1. APPLICATION AND INTERPRETATION
1.1
This Contract includes any invoice issued by Redback Communications Pty. Ltd. (ABN: 64 103 466 628) T/As Mailshield Services, and is formed by an authorised officer of each of Redback Communications
and the Client signing where provided. The Contract will prevail in any
conflict between it and the terms of any statement, invoice, offer,
acceptance or other document communicated or agreed between the parties.
1.2
In this Contract, "Client" means the party described as such on Redback Communications' application order form (electronic or print).
1.3
Unless the context requires otherwise, a reference to "goods" includes
goods or materials supplied by Redback Communications as part of the provision of
services.
2. GOODS/SERVICES, PRICE
2.1 Redback Communications 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 Contract will apply to the provision of all such goods and
services unless the parties agree otherwise.
2.2 All
invoiced prices, freight charges, taxes and other costs related to the
provision and/or delivery of goods or services under this Contract will
be borne by the Client, and paid in accordance with clause 7. Without
limiting the operation of the preceding sentence, the Client agrees to
pay all goods and services and other taxes imposed in respect of the
supply of goods or services under this Contract, provided that Redback Communications 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,
there is no relationship of agency created between the Customer and Redback Communications and the Customer deals directly and solely with the Internet
service provider.
2.4 When using the Service you must
comply with these Terms, the Redback Communications Acceptable Use Policy and any
other instructions by Redback Communications, 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 the Service, you must not break any laws, infringe the legal
rights of any person or cause harm to the Service or its users. For
example, You must not:
(a) interfere or disrupt with
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 unsolicited bulk emails;
(d) forge header information, email source addresses or user information;
(e) engage in any activities which expose Redback Communications to liability.
2.5
The client acknowledges that Redback Communications will act on the client's behalf
to request a change of MX record preference within their DNS in order
to facilitate the Redback Communications service. This will be via communications
between Redback Communications and the client ISP or DNS manager.
3. DELIVERY
All
goods are to be delivered, and all services are to be provided, by Redback Communications 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.
4. WARRANTIES AND EXTENT OF LIABILITY
4.1
The implied warranties, undertakings and conditions contained in the
Trade Practices Act 1974 (Cth), the Goods Act 1958 (Vic) and any other
legislation apply to this Contract, in addition to any express warranty
provided (whether by Redback Communications or by a third party) with goods or
services. All other warranties, express or implied, are excluded.
4.2
In the event that Redback Communications is found to be in breach of a warranty,
undertaking or condition under sub-clause 4.1, the liability of Redback Communications in respect of such breach, subject to sub-clause 4.3, will
be limited at the option of Redback Communications to one or more of the following
(as applicable):
(a) the supplying of the relevant goods or services again; or
(b) the payment of the cost of having the relevant goods or services supplied again; or
(c) the repair of the relevant goods; or
(d) the cost of having the relevant goods repaired.
4.3
If Redback Communications is held or found to be liable to the Client for any
matter relating to or arising in connection with this Contract, whether
based on an action or claim in contract, negligence, tort or otherwise,
the amount of damages the Client will be entitled to recover from Redback Communications will be limited to the amount paid by the Client under
clause 7.
4.4 The parties recognise that Redback Communications,
in providing product information to the Client, will need to rely on
warranties, statements, declarations and other information provided to Redback Communications (including by way of publication on the Internet or
otherwise) by manufacturers and other vendors of products to Redback Communications.
4.5 Redback Communications does not provide the client with any direct, or implied
warranty of the effectiveness of the Anti-Virus software that Redback Communications utilises.
5. ACCEPTANCE OF GOODS, SERVICES
5.1
The Client may inspect the goods or services upon delivery or
completion (as the case may be), and may reject within 7 days after
delivery or completion (as the case may be) any goods or services which
it believes are not in accordance with this Contract. Failure to reject
goods or services within this time frame constitutes acceptance. In
this clause, "completion" means the time at which the first part of the
services relevant to the cause for rejection has been completed (where
the reason for rejection could have been ascertained at the time).
