Etools provides a variety of emarketings services including HTML email communications and statistical reporting. For this Agreement, these shall be collectively referred to as the Services. Since many of these Services use resources that are shared by many users, the benefits of using the Services must be balanced with certain obligations and responsibilities to ensure that all users maintain a quality experience.
If you are not in agreement with these Terms and Conditions then you must notify us via email and discontinue use of our Services immediately.
TERMS DEFINED IN THIS AGREEMENT
‘Agreement’ means this document and any other supplementary documents as agreed between the parties.
‘Authorised Signatory’ means the Customers authorised representative as notified by the Customer to Etools as defined in Notifications.
‘Authority’ includes any government, semi or local government statutory, public or other authority or body having jurisdiction over the Services or in connection with the Services.
‘Business Day’ means a day on which trading banks are open for general banking business in Melbourne, Victoria, Australia.
‘Customer and/or Client’ either of these Terms means the Customer, you
‘Commencement Date’ means the date that Services were activated on the Etools website (secure.etools.com.au) and made available to the Customer.
‘Customer’s Personnel’ means the Customer’s authorised agents, contractors, employees or other representatives as notified to Etools from time to time.
‘Emergency’ means an unplanned interruption howsoever caused (other than of a minor or insignificant nature) which is reasonably capable of preventing either the operation or access to the Services.
‘Fees’ means the fees / amounts due for usage of the Services as stated in Etools invoices.
‘Force Majeure Event’ means an act of God, strike, lockout or other interference with work, war declared or undeclared, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental restraint, expropriation, prohibition, intervention, direction or embargo and any other cause which is not reasonably within the control of the party affected.
‘Intellectual Property Rights’ means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trademarks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields.
‘Laws’ means the requirement of all statutes, rules, regulations, proclamations, ordinances, or by-laws, present or future.
‘Losses’ means all losses including but not limited to liabilities, damages, costs and expenses (including legal fees on a solicitor / client basis and disbursements and costs of investigation, litigation, settlement, judgement, interest and penalties).
‘Material(s) / Data’ means any tangible or intangible material and includes documents, records, equipment and any other goods, any software (whether in human or machine readable form), text, logos, images, audio, movie clips and/or content in any form provided by either Party to this Agreement.
‘Notification’ means written notification, in either letter, fax or email form.
‘Outage’ means any period of time planned in advance by Etools during which the Services are unavailable or access to the Services is unavailable.
‘Payment Options / Billing Options’ means Etools approved methods for a Customer to pay for their Services. Approved Billing Options are; EFT, cheque, customer authorised (offline) direct debit of a credit card (Visa and Mastercard only), on-line credit card payment and Paypal or Paymate.
‘Promotions ‘ means any special offers of limited duration made by Etools from time to time to new and/or existing Customers. A Promotion may have any Terms specific to that Promotion (‘Promotional Terms’)
‘Publishing Policy’ means the document at www.etools.com.au. All material available via the Services must comply with the Publishing Policy.
‘Receipt’ means Etools’ written acknowledgement of receipt of Notification.
‘Requirements’ means any reasonable requirements, notices, orders or direction received from or given by Etools or any other Authority. The Requirements shall be binding on the Customer.
“Service’ / ‘Services’ means those Services referred to in a Etools invoice and/or any offer of service as listed at www.etools.com.au .
'Subscriber' an email address belonging to the contact of a customer/client
‘Suspended’ means the denial of access to the Services for the Customer and/or members of the public
‘Tax’ means any tax or similar liability including sales, excise, GST, fringe benefits, personal, property, payroll and other taxes, stamp duty, customs, levies, WorkCover and the like but does not include any taxes based or payable on either party’s income.
‘Term’ means the Agreement period set out in the Service offering as selected by the Customer. The Term begins on the Commencement Date.
‘Terminated’ means the deactivation/closing of the Services that results in the removal of all Customer Data from Etools systems/network.
