Terms & Conditions

Overview

Mailservant is a trade name and registered service mark of Aspedia Australia Pty Ltd, a proprietry limited company, that owns and operates the hosted software interface website and email/electronic newsletter creation, distribution, management, monitoring, reporting and marketing software system with the URL: http://mailservant.net, which is referred to as the "Website" throughout the remainder of these terms and conditions of use.

Purpose

Aspedia provides our customers and other individuals through a hosted software web interface with a variety of software functionality and features, tools, information and resources to enable the creation, launch, distribution management, marketing, monitoring and reporting of online email marketing campaigns (collectively "Mailservant Services").

The purpose of these Terms and Conditions of Use is to set forth the specific terms and conditions under which registered users are permitted to use the Mailservant Website and Mailservant Services.

Software and Licencing


Access to the Mailservant Website and Services is provided subject to these Terms and Conditions of Use, which also incorporates the Mailservant Anti Spam Policy, Privacy Policy, and any other guidelines, rules or operating policies that Mailservant may develop and publish from time to time (collectively the "Agreement").

Aspedia agrees to license the Customer remote access to use the hosted version of the Mailservant Website, Software and Services based on this Agreement as specified in detail below and agreed in full.

Modifications/Changes

Aspedia Australia reserves the right to modify or change the Mailservant functionality, information, usability, resources, and other related services, or any of the terms of this Agreement and may discontinue, change, improve or revise any or all other aspects of the Services at its sole discretion by posting the revised Terms and Conditions of Use on our Website and/or by sending an email to the last email address you have provided to us for Mailservant account management and usage purposes.

All such changes shall become effective upon posting of the revised Agreement on the Mailservant website. Unless a dispute is received in writing in relation to the updated Agreement within ten (10) days of this advice, it will be deemed that these updated Terms and Conditions of Use (the "Agreement") are accepted and will be effective immediately with respect to any continued or new use of the Mailservant Website or Services.


Acceptance of Terms and Conditions of Use (the "Agreement")

This Agreement should be read carefully and understood before proceeding with the use of the Mailservant website or the associated software functionality and features, tools, information and resources and services. By continuing to engage Mailservant for storage of information or to generate email marketing campaigns, you accept and agree to be bound by this Agreement and the associated terms and conditions of use.

If you do not accept this Agreement, please exit the Mailservant Website and cease using Mailservant Services immediately.

AGREEMENT:

1. DEFINITIONS AND INTERPRETATION

1.1. In this Agreement, unless the contrary intention appears:

1.1.1. "Website" means the hosted software interface website and email/electronic newsletter creation, distribution, management, monitoring, reporting and marketing software system with the URL: http://mailservant.net, which is referred to as the "Website" within this document.

1.1.2. "Mailservant Services" means access and usage of a hosted software web interface with a variety of software functionality and features, tools, information and resources to enable the creation, launch, distribution management, marketing, monitoring and reporting of online email marketing campaigns (collectively "Mailservant Services")

1.1.3. "Access Keys" means any certificates, usernames, passwords or other security mechanisms issued to the Customer by Aspedia in order for the Customer to access the Hosted Software;

1.1.4. "Agreement" means the Mailservant Hosted Website and Services (as defined in 1.1.1 and 1.1.2 above) Terms and Conditions of Use (including but not limited to Anti Spam Policy, Privacy Policy, obscenity and defamation laws, and all other applicable guidelines, rules, laws and regulations which may be updated and published from time to time), the Registration/Order Form being in online or hardcopy format;

1.1.5. "Confidential Information" means information that by its nature is confidential, is designated by a party as confidential, or which the recipient knows or ought to know is confidential including, which in the case of Aspedia includes information about the Hosted Software that is not publicly available, and in the case of the Customer, the Customer Materials and Customer Data;

1.1.6. "Configuration Services" means services to configure Mailservant Services in accordance with the Customised Client Specifications (if any);

1.1.7. "Customer Materials" means all database information, client account and contact information, text, images, settings, and other materials provided directly by the Customer, for use in connection with the Website or Mailservant Services, or otherwise used, or incorporated by Aspedia into anything produced by Aspedia, in providing Customised Configuration Services. Customer Materials does not include any information, designs, processes or ideas introduced by Aspedia for use in a project, this Intellectual Property will remain the explicit property of Aspedia.

