BrandMail Terms and Conditions
1. Important Notice
This page sets out the terms and conditions upon which BrandMail (“We”, “Our” and “Us”) will provide services to its customers (“You” and “Your”). This page creates important legal rights and obligation upon Us, as well as You.
By clicking on the “I AGREE” button below you offer to enter into the following terms and conditions with Us.
If you do not agree with these terms and conditions You should click on the “NO THANKS” button below.
If You decide to use the Services by clicking on the “I AGREE” button, these terms and conditions become a legally binding agreement between You and Us (“Our Agreement”).
In Our Agreement, the following words and phrases have the following meanings:
2.1. API means the BrandMail Application Programming Interface which allows remote access to the Services.
2.2. Availability means Your ability to access the Services on the BrandMail Server(s).
2.3. Business Day means a day upon which banks are ordinarily open for business in Sydney, New South Wales.
2.4. Commencement Date means the date that that You clicked on the “I AGREE” button.
2.5. Content means data, information, images, and all other content that You put onto the BrandMail Servers.
2.6. Fees means:
a. Our fees for Services as appearing on our website and updated from time to time, and
b. any other fees You and We agree upon at Our prevailing rates for other Services.
2.7. Force Majeure means a circumstance beyond Our reasonable control results in Us being unable to observe or perform on time an obligation in Our Agreement, including:-
a. acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, power supply disruptions (howsoever caused), internet downtime and any natural disaster;
b. acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
c. industrial action or strikes.
2.8. Harmful Code means viruses, worms, trojan horses, spyware, malware, backdoor, and other computer programs and software code that harm a computer or a computer program, or operate in some other harmful or destructive way to hardware, software, data, or communications systems.
2.9. Knowledge Centre means the online help application forming part of the Services.
2.10. Multimedia Services means the multimedia services the scope of which is agreed upon in writing between Us and You.
2.11. Programming Services means computer programming services the scope of which is agreed upon in writing from time to time between BrandMail and You.
2.12. RRP (Recommended Retail Price) means all fees inclusive of GST or administration charges.
2.13. Services means the Services, the Support Services, the Training Services, the Programming Services, and the Multimedia Services.
2.14. Support Services means the support services we provide, as described elsewhere on Our website.
2.15. System Maintenance Time means the time that the BrandMail Servers are inaccessible for reasons of systems maintenance, improvement, or upgrading.
2.16. Term means the term of Our Agreement, from the Commencement Date, until Our Agreement is terminated in accordance with clause 4.
2.17. Training Services means the personal training services the scope of which is agreed upon in writing from time to time between BrandMail and You.
2.18. Services means the use of BrandMail’s applications product for SMS and email e-marketing, including all modules and features of the application from time to time accessible by internet from the BrandMail Servers, including data hosting and data management features.
2.19. BrandMail Server(s) means the hardware infrastructure where We host the Services.
3.1. In this Agreement, unless the contrary intention appears:-
a. words in the singular number include the plural and vice versa;
b. words importing a gender include any other gender;
c. a reference to a person includes bodies corporate and unincorporated associations and partnerships;
d. 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;
e. a reference to a party includes its successors and assigns (where permitted);
f. a reference to the any schedule includes a reference to any part of that schedule which is incorporated by reference;
g. the recitals to this Agreement do not form part of the Agreement;
h. monetary references are references to Australian currency.
3.2. If any term, covenant, clause or condition of this Agreement, or the application of it to any person or circumstance, is deemed to be invalid or unenforceable, the remaining terms, covenants and conditions will not be affected and will be valid and enforceable.
4. Term and Termination
4.1. Our Agreement commences on the Commencement Date.
4.2. Our Agreement continues until it is terminated by either You or We giving to the other a Written Notice terminating Our Agreement.
4.3. You or We may terminate Our Agreement at any time, without giving any reason for termination.
4.4. Notwithstanding the termination of Our Agreement, You must pay all amounts owing to Us for Services provided up to the time of termination which date is determined by clause 4.2.
a. Subject to clause 4.4, after the date of termination, any Content required to be extracted, where possible, from the Services will attract additional Fees.
5.1. We will promptly provide to You all necessary login codes to access the Services on the BrandMail Servers.
5.2. For the Term, We will provide the Services to You by enabling You (through the login codes notified by Us to You) to access the Services in accordance with Our Agreement.
5.3. You acknowledge that internet servers and links are susceptible to hacking, crashes and down time.
5.4. Subject to a Force Majeure Event, and to System Maintenance Time, We will ensure (by ping test) that the Servers are available through the internet, 24 hours per day, for at least 99.8% of the time.
5.5. We do not warrant any response rate or download time in relation to the Services.
5.6. We may, at Our own discretion, temporarily suspend the Services for the purpose of system repair, maintenance or improvement.
5.7. When it is reasonably practicable under the circumstances, We will provide You prior notice of any System Maintenance Time, the time of its commencement, and likely duration.