‘Etools’ means a service trading name owned by Web Prophets Pty Ltd ABN 25 089 751 593
1.1 These are the Standard Terms and Conditions which apply to all Hosting Services with Etools. In addition to these terms and conditions, you must also comply with:
Any conditions contained in the notes to the Services you acquire;
Any additional terms which apply to the Services you acquire;
Our Publishing Policy
The Spam Act 2003
Our operational procedures for use of the Service and
1.2 The Agreement made between the Customer and Etools based on these Terms and beginning on the Commencement Date.
1.3 These Terms constitute the Agreement in its entirety and supersede prior Agreements.
1.4 Etools may vary these Terms, the amount charged for any Services, and/or the Services at any time by providing appropriate Notification. Any variation pursuant to this clause will become effective upon publication of the notice on our website, http://www.etools.com.au. Where we vary the prices for Services, we will provide at least 30 days Notification of the change and the new prices will apply from the first applicable invoicing date following the 30-day Notification. Any continued use of the Services following this date will be deemed to constitute acceptance of the amended Terms by the Customer.
1.5 The Customer consents to Etools obtaining a credit reporting agency report concerning the creditworthiness of the Customer and its principles for the purpose of assessment by us of an application for Services.
1.6 A provision of, or a right created under this Agreement, may not be waived except in writing signed by the party granting the waiver, or varied except in writing signed by both parties.
1.7 The Customer shall not on-sell any of the Services to any third party unless they have accepted and signed Etools Reseller Agreement. The Reseller Agreement is available upon request.
1.8 This Agreement and all Services offered herein are governed by the law in force in Victoria, Australia.
1.9 This Agreement will continue for the Term of the Service that you have paid for. This Agreement will automatically renew under the same Agreement and duration at the end of the initial Term unless the Services are Terminated.
2.1 Etools will create a unique Customer Account for each Customer. Several different Services may be available for each Customer Account.
2.2 Each Customer will be provided with usernames and passwords appropriate to make use of the Services they have acquired. There may be different username/password combinations required for; service access, FTP access, etc.
2.3 We must perform scheduled maintenance from time to time. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers. If scheduled maintenance requires the Services to be offline for more than 15 minutes we will post details of the scheduled maintenance on the home page of our website. We will provide Notification to affected Customers at least 3 days prior to the planned maintenance.
2.4 We may need to perform unscheduled maintenance. If unscheduled maintenance requires the Services to be offline for more than 30 minutes, we will post details on our Facebook page, Twitter and/or on the home page of our website.
2.5 We will archive your data onto backup mechanisms on a regular basis for the purposes of disaster recovery (generally every 24 hours). In the event of equipment failure or data corruption, we will restore from the last known good archive. In the event of corruption of all of our archives, or in the event that an old archive is used to restore data, it is possible that some current information/data may be missing. The Customer acknowledges that they may need to restore this information/data from their own archives or other third-party products. You must maintain a recent copy of your data at all times. We will not be liable for incomplete, out-of-date, corrupt or otherwise deficient Customer data recovered from our backups.
2.6 You agree to Etools use of spam and virus filters which may require us to use third-party equipment and/or Services to monitor and filter email traffic between our equipment and the Internet. You agree that we will not be liable for any loss or damage resulting from the use of spam or virus filters.
2.7 The Services are provided by Etools from a Data Centre/s located in Australia. Etools will determine, in its absolute discretion, the Data Centre location from which your Services are provided. Etools reserves the right to migrate your Services to a new platform and/or Data Centre.
2.8 The Customer has no rights to the hardware and other infrastructure and/or facilities used by Etools to deliver the Services.
2.9 The Customer understands that any email or other storage available through the Services are not to be used as a long-term archive.
2.10 Although many of Etools Services are designed to provide redundancy, the Customer shall ensure that they undertake additional archive solutions necessary to protect their data. The Customer understands that they must maintain their own copy of any content published via the Services and that the Services should never be used as any "master" or primary or critical copy of any content.
2.11 Etools does not permit the use of our network/infrastructure to send or originate Unsolicited Email messages / SPAM. The Customer must not send Unsolicited email (whether individual or bulk emails) via Etools network/infrastructure. The Customers Services must not be referenced or linked to in Unsolicited email. Etools reserves the right to determine what violates this clause. Violation may result in Suspension or Termination of Services without refund. The Customer may also be liable for costs to reinstate Etools services to the condition they were in prior to this violation.