1.1.8. "Force Majeure" means a circumstance beyond the reasonable control of the Parties, which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires and any natural disaster, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, strikes, equipment or communication failures or delays or failures in the provision of goods or services by third parties.

1.1.9. "Hosting Period" means the period commencing on the date of registration or signing the Order Form and continuing as detailed in Section 2 of this Agreement.

1.1.10. "Hosted Software" means the hosted object code version of Aspedia Software, the Mailservant Website and associated Mailservant Services and includes all modifications and additions made by or on behalf of Aspedia to such software or services from time to time;

1.1.11. "Intellectual Property Rights" means copyright, trade mark, design, patent, semiconductor and circuit layout rights whether registered or not and including any rights to register such intellectual property;

1.1.12. "Order Form" means the registration/order form completed either on or offline by the Customer which forms part of this Agreement;

1.1.13. "Package" means the agreed and registered Mailservant package selected by the Customer as indicated in the Regsitration/Order Form;

1.1.14. "Specifications" means the specifications provided by the customer where custom development is required and agreed between the parties for configuring the Hosted Software;

1.1.15. "Customer Data" means the data created by the customer during the Term whilst using the Mailservant Website and Services;

1.1.16. "Term" means the term of the license as specified in clause 2. 1.;

1.1.17. "Damages" refers to any costs (including solicitor and own client costs), expenses, losses, claims or liability, or other harm that may have been inflicted or received.


1.2. In this Agreement, unless the contrary intention appears:

1.2.1. the clause headings are for ease of reference only and shall not be relevant to interpretation;

1.2.2. a reference to a clause number is a reference to all its subclauses;

1.2.3. words in the singular number include the plural and vice versa;

1.2.4. a reference to a person includes bodies corporate and unincorporated associations and partnerships;

1.2.5. a reference to a clause is a reference to a clause of this Agreement;

1.2.6. where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;

1.2.7. the recitals to this Agreement do not form part of the Agreement;

1.2.8. monetary references are references to Australian currency.

2. Term

2.1. This Agreement commences upon the date of registration or signup or the date as specified in the Aspedia Order Form/Proposal and will continue for the term of that package until the expiration of the indicated Mailservant package hosting period or where the hosting period has been expressly stated in the Registration/Order Form, the hosting period as expressly stated.

2.2. After the specified hosting period, the term will continue on a month by month basis until 30 days notice of cessation is provided in writing (detailing the customer user name, Mailservant account name, address, valid email address, contact telephone number, Agreement commencement date and termination reason and date) by the client to Aspedia; and

2.3. Use of Hosted Mailservant Website and Services by the Customer is deemed acceptable by the Customer of the terms and conditions detailed in this Agreement.

3. Rights of Use and Access

3.1 Mailservant Account, User Name and Password

3.1.1 As a user of Mailservant Services you are responsible for maintaining the confidentiality of any account name, login details and passwords provided to you. You are solely responsible for the use of any account provided to you, whether or not authorized by you. You agree to immediately notify Aspedia of any unauthorised use of any of your accounts.

3.2 Proprietary Rights Owned by Mailservant

3.2.1 You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the hosted software used to provide Mailservant Services, including, but not limited to, any patents, trademarks, service marks and copyrights.

3.3 Proprietary Rights Owned by You as the Client of Mailservant

3.3.1 You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.

3.4 General Rules

In using Mailservant Services you agree to:

3.4.1 not incorporate into your Electronic Newsletters any content including text, photos, video, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email or you are not otherwise permitted to use.

3.4.2 not post in any Electronic Newsletters created or sent using Mailservant Services, any false, misleading or incorrect information about you or the products and services that you offer including name, address, email address, subject line or any other misleading or incorrect information relating to you or your products and services.

3.4.3 not publish any materials containing sexually explicit text, photographs or other content, or content that is illegal, defamatory, obscene, indecent, threatening, abusive, harmful or hateful .

