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Terms & Conditions

Supplier                                    Emailanywhere
PO Box
3087
Domain Road
South Yarra Victoria 3141 Australia

 

Recipient                                  The person, firm, corporation, governmental or semi-governmental authority that seeks the Services from the Supplier


Contract                                  These terms and conditions:


a      Constitute a contract between the Supplier and the Recipient, which prevail over any other terms, and conditions that may be inconsistent or contrary to those contained in this document.


b      Constitute a contract at the Time of receipt of Electronic Communications by the Supplier if transmitted by Electronic Means, or by written acknowledgement from the Supplier if the Recipient seeks the Services verbally or by means of a Document.


c      Apply to the exclusion of all other agreements and prior representations, unless subsequently evidenced in writing by the Supplier and the Recipient, and is the whole agreement between the Supplier and the Recipient.

 

Coverage General Terms            Unless otherwise stated in writing by the Supplier, these terms and conditions apply to the provision or supply of the Services by the Supplier, its employees, servants, agents and sub-contractors to the Recipient where the:


a      Recipient places a request for the Services, which either contain no terms and conditions of supply, or contains terms and conditions identical to those contained in this document, and


b       Supplier accepts such a request


Services                                    Any service normally provided for remuneration, at a distance, by electronic means and at the individual request of the Recipient of services, which includes, without limitation; a remote service consisting of Maintenance and Support, Web Hosting, internet access and email management, domain name registration, and co-hosting on the Supplier's network at facilities controlled by the Supplier.


¬†¬†¬†¬†¬†‚Äėat a distance‚Äô¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The Services are provided without the parties being simultaneously present


¬†¬†¬†¬† ‚Äėby electronic means‚Äô¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†The Services are sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means


‚Äėat the individual request of¬†a Recipient of Services
The Services are provided through the
a Recipient of Services                    transmission of data on individual request


Electronic Communication          A communication of information in the form of:


a)     Data, text or images by means of guided and/or unguided electromagnetic energy; or


b)     Speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system


Data                                         Includes the whole or part of a computer program within the meaning of the Copyright Act 1968 (Commonwealth)


Document                                  In addition to any document in writing, any drawing, map, plan, diagram, design, picture, or other image, tape, disk or other device or record embodying information in any form. A reference to writing or written includes faxes but not e-mail, or any communication transmitted by Electronic Means


Information System                   A system for generating, sending, receiving, storing or otherwise processing Electronic Communications


Time of dispatch of Electronic    If an electronic communication enters a single information

Communications system             outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters that information system.


Time of receipt of Electronic      a)    If the addressee of an electronic communication has designated

Communications an information         system for receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.


b)    If the addressee of an electronic communication has not designated an information system for receiving electronic communication, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication comes to the attention of the addressee.

 

Assignment                               The Recipient cannot assign the benefit of the rights under this agreement


Authorised Users                       Any employees and independent contractors of the Recipient who are entitled to use software or attached applications through the Services under this agreement


Business Day                             A day, other than Saturday or Sunday, during which banks are open for general banking business in Victoria Australia whose laws apply in the construction of this agreement


Co-Hosting                                Locating and connecting to the internet or servers under the control of the Recipient at facilities operated by the Supplier


Defined Words                           For convenience, the first letters of words and expressions defined in this agreement are in capital letters. The absence of a capital letter does not alone imply that the word or phrase has a different meaning from that given by its definition.


Fees & Payment                        1       The Recipient will pay or reimburse:


a)    Fees for the Services in advance, which may include initial set-up and Co-Hosting fees, and


b)    Fees for uploading or downloading data that exceeds the limit applicable to the Recipient for the Services, and


c)     All actual, reasonable travel expenses including, but not limited to, airfare, hotel, and meals incurred by the Supplier in performance of the Services, and


d)    GST, which shall be added to the Supplier's tax invoices


2      The Supplier will invoice the Recipient either monthly, quarterly or yearly in advance for all Services. Each invoice is due and payable five Business Days after the invoice date. Unpaid invoices incur interest as set by the Reserve Bank of Australia cash rate target plus 2%.


3      If the Recipient sets up an ongoing payment arrangement by credit, or charge card, periodical payments, or direct debit; the Recipient provides an irrevocable authority to the Supplier to debit any such account. The Supplier can disclose the Recipient’s personal and financial details to a financial institution or credit card issuing company to verify the account details, the validity of the card and the capacity to pay the Fees.


Governing Law                                  The laws of Victoria Australia govern these terms, conditions and Contract, and the Courts of Victoria Australia will hear, determine, and enforce proceedings to protect those rights, liabilities, or obligations.


Headings                                          Headings are for reference only, and do not affect the interpretation of these terms, conditions and agreement


Maintenance and Support                 Any error corrections, updates and upgrades that the Supplier may provide or perform to the software, Web-Hosting services, internet access and email management


Plural & Gender                                Unless inconsistent with the subject matter or context, words importing one gender include the other gender and words importing the singular number include the plural number and vice versa. A person includes an individual, body corporate, partnership, and government.


Successors & Assigns                       The expression “Supplier" and "Recipient" includes the respective parties and the respective trustees, executors, administrators or successors in title. This clause does not mean the Recipient can assign any right under this agreement.


Web-Hosting                                    The services that the Supplier provides to allow Authorised Users to access and use the appropriate software, including hosting set-up and ongoing services


General Obligations                           1      The Supplier will perform the Services on payment of the Fees by the Recipient.