5.2
The Client will not be liable to pay for any goods or services which
are not in accordance with this Contract.
6. ELECTRONIC TRANSACTIONS
Redback Communications 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 in respect of any
written notice or consent required pursuant to this Agreement.
7. PASSING OF PROPERTY, RISK
7.1 Risk in goods passes to the Client upon acceptance of the goods by the Client.
7.2
Property in goods passes to the Client upon receipt of full payment for
those goods by Redback Communications. The Client hereby authorises Redback Communications to
enter onto premises where any goods for which Redback Communications 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 Redback Communications separate from those for
which payment has been made, and to hold such goods as bailee for Redback Communications until payment has been made for them.
8. PAYMENT
The
Client must pay to Redback Communications the invoiced price of all goods and
services provided under this Contract (including all taxes and other
charges):
(a) in the case of goods supplied, within 7 days after delivery of the goods; and
(b) in the case of services, on payment terms set out below, or, if no
payment terms are set out below, payment in advance prior to delivery.
(c) Payment is by invoice only as stated in the application order form.
9. CONFIDENTIAL INFORMATION
All
information (in whatever form, including any text, drawings,
photographs or software) provided or made available by either party for
the purpose of this Contract, 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
Contract.
10. COPYRIGHT, OTHER INTELLECTUAL PROPERTY
The
copyright and other intellectual property in all material created by
either party for the purpose of this Contract, where copyright exists,
will be owned by Redback Communications unless the parties agree otherwise in
writing. Redback Communications grants to the Client a non-exclusive,
non-transferable, royalty-free licence to use such intellectual
property to the extent necessary to enable the Client to enjoy the full
benefit of the goods or services as contemplated by this Contract. Any
copyright or other intellectual property created prior to the date Redback Communications commences providing the goods or services will remain the
property of the party which owned it prior to the commencement of Redback Communications providing the goods or services.
11. TERM AND TERMINATION
11.1
This Contract commences on the date products or services ordered and
applies to the provision of all goods and services by Redback Communications to the
Client after that date, unless and until it is terminated by written
agreement between the parties..
11.2 If I Redback Communications
commits a breach of any provision of this Contract, 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 Contract
immediately by notice in writing.
11.3 If the Client
commits a breach of any provision of this Contract, and has not
remedied that failure within 14 days of being requested in writing by Redback Communications to do so, then the Redback Communications may terminate this Contract
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 Contract survive its termination.
11.5 Spam protection plans are subject to a 30 day cancellation policy. A written request
must be submitted to our accounts department 30 days prior to server being cancelled.
12. CO-OPERATION BY CLIENT
The
Client agrees to provide Redback Communications with all assistance necessary to
enable Redback Communications to perform its obligations under this Contract,
including access to all necessary information, personnel and equipment,
and a safe and appropriate working environment.
13. GOVERNING LAW
This
Contract is governed by the laws of Victoria, Australia. The parties
unconditionally submit to the 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
The
Customer acknowledges that all property and rights in the Information
belongs to Redback Communications absolutely for its own use and benefit, subject
to Redback Communications'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 Redback Communications is given notice of the contrary in
the Application Order Form, the information may also be made available
to and used by Redback Communications and/or its agents at any time for the purpose
of marketing and other commercial purposes. Pursuant to the Redback Communications
Privacy Policy, Redback Communications discloses to the Customer that:
The Customer may obtain access to the information by contacting Redback Communications;
Information is collected for the purpose of fulfilling this Agreement
and for present and future marketing and commercial purposes;
The information is usually disclosed to related entities of Redback Communications,
Internet service providers, its or their agents, suppliers and
customers;
there is no law specifically requiring the collection of the
information; If the information is only partly or not provided to Redback Communications, this may result in the rejection of the Order by Redback Communications.
16. REFUND