3.4.4 not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Mailservant system.

3.4.5 not include in any Electronic Newsletters any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party's rights, including, but not limited to, copyrights and privacy and publicity rights.

3.5. Mailservant Services

3.5.1. Mailservant Services are available only to persons who can enter a legally binding contract under applicable law. Without limiting the foregoing, Mailservant Services are not available to individuals under the age of eighteen (18) years of age.

3.5.2 By using the Mailservant services, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Mailservant services does not violate any applicable law or regulation. It should be noted that any uploads may be deleted and your subscription for usage may be terminated without warning, if we have reason to believe you are under eighteen (18) years of age.

3.5.3 If you do not qualify for use, your use of Mailservant Services is expressly prohibited.

3.6. Logging In and Accessing Mailservant

3.6.1 Registered customers must only access the Mailservant hosted software system through the login mechanism provided on the Mailservant Website under the Customer Login Section and using the dedicated secure login details, user name and password provided by Aspedia.

3.6.2. You as the Mailservant regsitered customer are responsible for procuring and maintaining at your own expense all hardware, software and peripherals including internet browser software, computer hardware, modems, internet accessibility and communication links necessary to remotely access your account via the Mailservant Website and use the hosted Software and Services.

3.7. Mailservant Usage

The Customer must not:

3.7.1. use the hosted software in an unlawful manner;

3.7.2. use it to send or distribute any messages, materials or content that may be considered to be unlawful.

3.7.3. use the software to send information and materials to unsolicitied email addresses and contacts.

The Customer must:

3.7.4. ensure that all emails sent using Mailservant include the following information:

• A single-click unsubscribe link that instantly removes the subscriber from your mailing list. Once a subscriber unsubscribes, you must not email them in the future.
o The name, physical address and contact information of the sender. If you're sending an email on behalf of a client, the client details will need to be included instead.

3.8. Rendering of Emails at Senders Address

3.8.1 Mailservant makes no guarantee that HTML messages will be rendered correctly on all recipient email programs. This is owing to the variety of email rendering systems used by end users as each renders HTML differently.

3.8.2 Aspedia makes every reasonable endeavour to ensure that email messages sent through Mailservant follow appropriate email standards, but cannot guarantee that messages will render consistently across all email platforms due to the number of different HTML composition tools in use by end users and their email providers.

3.8.3 Aspedia will not offer technical support to users using non-current, out-of-date and unsupported software applications to either access Mailservant website or services or to send or receive enewsletters.

4. Restrictions, Responsibilities and Intellectual Property Ownership

4.1. By engaging with Aspedia in an Agreement for Mailservant Services, you are not granted a licence to any software under this Agreement (except to the extent required for you to use non-transferable, non-exclusive Mailservant Services).

4.2. Subject to the rights of third parties, the Customer acknowledges that Aspedia owns all intellectual property rights within the Mailservant Website and associated Services and that except as expressly specified in this Agreement, the Customer has no licence or rights to access or use the Hosted Website, Software or associated Services.

4.3. Except to the extent permitted by an applicable law that cannot be excluded by Agreement, the Customer is not permitted to reproduce, distribute, sublicense, transmit, give access to, reverse engineer or decompile the Mailservant, Website, Hosted Software and associated Services.

4.4. Mailservant shall be used for your internal business purposes only and you shall not use Mailservant Website, Hosted Software or Services for any other purpose other than your own internal business purposes or for the benefit of a third party.

4.5. You agree that Mailservant services, software, company name, company logos and all related product and service names, design marks and slogans, and all other material comprising the software or services, are the property of Aspedia or its affiliates or suppliers. You are not authorized to use any of the above in any online of offline advertising, publicity, marketing collateral or any other commercial manner without the prior written consent of Aspedia Australia Pty Ltd.

4.6. Your use of the Mailservant Website and Services does not consistute any title or ownership in the website, the associated services, the software, company name, company logos and all related product and service names, design marks and slogans, and all other material comprising the software or services and is not a sale of any rights. All ownership rights remain with Aspedia Australia or its third party suppliers, as the case may be.