5.8. In the event of any service outage, We will restore the Services as soon as is reasonably practicable.
5.9. You acknowledge that it is impossible to maintain flawless security, but We will take reasonable steps to prevent security breaches in Your server\’s interaction with the BrandMail Servers.
5.11. BrandMail will comply with Chapter 2 of the Information Privacy Act 2009.
5.12. You acknowledge that any Content uploaded for public view in the Knowledge Centre is free of copyright and We may edit, redisplay or remove that Content at Our sole discretion at any time.
6. Your Responsibilities
6.1. You must comply with the SPAM Act 2003 and any other similar law in all countries of the world.
6.2. You must ensure the security of Your login codes to the Services, and that only properly authorised persons have access to those codes.
6.3. You must pay the Fees in relation to the Services accessed with Your login codes by any person to whom You have provided Your login codes or who obtained those login codes from You, whether authorised by You or not.
6.4. You will procure that Your employees and other persons authorised by You to access the BrandMail Servers comply with Our Agreement.
6.5. You agree that You are solely responsible for implementing Your own procedures to satisfy Your own requirements for accuracy of data input and output and Content, and for maintaining a means external to Us for the reconstruction of any of Your lost data or Content.
6.6. You warrant that the Content will not infringe the copyright or other intellectual property rights of another person.
6.7. You must not disseminate through the Services any Content that is:
a. abusive, harassing or obscene,
c. illegal in Australia,
d. illegal in any country to which the dissemination occurs,
e. Harmful Code, or,
f. defamatory or offensive.
6.8. You indemnify Us from and against any loss or damage (including loss of profits) that We may suffer arising from:
a. any breach by You of the terms of Our Agreement,
b. any misuse of Your login codes by You, or by any person whose access to Your login codes was from You, or Your failure to maintain the security of Your login codes, including any misuse that results in Content loss or misuse or Harmful Code upon the BrandMail Servers, and
c. any breach by You of Our Agreement or any misuse of Your login codes resulting in any IP Address becoming subject to blacklisting (for example by SORBS), including the cost (approximately $150 per IP Address) to Us of remedying any blacklisting.
6.9. You agree to use the Services in an acceptable manner where your usage is concurrent with expected usage which includes, among other things:
a. Prohibiting the use of automated methods to extract data from the Services (not including the API)
b. Not causing inbound data, excluding Content uploaded into the file manager that has its own rates above 50Mb, to the BrandMail Servers to exceed 100Mb per month, where excess data will be charged at a rate published within our API, web site or other documentation
6.10. You are responsible for your and any of your clients Content and shall be responsible for maintaining a backup copy of the Content. 6.11. You agree not to use the Service for any other purpose than that for which it is intended.
7. Support Services
7.1. We will provide the Support Services during usual business hours between 8.30am and 5.00pm on Business Days.
7.2. Support Services will be provided in the first instance by on line help accessible within the Services, in the second instance by email, and in the third instance by telephone (contact details available on Our webpage).
7.3. Free Support Services are limited to “How To” questions on product usage. Other Support Services may attract fees. At all times You will be notified prior to any fees being charged to You.
8. Other Services
8.1. You and We may agree in writing that We will undertake Programming Services, Training Services, Multimedia Services or specific Support Services. 8.2. Any such agreement in writing will set out
a. the scope of the work to be undertaken,
b. the remuneration to be paid by You to Us, and
c. the timeframe for the work to be undertaken.
9.1. You must pay the Fees to Us, plus the applicable goods and services tax; or where your organisation resides outside Australia, administration fees that are included in the RRP of the Services.
9.2. We must provide to You an invoice complying with the A New Tax System (Goods and Services Tax) Act 1999.
9.3. You must pay invoices within the time notified upon Our invoices.
10. Exclusions and Limitations of Liability
10.1. You use the Services, including the Services entirely at Your own risk.
10.2. You acknowledge that We have not made any representation or warranty that is not expressly contained in Our Agreement.
10.3. You do not rely upon any statement or representation by Us or on Our behalf that is not expressly contained in Our Agreement.
10.4. You acknowledge that We have not made any warranty or representation as to
a. the suitability of any Service for any purpose or any particular purpose;
b. whether any Service is of merchantable quality; or
c. whether any Service will be free of errors or bugs.
10.5. We exclude any liability for any Harmful Code that You may download from Our website.
10.6. We shall have no liability to You arising from any system downtime, any System Maintenance Time, or any Force Majeure Event, and You are not entitled to any setoff, discount, refund or credit arising from any of the foregoing.
10.7. Our maximum liability to You for any loss or damage whatsoever shall be the re-performance of the Services.
11.1. We will maintain the Content in confidence, and will not disclose the Content without Your prior written consent.
11.2. Clause 11.1 does not apply to the extent that We have a legal obligation to disclose the Content.
11.3. We will not sell the Content to any person.
11.4. You acknowledge that some of Your Content (such as email addresses in your database/s) may at the same time be part of the content of Our other customers.
11.5. You acknowledge that We have an obligation to report any illegal act by You, and accordingly We are under no obligation of confidentiality in relation to any such illegal act by You.