2.12 Pornography and sex-related material and merchandising are expressly prohibited on the Etools network. This is also true for sites that promote illegal activity of any type or content that may be damaging to our network. Links to such materials are also prohibited. The Customer acknowledges that if we are made aware of content that is determined by Laws to be unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, we reserve the right to cancel without refund or Notification any Services that violates this content policy.
2.13 The Customer is given the authority to access data and resources pertaining to their Services only. With the exception of having read-only access to log files, the Customer has no authority whatsoever to access, read or write data to any other location on Etools network/infrastructure.
2.14 Should any part of this Agreement be or become invalid or unenforceable, that part shall be severed from this Agreement and such invalidity shall not affect the validity of the remaining provisions of the Agreement.
3.1 The Customer must pay for the Services as invoiced by Etools in accordance with your Agreement. In general all Services are paid in advance unless stated otherwise in your Agreement. If you have chosen an annual Term for your Services, they will be automatically rolled over for a further annual Term at the end of the current Term on the same Terms and Conditions as the previous Agreement. You must provide Notification prior to the end of the current Term if you wish to terminate your Services.
3.2 You must pay all charges for Services, including but not limited to traffic and/or storage charges and any other amounts, incurred by you or any Customers Personnel or incurred as a result of any use of your password (whether authorised or not) in accordance with the Payment Option selected.
3.3 Payment for all Services must be received by the due date listed on Etools invoice unless other payment arrangements have been agreed to by Etools. Continued Customer access to the Services is not guaranteed should the Customer’s account be in arrears.
3.4 Pricing for Services are inclusive of any government taxes or charges unless otherwise noted. Prices do not include any associated third-party costs including, but not limited to, social media networks, advertising, sms charges, domain names etc.
3.5 The Customer is solely responsible for any third-party products and/or services required for them to access or use the Services.
3.6 You must pay all amounts invoiced in accordance with an approved Payment Option.
3.7 Etools does not allow for any credit terms for usage of any Services.
3.8 if your preferred Payment Option is offline credit card, you authorise Etools to debit your credit card for all charges due and payable by you on the date that they are due.
3.9 Most Services are available on monthly/quarterly/annual periods beginning on the Commencement Date. To cater for February and Leap Years, if your Commencement Date falls after the 28th of any month, the due date for payment of any invoices defaults to the first day of the following month.
3.10 Invoices are issued via email and sent via an approved Notification method to you 30 days prior to the due date for payment of the Service.
3.11 No refunds will be given for unused portions of payments made in advance (including payment of yearly contracts). Annual Agreement terms which have been automatically rolled-over in accordance with clause 3.1 will only be refundable if the Customer provides Notification of their intention to terminate the Services prior to the expiry of the current Term.
Should the Customer dispute the tendered invoice it must provide written notification of the Dispute to Etools prior to the due date listed on that invoice.
The Customer shall pay all undisputed fees to Etools by the due date of the invoice(s). Under no circumstances shall a dispute over any fees detailed in an invoice give the right for the Customer to withhold pay of the undisputed amounts listed on that invoice.
If the Customer does Notify Etools of any disputed fees on an invoice and then proceeds to make a part payment of the fees on that invoice, this constitutes acceptance of all fees on that invoice.
Etools shall, at it’s sole discretion, resolve not to process any Notifications if the Customer has any outstanding Fees, until such time as the undisputed outstanding Fees have been paid.
The Customer acknowledges that omissions may occur and Etools has the right to invoice any omitted works on a subsequent invoice.
4. Customer Warranties and Indemnities
4.1 You warrant that:
if you are not the Customer, you have the power and authority to enter into this Agreement on behalf of the Customer and will indemnify Etools for any breach of this Agreement by you and/or the Customer;
at the time of entering into this Agreement you are not relying on any representation made by us which has not been stated expressly in this Agreement, or on any descriptions or specifications contained in any other document, including any catalogues or publicity material which we have produced;
you will conduct such tests and computer virus scanning, as may be necessary to ensure that data uploaded by you onto, or downloaded by you from, the Services does not contain any computer virus or any other form of Malware and will not in any way, corrupt the data or systems of any person, or interfere with the Services;
you will keep secure any passwords and/or any other credentials used to access the Services. The Customer must ensure their password(s) is only provided to third-parties who they have authorised to access the Services. Etools takes no responsibility for any damage or loss resulting from un-authorised access to the Services where access is gained with a valid username and password. Etools will rarely request to be notified of the Customers password(s);
you will follow best practices in securing your passwords and other access details including; increasing password complexity and changing passwords on a regular basis;
you hold and will continue to hold any applicable rights in the Customer Data and that you are licensed and will continue to be licensed to use the Customer Data;
you grant to Etools a license to use and reproduce all Customer Data in order to fulfill its obligations under this Agreement.