4.7. You represent, covenant, and warrant that you will use Mailservant Services only in compliance with this Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation).

4.8. You agree that you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party.

4.9. You hereby agree to indemnify and hold harmless Aspedia Australia Pty Ltd against any damages, losses, liabilities, settlements, and expenses in connection with any claim or action that arises from an alleged violation of the above or otherwise arising from or relating to your use of Mailservant Services.

4.10. You acknowledge and agree that you are responsible for the content, images, links, etc of any emails or messages sent using Mailservant Services.

4.11. Aspedia acknowledges that the Customer and its licensors own all intellectual property rights in the Customer Materials.

4.12. While Aspedia Australia has no obligation to monitor email campaigns and their content distributed by you, or to monitor your use of Mailservant Services, Aspedia may do so from time to time at its discretion and may remove any such content or cancel the use of Mailservant Services without refund if it believes it may be (or is alleged to be) in violation of any applicable laws as detailed in 4.7 of this Agreement.

4.13. Mailservant Services may only be used for lawful purposes. Distribution, transmission or solicitation of any material that is in violation of Australian or other laws that may apply in your local area is strictly prohibited. These violations may include material that is believed to be obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party's intellectual property rights.

4.14. Whilst registering and using the various features of Mailservant, you will be required to provide Aspedia with a range of personal and business information (e.g. full name, address, email and phone contact information, and other registration information as required). Aspedia may use this personal and business information as well as any technical information about your Mailservant account to communicate with you as a client and as you use Mailservant Services.

4.15. The Customer grants Aspedia a perpetual, royalty-free and non-exclusive licence to reproduce the Customer's trademark, business name and other mark or logo which designates the Customer's business, for the purposes of indicating the Customer as a current or past client of Aspedia.

4.16. Your subscriber lists or any customer information stored in the Mailservant system will not be used for any other purposes than those related to your use of the Mailservant system. In addition, your subscriber list and related customer information will not be shared with any other party or for any purpose including the sending of unsolicited commercial email.

4.17. All intellectual property rights in anything produced by Aspedia in carrying out the Configuration Services ("Work Products") will remain the property of Aspedia in respect of those configuration services, the hosted software and Mailservant services.

4.18. As a Mailservant customer you agree to implement and maintain a Privacy Policy that complies with all applicable privacy laws and which is at least as detailed and stringent as the Mailservant Privacy Policy.

4.19. You agree and acknowledge that all personal information that has been collected by you and stored in the Mailservant system has been collected with the relevant individual's consent, and that you have informed the individual of the purpose for which that information was collected, how it will be stored and that they agree that you may use this information for the pusposes of email distribution using the Mailservant system.

4.20. You agree that the customer information collected by you will not be used to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content deemed inappropriate or prohibited.

4.21. All rights not expressly granted are reserved.

4.22. Mailservant may contain materials produced by third parties or links to other websites which are provided by these third parties and are not under the direct control of Aspedia. Therefore, Aspedia accepts no responsibility or liability in respect of any such third party materials or for the operation or content of other websites (whether or not linked to Mailservant Services).

5. Risk

5.1. The Customer acknowledges that it is responsible for determining the suitability of the Mailservant Website, Hosted Software and Services for its purposes.

5.2. Aspedia does not make any representations or warrant that the Hosted Software or Mailservant Services will meet the particular needs of the Customer.

6. Data Storage

6.1. While Aspedia will use all commercial reasonable endeavours to ensure that the Customer Materials, and Customer Data as hosted by Mailservant through Aspedia Australia Pty Ltd, are protected from unauthorised access during the Term of this Agreement, the Customer acknowledges that:

6.1.1. Aspedia is not obliged to maintain backup copies of the Customer Materials and Customer Data during the Term of this Agreement; and

6.1.2. to the extent permitted by law, Aspedia will not be liable (whether in contract, tort including negligence, statute or otherwise) for any unauthorised access, misuse, corruption or loss of any of the Customer Materials or Customer Data.