12.1. We will promptly notify each other in writing of any dispute in connection with Our Agreement.
12.2. Upon the written notification of a dispute, You and We shall use our best endeavours to resolve the dispute in good faith, and expeditiously.
12.3. If a dispute has not been resolved within 5 Business Days, You and We will refer the matter to our respective Chief Executive Officers (or a senior person delegated by a Chief Executive Officer), who shall use their best endeavours to resolve the dispute in good faith, and expeditiously.
12.4. If the dispute has still not been resolved with a further 5 Business Days, You and We will use our best endeavours in good faith to within a further 5 Business Days agree upon an alternative dispute resolution process (such as mediation, arbitration, conciliation, or expert determination) to resolve the dispute, and shall in good faith implement that alternative dispute resolution process.
12.5. Neither You nor We may commence legal proceedings against the other until You and We have complied with clauses 12.1 to 12.4. 12.6. Clause 12.5 does not apply to any urgent interlocutory relief.
13. Variation of our Agreement
13.1. We may vary any term of Our Agreement at any time. Notification of any variation will be posted within the Services.
13.2. The variation takes effect 30 days after notice of the variation is posted.
13.3. If You do not agree to be bound by the variation, You may by written notice to Us, terminate this Agreement before the expiration of that 30 day period.
14. Service of Notices
14.1. Any notice (including a notice under clause 12) may be served by delivery to, or sending it by post or facsimile to the party to be served, or by sending it by email:
a. if to Us, send to email@example.com or any other email We may post,
b. if to You, to an email address notified by You to Us in Your management of Your online BrandMail account.
14.2. A notice that is posted shall be deemed received seven days after the date of posting.
15. Governing Law
15.1. Our Agreement is governed by and to be construed according to the law of New South Wales.
15.2. You and We irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.
16. Cost Estimates (Quotes) and Proposals
BrandMail may submit project proposals and quotes to you based on your requirements supplied. Specifications proposed and development costs quoted are based on our interpretation of the details supplied by you. These costs are subject to change once the final requirements of the project are known or if the initial requirements supplied at the time of quoting were to change.
All costs shown in our quotes, proposals, website and other marketing material are exclusive of GST, unless otherwise stated. GST of 10% applies to all invoices issued by BrandMail (The Digital Crowds Pty Ltd).
17. Payment terms
BrandMail requires a deposit payment prior to any work been carried out.
For design and product development services (email design, email coding, web design, web development, and similar services)
- 50% upfront payment is required for projects such as web site design and development.
- Where the total value of the project is above $10,000, a second payment may be charged when the product is staging (developed and ready to test). Value of the second payment will be agreed during the quoting staging and will be stated under the ‘payment terms’ on the quote.
- Balance payment is due with in the 14 days of the invoice.
For email design
- 100% upfront payment required if the total cost of the project is less than $1,000.
- Email design projects require 100% payment upfront due to their faster turnaround time.
For website and domain hosting
- For web hosting, domain hosting, BrandMail will invoice up front prior to the due date. Digital Glare may switch off any ongoing services without prior notice if the payment(s) has not been received on or before the date due. You may be required to pay a reactivation fee when reactivating a deactivated service.
- BrandMail will not renew your domain name if the renewal payment has not been received on time. Once the domain name has expired BrandMail cannot guarantee the renewal of this domain name.
For email marketing system (VeMail) access
- For email marketing BrandMail platform access and usage, BrandMail will invoice at the beginning of the month for the usage of previous month. BrandMail may switch off your email marketing account without prior notice if the payment(s) has not been received on or before the date due. You may be required to pay a reactivation fee when reactivating a deactivated service.
- Once your email marketing BrandMail platform has been deactivated, you will lose access to your databases, email and SMS messages, reports and other files and information stored in your account.
- If your account is integrated with another application or a website, this integration will cease to function.
BrandMail will not schedule or start any work on your project until the necessary upfront payments are received. Accepting a quote provided by BrandMail does not mean we will start your project immediately. When you accept a quote you will receive an invoice immediately for the upfront payment. Please pay as soon as possible to avoid delays.
BrandMail will not be responsible for your project delivery delays due to delays in paying your invoice.
All invoices supplied by BrandMail are due in 14 days from the date of the invoice unless otherwise stated on the invoice.
18. Cancellation of a project and refund policy
Cancelling the project after approval of the quote and deposit has been paid may result in part or full payment for the project based on the level of completion at the time of cancellation.
Cancellation of projects will attracted a minimum of 20% admin fee which will cover the cost incurred during the project planing, quoting and scheduling process.
19. Intellectual Property & Copyright
All created artwork, files, code and documents remain the property of BrandMail until the complete payment for the project has been received. You are not to use or recreate any artwork, concepts, code and documents given to you by BrandMail during the project until the full payment as agreed to on the quote has been paid.
If full payment for the project has not been received, BrandMail has the right to re-user, sell or use the materiel developed for you on other projects.