2      The Supplier undertakes to perform the Services with all reasonable skill and care.


3      The Supplier grants to the Recipient on and subject to the terms and conditions of this agreement a non-exclusive, non-transferable licence to allow Authorised Users to access software through the Services and to use the software solely for the Recipient’s purposes;


4      The Recipient shall not store, distribute or transmit any material through the Services that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;

 

5      The Recipient shall:


(a)   In order to render the Services, security access information, and software, interfaces to the Recipient's other business applications, provide the Supplier with all necessary:


(i)      Co-operation under this agreement; and


(ii)     Access to information required by the Supplier;


(b)   Comply with all applicable Australian laws and regulations with respect to its activities under this agreement, and includes without limitation, EU Directives 98/34/EC and 98/48/EC of the European Parliament; and


(c)   Carry out all other Recipient responsibilities set out in this agreement in a timely and efficient manner, and


(d)    Be responsible to maintain any server that it Co-Host with the Supplier and warrants that it has the right to store, distribute, transmit, sell, trade or exchange or otherwise make available any Data that its places on any servers operated, or controlled by the Supplier, or on servers Co-Hosted by the Supplier, and


(e)   Be responsible for any contract formed with any third party, and will indemnify the Supplier from any suits, charges, proceedings, claims or causes of action arising from any such contract, and


(f)   Be responsible to secure its site, which includes, without limitation:


i)     Creating unique passwords combining alpha and numerical symbols; and


ii)    Ensuring proper IT governance policies are in place that deal with protection and risk management, and


(g)   Not store, distribute or promote components that may be used to compromise network security or have the potential to be used to threaten, damage, effect or alter the performance or operation of any domain, server, computer or site


6     The Recipient acknowledges and understands that:


a)    The Services may not be suitable for applications which need continuous or fault free service, and


b)    The Supplier is not responsible for disruptions to Services that may occur on the internet, or that the Supplier is liable in the event of outages in the Services, and


c)     It may be necessary to suspend the Services for a period to maintain, repair, or update the Supplier’s servers or equipment and no notification is necessary for interruptions of less than 20 minutes. In any event, no refund is available for any such interruption, and


Responsibility                                    1     This clause sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Recipient for any:


a)      Breach of this agreement;


b)      Use made by the Recipient of the Services, and


c)      Representation, statement or tortuous act or omission (including negligence) arising under or in connection with this agreement.


2     Except as expressly and specifically provided in this agreement:


a)    The Recipient assumes sole responsibility for results obtained from the use of the Services by the Recipient, and for conclusions drawn from such use. The Supplier has no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Recipient in connection with the Services, or any actions taken by the Supplier at the Recipient's direction; and


b)    All warranties, conditions and other terms implied by statute or common law are as permitted by law, excluded from this agreement.


3      a)   The Supplier shall not be liable for any loss of profits, loss of business, depletion of goodwill and/or similar losses or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising; and


b)      The Supplier's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement is limited to a pro-rata calculation of Fees over the period of interruption of the Services (where the interruption exceed thirty Business Days.


Term & Termination                          1      This agreement commences on the Time of the receipt of the Electronic Communications by the Supplier and continues, unless otherwise terminated as provided in accordance with these terms and conditions.


2     This agreement shall automatically renew for yearly periods, unless either party notifies the other, in writing, at least ninety Business Days before ending the term.


3     Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:


a)    The other party commits a material breach of any of the terms of this agreement and (if such a breach is remediable) fails to remedy that breach within seven Business Days of that party being notified in writing of the breach; or


b)    An order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party; or


c)    A receiver is appointed of any of the other party's assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party's assets; or


d)    The other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way, or becomes bankrupt; or


e)    The other party ceases, or threatens to cease, to trade.



4      The Supplier can immediately suspend or terminate the Services, where the Recipient:


a)     Breaches any of these terms and conditions, or


b)     Fails to pay Fees under this agreement, or the Recipient’s nominated financial institution refuses or dishonours the payment method, or


c)     Does not notify the Supplier changes to any of its details


5      On termination of this agreement for any reason:


a)     All licences granted under this agreement shall immediately terminate;


b)     Subject to full payment by the Recipient of Fees to the Supplier, each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;


c)     The accrued rights of the parties as at termination or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination are not affected or prejudiced.


Force Majeure                           The Supplier has no liability to the Recipient under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions, or accidents beyond its reasonable control. This includes, without limitation; strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Recipient is notified of such an event and its expected duration.


Variation                                  The Supplier:


a)     Can amend these terms, conditions, and Fees that govern this agreement;


b)     Give the Recipient Notice of any changes; however, if the Supplier uses Electronic Communications as the means of notification then the changes apply from the Time of Dispatch of Electronic Communications.


Waiver                                      A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.


Severance                                 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable, or illegal provision would be valid, enforceable, or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.


Notices                                      Any written notice necessary under this agreement is given by delivering it by hand at, or by sending it by prepaid post (airmail if to an address outside the country of posting) to, the address of the relevant party as set out in this agreement, or another address as either party notifies to the other from time to time. Any notice given according to the above procedure is given at the time of delivery (if delivered by hand) and when received (if sent by post). Any notice transmitted by Electronic Communication is given at the Time of Receipt of Electronic Communications.