7. Customised Configuration Services

7.1. Aspedia will carry out Customised Configuration Services for an additional cost to be agreed between the parties.

7.2. Customised Configuration Services will be carried out with all due skill and care and in a professional and competent manner.

8. Customer Materials

8.1 Upon registration to Mailservant you will be required to provide a range of personal and business information relevant to your account setup. You agree to provide true, accurate, current, and complete information about yourself as requested in the registration process. This personal and business information as well as technical information about your Mailservant account may be used to communicate with you as a client of Mailservant and as you use Mailservant Services.

8.2 Aspedia reserves the right to refuse registration of, or cancel a Mailservant account/s if it deems information about that account to be inappropriate, inaccurate, incomplete or untrue.

8.3 Aspedia reserves the right to refuse registration of, or cancel a Mailservant account/s if it deems that inappropriate or unlawful usage of the account.

8.4 Where Aspedia is providing Customised Setup Configuration Services and/or eNewsletter Template Design and Confguration, the Customer will deliver or make available to Aspedia, the Customer Materials required to undertake those services in a timely manner and in any event, in a manner that ensures that Aspedia shall have the necessary time to meet any project or other time schedules agreed between the parties.

8.5 The Customer grants a royalty free license to Aspedia to use and reproduce the Customer Materials for the sole purpose of providing the Hosted Software and associated services contemplated by this Agreement or as detailed in Section 4.15 of this Agreement.

8.6 The Customer warrants that the use and reproduction of the Customer Materials by the parties as contemplated by this Agreement will not infringe the intellectual property rights of any third party.

9. Protection of Access Keys, User Names and Passwords

9.1. As a Customer of Mailservant Services you are responsible for maintaining the confidentiality of any account access key, user name and password provided to you. You are solely responsible for the use of any account provided to you, whether or not authorised by you. You agree to immediately notify Aspedia Australia of any unauthorized use of any Mailservant account.

9.2. The Customer must take all reasonable security measures to ensure that the Access Keys, User Names and Passwords are not disclosed to any person, other than to those customer employees designated by the customer to use such Access Keys.

9.3 Should a designated employee with secuirty access to the Mailservant System cease employment with your business, immediate security measures should be put in place to update all relevant access keys, user names and passwords to maintain the integrity and security of the Mailservant System.

10. Payment

10.1. Both the number of email messages sent and the use of data transferred are tracked and measured by Mailservant. Mailservant accounts vary but generally allow you to send a specific number of email messages within a package with an additional cost per email after that package limit is reached.

10.2. Mailservant email packages and email delivery prices are subject to change at any time and are available on the Mailservant Website.

10.3. All fees paid for Mailservant Services are non-refundable unless an error in billing has occurred from Aspedia.

10.4. The customer will undertake payment for Mailservant services monthly in advance using a valid credit card accepted by Aspedia Australia, unless other payment arrangements have been made between you and an authorised Aspedia eBusiness Consultant. Unless specified otherwise in the Registration/Order Form, access to the Mailservsnt Website, Hosted Software and associated Services will not be provided to the Customer until the upfront monthly charges have been paid in full.

10.5. You hereby authorise Aspedia Australia to charge your credit card monthly as agreed in the Mailservant Registration process and at the end of each month charge your credit card for any additional email usage over and above your package limit.

10.6. Fees are payable in AUS dollars.

10.7. The total charges specified in the Registration/Order Form are inclusive of GST.

10.8. The Customer will be liable for any GST payable on a taxable supply (as that term is defined in A New Tax System (Goods and Services Tax) Act /999) made by Aspedia. The Customer will pay such GST at the same time it pays the Charge for such taxable supply.

10.9. All credit card payments are processed through a merchant facility under the business name Aspedia Australia Pty Ltd.

10.10. All direct debit payments are processed through a third party payment facility. Currenlty that facility is Paysmart but may be subject to change from time to time.

10.11. If Aspedia is for any reason unable to process an automatic payment via your supplied credit card or direct debit information, you will be notified via email for immediate rectification of your account.

10.12. All prices are subject to change. You will be notified accordingly of any package and pricing increases and changes by posting them to the Mailservant website.

