completeness, accuracy or sufficiency of any such instructions;
(b) implement appropriate standards of technology and operational security to protect Customer Information from loss, misuse, or unauthorised alteration or destruction, and will cooperate fully with each other in respect of any such event;
(c) complete all relevant details in, and enter into, the Standard Contractual Clauses (Annex to Decision 2010/87/EU) attached. Where there is any conflict between the Standard Contractual Clauses and the other clauses of these terms, the Standard Contractual Clauses will prevail.
13.6 For the purposes of this clause the following definitions apply:
(a) Contact Information means your contact details as most recently notified to us, including addresses, telephone numbers, email addresses, websites, employee names, or similar;
(b) Customer Information means any information (other than Contact Information) including data such as email data, web traffic data and any other data, in whatever form, we acquire in the provision of a Service to you.
14. Intellectual Property
(a) We own the intellectual property rights in our Service (excluding Customer Data) and the underlying software and the associated trademarks and domain names.
(b) You must not:
(i) do anything which may infringe, jeopardise or challenge such rights;
(ii) commercialise or attempt to commercialise such rights.
15. Liability
15.1 To the maximum extent permitted by law:
(a) our Service is provided on an ‘as is’ basis and we exclude all implied conditions, warranties, guarantees and representations of any kind;
(b) neither party is liable for any direct, indirect or consequential loss, damage, cost or expense of any kind (however caused or arising, including by negligence) arising from or in any way connected with us, our Service; and
(c) each party’s liability under these terms is capped at AUD$1000.
15.2 If you are an Australian consumer, within the meaning of the Australian Consumer Law (‘ACL’), the ACL sets out certain consumer rights and remedies that cannot be excluded, restricted or modified. These Terms are subject to the ACL and do not exclude, restrict or modify them where it would be unlawful to do so.
16. Suspension or Termination
16.1 We may suspend or terminate your use of our Service where we become aware of or suspect:
(a) a breach of these Terms;
(b) unlawful act or omission including actual or suspected fraud;
(c) any act or omission which threatens the security and stability of our Service or the infrastructure that supports it; and
(d) where we decide to no longer provide the Service in our sole and unfettered discretion.
16.2 You may cease using our Service at any time on 30 days written notice unless you have entered into a fixed term agreement, unless stated otherwise, our default fixed term is 12 months, in which case you may terminate at any time after the fixed term has expired.
16.3 We may cease providing use of our Service at any time, but where we do, we will notify you in writing.
17. Obligations
When using our Service you must ensure that:
(a) you comply with our reasonable directions;
(b) you comply with our Acceptable Use Policy and these Terms;
18. GST
18.1 In this clause, the following expressions have the same meaning as in the GST Act:
(a) taxable supply;
(b) consideration;
(c) value;
(d) acquisition;
(e) taxable supply;
(f) input tax credit;
18.2 Commissions are taken to be GST inclusive unless they are expressed to be ‘GST exclusive’, ‘+ GST’ or similar.
18.3 Where any amount is GST inclusive, it is the gross amount, inclusive of any GST payable in respect of any taxable supply for which that amount is paid. Otherwise:
(a) The consideration payable by a party represents the value of any taxable supply for which payment is to be made;
(b) If we make a taxable supply for a consideration, which represents its value, then you must pay immediately the amount of any GST payable in respect of the taxable supply.
18.4 If these terms require you to pay, reimburse or contribute to an amount paid or payable by us in respect of an acquisition of a taxable supply from a third party, the amount you must pay, reimburse or contribute will be the value of the acquisition by us less any input tax credit to which we are entitled plus, if our recovery from you is a taxable supply, any GST payable under this clause.
18.5 We may recover any GST payable under this clause.
18.6 We may issue a recipient created tax invoice where we make a taxable supply.
18.7 Where any consumption tax or VAT in a jurisdiction other than Australia is payable in addition to the Subscription Fee, then you must also pay that consumption tax or VAT.
19. Comparison Restrictions
19.1 You must not use a Service to measure or create any comparison with another service, benchmark or performance measure, except for your own internal business purposes. Any such comparison, benchmark or performance measure shall constitute our Confidential Information and you must not publish it, disclose it to any third party or share it.
20. Force Majeure
20.1 Neither party is responsible for any failure to perform its obligations under these Terms, if it is prevented or delayed in performing those obligations by an event of force majeure.
20.2 In the event of a force majeure, the party prevented from or delayed in performing its obligations under an Agreement must immediately notify the other party giving full particulars of the event of force majeure.
20.3 Either party may terminate an Agreement in writing where a force majeure event exceeds 14 days.
20.4 For the purpose of this clause, force majeure means any act beyond the reasonable control of a party including an act of god, war, terrorism, cyber-attack, or industrial action.
21. Free Trial
21.1 We may offer a free trial of our Service, where we agree, we will notify you in writing.
21.2 If we give you a free trial of a Service:
(a) there are no Subscription Fees payable for the Free Trial Period;
(b) unless our free trial offer specifies otherwise, the ‘Free Trial Period’ is 30 days from and including the date you activate your Service and ending at 5pm AEST on the final day of that period;
(c) you may terminate your Contract by clicking the ‘Opt Out’ link which is provided at time of signup;
(d) if you do not terminate within the Free Trial Period, your agreement with us for the Service will continue from the end of the Free Trial Period; and
(e) in all other respects, these terms apply to the free trial.
22. Conflicts
22.1 Despite anything to the contrary, these terms take precedence over any other conflicting terms which apply to a Service including Microsoft’s Marketplace Terms.
23. Miscellaneous
(a) We may amend these Terms from time to time by giving you written notice. Amendments will not apply retrospectively.
(b) You may not assign any part of your rights or obligations under these terms without our prior written consent.
(c) The parties rights, remedies and powers under these terms are cumulative and not exclusive of any rights, remedies or powers provided to us by law.
(d) If we overlook a breach of these Terms on one or more occasions, we are not taken to have agreed to any future breach.
(e) If a provision of these Terms is unenforceable it must be read down, to the point of severance if necessary. Nothing will affect the enforceability of the remaining provisions of these Terms.
(f) These Terms and any written Special Conditions (agreed to by the parties mutually in writing) constitute the entire agreement between you and us in relation to its subject matter and supersede all other agreements, arrangements or understandings.
(g) These Terms are not to be construed against a party because that party was responsible for its preparation.
(h) These Terms are governed exclusively by the law of Victoria, Australia, and any dispute may only be heard in the Courts of Victoria Australia.