4.2 You are solely responsible for dealing with persons who access the Customer Data and must not refer complaints or inquiries in relation to such Customer Data to Etools.
4.3 You indemnify Etools against all costs (including solicitor’s fees whether incurred by or awarded against Etools), expenses, loss or liability that we may suffer (directly or indirectly) resulting from:
your breach of these Terms and Conditions;
your use or misuse of the Services;
the use or misuse of the Services by any person using your Account or username/password combination(s);
publication of defamatory, offensive or otherwise unlawful Material on any website/server resulting from your use of the Services.
This Indemnity includes, without limitation, any claims made by any third parties (including subscribers of the Customer) resulting from your use of the Services. Such claims include, but are not limited to, false advertising, libel/slander, liability claims for products or services provided by the Customer, claims for patent, copyright, Intellectual Property or trademark infringement, claims due to disruption or malfunction of services, or for any content published by the Customer using the Services.
4.4 If your use of the Services involves storage, processing or transmission of, or access to any credit cardholder data, you warrant that the tools, programs, procedures, processes and technologies you use comply with the Payment Card Industry Data Security Standard ("PCI Standard"). A summary of these PCI Standard requirements is available at www.webprophets.net.au/hosting/pci_ssc_quick_guide.pdf. You indemnify Etools for any and all losses, damages, costs, claims and expenses which Etools may incur due to any breach of this warranty. If you breach this warranty, Etools may suspend, terminate or otherwise restrict access to the Services immediately upon Notification to you and without prejudice to any other rights Etools may have under this Agreement or at law.
4.5 The Customer shall pay any and all costs required to reinstate and/or repair the Services if the Services are interrupted or adversely affected by the Customer, the Customer’s Personnel, any client of the Customer or any other third party who has accessed the Services using the Customer’s passwords and/or other login credentials.
4.6 You are responsible for any misuse of the Services, regardless of whether the misuse was committed by the Customer, Customer’s Personnel, subscriber of the Customer, a friend, family member, guest or member of the public with access to your Services. You are responsible for any such misuse regardless of whether it was with or without your consent. Therefore, you must take steps to ensure that others do not gain either authorised or unauthorised access to your Services.
4.7 In using the Services provided the Customer must abide by all applicable Local, State (Victoria), Federal and International laws, treaties and regulations.
4.8 The Customer may not resell Services or assign any rights and/or obligations under this Agreement to any third party without Etools prior written consent.
5. Etools Warranties and Liabilities
5.1 We accept liability for the supply of the Services but only to the extent provided in this clause 5.
5.2 We do not warrant that:
the Services provided under this Agreement will be uninterrupted or error free;
the Services will meet your requirements, other than as expressly set out in this Agreement; or
the Services will be free from external intruders (commonly referred to as hackers), viruses, spam, worms, Trojan, Malware or Denial of Service attacks.
5.3 Where the Customer is a Consumer (as this term is defined by the Trade Practices Act) and they have informed themselves as per Clause 4.1, we accept liability where: the Services are not supplied with due care and skill; any material supplied in connection with the Services is not reasonably fit for the purpose for which it was supplied; and we are otherwise required to do so by the Trade Practices Act.
5.4 Our liability is limited, at our sole discretion, to the resupply of the Services; or payment of the cost of having the Services supplied again.
5.5 Except as expressly provided to the contrary in this Agreement, we exclude all liability for all direct, indirect and consequential loss or damage of any kind, loss or corruption of data, loss of revenue, loss of profits, failure to realise expected profits or savings and any other commercial or economic loss of any kind, in contract, tort (including negligence), under any statute or otherwise arising from, or relating in any way to this Agreement and/or its subject matter.