10.13. An account re-activation fee will be incurred should an account need to be re-activated by Mailservant after de-activation due to
non-payment, an untimely authorisation for payment process, or any other breach of this Agreement. The re-activation fee is set at $75 inc GST but is subject to change from time to time.

10.14. Payment terms for all payments are strictly 1 month in advance and then at the end of month for any excess data usage after the maximum package limit has been reached.

10.15. Payment Defaults: Please note that should a credit card payment bounce when processing, a 2nd attempt will be made in the following 24-48 hours. If a second bounce occurs, our Accounts Manager will contact you in relation to payment processing. Should this arise a $35 administrative processing fee will be charged to you.

10.16. Should payment not be received immediately upon contact with our Accounts Manager, your Mailservant Services will be suspended until the payment issue is rectified and a reactivation forr as detailed in 10.13 above.

11. Confidential Information

11.1. Subject to clause 11.3, the parties:

11.1.1. will not disclose to a third party or use the other party's Confidential Information, without the prior written consent of the other party; and

11.1.2. will take all reasonable steps to ensure that their respective employees, agents and contractors do not use or disclose to a third party such information.

11.2. A party's obligations of confidence under clause 11.3 does not extend to information which:

11.2.1. becomes public knowledge through no fault of that party;

11.2.2. is already in that party's possession prior to disclosure by the other party of that information;

11.2.3. is independently developed by the party without the use of Confidential Information;

11.2.4. is received by that party from a third party who had a right to disclose such information; or

11.2.5. the party is legally compelled to disclose.

11.3. Aspedia may:

11.3.1. share Confidential Information on a confidential basis with IT, financial and legal service providers engaged by Aspedia to the extent reasonably necessary in order for those services providers to provide services to Aspedia; and

11.3.2. disclose that you are a customer of Aspedia for marketing and advertising purposes.

12. Co-operation

12.1. The parties will promptly sign all documents and do all things necessary to give effect to the terms of this Agreement.

12.2. The Customer will provide all reasonable assistance and cooperation required by Aspedia in order for Aspedia to perform its obligations under this Agreement.

13. Suspension and Termination

13.1. Aspedia may terminate this Agreement immediately by notice in writing to you if the Customer is in breach of any of clause of this Agreement or any applicable policies, rules, laws and regulations.

13.2. Either party may terminate this Agreement immediately by notice in writing where the other party has failed to rectify a breach which has been identified in writing within 10 days or the other party becomes subject to any form of insolvency administration.

13.3. Aspedia may, as an alternative to termination, suspend the Customer's access to Mailservant Services until the relevant breach has been rectified.

13.4. You may terminate this Agreement only in writing and at any time after the agreed package term as specified in the registration/order process by sending written notice to Aspedia Australia, PO Box 442, Stones Corner, 4120, Qld, Australia. Termination Notice must include your first name, last name, address, contact telephone number, a valid email address, your Mailservant user name and account name, your package commencement date and reason for termination.

13.5. No refunds will be issued if you terminate this Agreement unless your agreed package hosting period has expired and your account is in credit.

13.6. Aspedia Australia Pty Ltd may terminate this Agreement or the provision of services at any time with or without cause, and with or without notice. Aspedia Australia shall have no liability to you or any third party because of such termination. If Aspedia Australia terminates this Agreement because you breached this Agreement or any relevant and applicable laws, no refund will be issued even if you have unused, prepaid amounts for services under this Agreement.

13.7. Aspedia Australia may delete any of your archived data within 30 days after the date of termination. Any statutory retention requirements with respect to your business correspondence remain your responsibility. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranties, disclaimers and limitations of liability.

13.8. If a user does not log into their account for more than 120 days, Aspedia Australia has the right to change the status of the account to
inactive. When the account is deemed to be inactive (at Aspedia Australia's sole discretion), this is flagged in the Mailservant System. Should your account become inactive, a holding period of 30 days will be granted to allow you to re-activate your account. At the time that 30 days has lapsed, all data from your account including subscriber lists and data, account data, newsletter templates, campaigns, reports and statistical date may be permanently deleted from the Mailservant Database.

14. Consequences of Termination

14.1. Upon termination:

14.1.1. each party must immediately return to the other party, any confidential information and other materials owned by the other party (including any copies), or where such materials are stored electronically on the party's equipment, erase such materials; and

14.1.2. the Customer must immediately pay the charge for Mailservant Services where Aspedia has commenced hosting that software for the Customer and for any Custom Configuration Services performed in accordance with this Agreement prior to termination. Where Aspedia has terminated the Agreement, the Customer will pay for the customised configuration services up to that point on a times and materials basis at Aspedia Australia's then current standard rates.

14.2 Early Termination of Contract

14.2.1. On receiving early termination notice from the customer, Aspedia will provide a statement of the total outstanding fees owed by the client for the full term of the signed contract and will debit the existing billing account to finalise all payments.

15. Implied Terms

15.1. To the extent permitted by law, all conditions or warranties, which would otherwise be implied, are hereby excluded.

15.2. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement.

16. Limitation of Liability

16.1. To the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and Mailservant Services including any downloads from the Aspedia or Mailservant Websites.

16.2 Aspedia's liability in respect of this Agreement, including any goods or services provided pursuant to this Agreement, to the extent it is not capable of being lawfully excluded as specified in this Agreement, is limited to:

16.2.1. where the liability arises from defective goods or services provided by Aspedia or its contractors, or a failure by Aspedia to provide goods or services in accordance with this Agreement, the re-supply or rectification of the defective or non-complying goods or services; or

16.2.2. in all other cases, the Charges paid by the Customer under this Agreement.

16.3. In no event will Aspedia or any of our employees or representatives be liable (whether in contract, tort including negligence, statute or otherwise) for any indirect, consequential, special or punitive damages, or for any third party claims, loss of data, loss of time, loss of profits, loss of savings, loss of contracts, loss of revenue, loss of interest or loss of goodwill, which may be suffered or incurred by the Customer arising in any way from the use of the Mailservant Website, the Hosted Software, Mailservant Services, and any associated goods or services provided by Aspedia pursuant to this Agreement or otherwise resulting from any act or omission of Aspedia.

16.4 Our total liability in any event is limited to the amount, if any, actually paid by you for use of Mailservant Services for the one month period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.

17. No Warranties

17.1 To the maximum extent permitted by law, the material on this website and Mailservant Services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.

18. Indemnification

18.1. The Customer fully indemnifies Aspedia for any costs (including solicitor and own client costs), expenses, losses, claims or liability ("Damages") incurred or suffered by Aspedia directly or indirectly arising from:

18.1.1. a breach by the Customer of this Agreement;

18.1.2. the Customer's use of the Mailservant Services (unless the Damages have arisen as a result of a third person claiming that Mailservant Services infringes that person's intellectual property rights); or

18.1.3. the Customer Materials in any way whatsoever, including any costs of liability incurred as a result of any claims, proceedings or demands made or brought against Aspedia Australia by any client of the Customer.

18.1.4 you further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.

18.1.5 you agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims not permitted under this Agreement due to a "Limitation of Liability" or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of the Mailservnt Website or Mailservant Services.

18.2. Aspedia fully indemnifies the Customer for any costs (including solicitor and own client costs), expenses and liability incurred under any final judgment in proceedings brought by a third party against the Customer which determine that the Customer's use of Mailservant Services in accordance with this Agreement constitutes an infringement of that third party's intellectual property rights.

19. Solicitor/Attorney Fees

19.1 In the event that we file an action against you claiming a breach of this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney's fees in addition to any damages or other relief which we may be awarded.

20. Disclaimers

21.1 We disclaim and are not responsible for the conduct and behavior of any advertisers, linked websites or other users of the Mailservant System.

22. Disputes

22.1. In the event of any dispute arising between the parties in relation to this Agreement ("Dispute"), no party may commence any proceedings relating to the Dispute (except where the party seeks urgent interlocutory relief) unless the parties have first made genuine efforts to resolve the Dispute in accordance with this clause.