5.6 Other than liability accepted by us in clause 5.3, our total liability for loss or damage of any kind, however caused, in contract, tort (including negligence), under any statute or otherwise arising from or relating in any way to this Agreement is limited in aggregate for any and all claims to the monthly cost paid of the Services. If the Payment Terms are not monthly, the monthly cost shall be derived from a calculation based on their existing Payment term (ie annual accounts shall be divided by 12).
5.7 Etools, its directors, agents and/or employees will not be liable in any way for any form of loss or damage of any nature whatsoever claimed by the Customer or any person related to or dealing with the Customer out of, in connection with, or reasonably incidental to the provision of the Services by Etools to the Customer.
5.8 In the event of a major or total systems failure resulting in the disruption of Services, Etools will endeavour to repair and reinstate the Services as in the shortest possible timeframe. This restoration time is highly dependant on the nature and severity of the issue.
6. Suspension and Termination of Service
6.1 We may from time to time without further notice, suspend the Services or disconnect or deny your access to the Services if in our opinion your use of the Services breaches any clause in this Agreement and that breach interferes with the operation of our network or any other users. The Service will remain unavailable until the breach is remedied by the Customer.
Notwithstanding any suspension of any Services under this clause, you shall remain liable for any and all charges due throughout the period of this suspension, including, if applicable, any amounts charged by Etools to assist in the remedy.
6.2 If your account has been suspended or terminated due to your breach of this Agreement, reactivation of your account will be completely at our discretion. If we agree to reactivate your account, we will require payment in full of all outstanding amounts before reactivating your account.
6.3 Etools may without notice to you, remove, amend or alter your data upon being made aware of:
any claim or allegation; or
any court order, judgment, determination or other finding of a court or other competent body, that the data is illegal, defamatory, offensive or in breach of a third party's rights.
6.4 We may Terminate our Agreement with you and cease providing Services for any reason, by providing 30 days written Notification to you.
6.5 If your Services are Suspended or Terminated, you must pay all outstanding charges immediately. Etools reserves the right to decide when it deletes any or all Customer Data from any storage media once the Services have been Suspended or Terminated.
6.6 You may Terminate your Services with Etools on 30 days written Notification to Etools. If your account is in arrears Etools may decline to provide access to your Customer Data until all outstanding monies have been paid. Etools reserves the right to charge additional fees for this service.
6.7 Etools is under no obligation to provide you with a copy of the Customer Data if your Services have been Suspended or Terminated. If we provide you with a copy of Customer Data, we are entitled to charge a fee for this service.
6.8 Etools reserves the right to Suspend, Terminate and/or deny access to your Services if any invoice remains unpaid for 30 or more days past the due date specified on the invoice.
6.9 Etools reserves the right to take action, including legal or Suspension of, or Termination of a Service, against a Customer who interferes with the rights of another user online, or attempts to interfere with the smooth running of the internet or Etools network or Services. We reserve the right to discontinue, without refund or Notification, any account or Service where usage of the account or Service is deemed to be an abuse, and we will charge the Customer for costs incurred by any such abuse.
Should the Services be Suspended and/or Terminated and the outstanding monies are not paid within ninety(90) of the due date listed on an invoice, then the Customer’s debt will be referred to a Debt Recovery Agency and the debt will be listed with any applicable Credit Reference Agencies. Any additional Fees incurred by Etools in this process shall be payable by the Customer.
7. Dispute resolution
7.1 Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitrators Australia. During any such arbitration, both parties may be legally represented.
Prior to referring a matter to arbitration, the parties will:
Formally refer the dispute to their respective account managers for consideration;
If the respective account managers are unable to resolve the dispute after 5 Business Days (or such other period as is agreed between the parties) from the date of referral, refer the dispute to the respective chief executive officers of each party (or such person as he/she may nominate); and
In good faith explore the prospect of mediation
7.2 Court proceedings shall not commence unless the dispute cannot be resolved by the means detailed in this Agreement.
8.1 Any and all Promotions are offered subject to their individual Terms and Conditions and may be withdrawn or altered at Etools discretion.
8.2 In the event of any inconsistency between this Agreement and any Terms and Conditions for an individual Promotion, the Terms and Conditions of that Promotion shall take precedence of the conflicting clause of this Agreement.
Last modified 1 March 2014.