22.2. A party will give the other a notice of Dispute in connection with this Agreement. A representative from each party, with unfettered authority to resolve the Dispute, must use all reasonable endeavours to resolve the Dispute within 10 days of a notice of Dispute being received.

22.3. If the representatives are unable to resolve the Dispute within 10 days, the Dispute will be referred for mediation in Brisbane, Queensland with a mediator approved by the Australian Commercial Disputes Centre, or its successor. The mediation will be governed by the rules and guidelines agreed by the parties, or failing Agreement, the rules and guidelines set by the mediator (whether or not in conjunction with both parties).

23. Force Majeure

23.1. Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement (other than payment obligations) if such delay is due to Force Majeure as detailed in Clause 1.1.6 of this Agreement.

23.2. If a delay or failure of a party to perform its obligations is due to Force Majeure exceeds 14 days, either party may immediately terminate the Agreement on providing notice in writing to the other party.

24. Variation

24.1. This Agreement may not be varied unless in writing and signed by both parties.

25. Assignment

25.1. This Agreement may not be assigned by the Customer without Aspedia's prior written consent. However, in the event of a sale or transfer of the Customer's business to a third party, Aspedia will not unreasonably withhold consent provided the Customer supplies Aspedia with any information about the proposed assignee reasonably requested by Aspedia.

26. Waiver

26.1. No right under this Agreement shall be deemed to be waived except by notice in writing signed by the party waiving the right.

26.2. A waiver by Aspedia will not prejudice Aspedia's rights in respect of any subsequent breach of the Agreement by the Customer. Any failure by Aspedia to enforce its rights under this Agreement, or any delay or indulgence granted by Aspedia to the Customer, will not be construed as a waiver of Aspedia's rights.

27. Continuation

27.1. Those terms of this Agreement capable of having effect after termination will survive termination, including all clauses within this Agreement.

28. Severability

28.1. If any term, or part of a term, of this Agreement is determined by a court to be invalid, unlawful or unenforceable, the Agreement shall remain in full force apart from such term or part, which shall be deemed deleted.

29. Notices

29.1. Notices under this Agreement may be delivered by hand, by mail, by facsimile, or by email to:

29.1.1. the Customer - using the contact details provided in the Registration/Order Form;

29.1.2. Aspedia at:
Contact Name: Aspedia Australia Pty Ltd
Office Address: Suite 5.01 441 Logan Road, Stones Corner 4120 Australia
Postal Address: P.O. Box 441, Stones Corner 4120 Australia
Fax number: +61 7 3394 8226
Email: info@aspedia.net
or using such other contact details as notified to the other party in accordance with clause 25.1 from time to time.

29.2. Notices will be deemed to be given:

29.2.1. in the case of hand delivery upon receipt by an officer or authorised representative of the receiving party;

29.2.2. in the case of posting, 2 business days after despatch;

29.2.3. in the case of facsimile, upon successful completion of transmission received on a business day at the recipient during business hours, or otherwise at the commencement of the next business day; and

29.2.4. in the case of email, upon successful receipt of the email of the recipient's mail server on business day or the recipient during business hours, or otherwise at the commencement of the recipient's next business day.

30. Entire Agreement

30.1 This Agreement constitutes the entire Agreement between the parties for Mailservant Services and supersedes all prior representations, Agreements, statement and understandings, either verbal or in writing.

31. Counterparts

31.1 This Agreement may be executed in counterparts by the respective parties, each of which when so executed shall be deemed to be an original and all which taken together will constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged (which may include a facsimile copy of the Agreement in counterparts).

32. Jurisdiction

32.1. This Agreement shall be governed by and construed in accordance with the laws of the Queensland and the parties agree, subject to this Agreement that the Courts of that State or Territory shall have jurisdiction to entertain any action in respect of, or arising out of, this Agreement.

33. Export of Services or Technical Data

33.1 You may not remove or export from Australia or allow the export or re-export of Mailservant Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of Australia and all other applicable countries.

34. Miscellaneous

34.1. If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

34.2. Aspedia Australia and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

34.3. No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Aspedia Australia in any respect whatsoever

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