MANAGE PROTECT STANDARD TERMS & CONDITIONS
Manage Protect, and Customer (as identified on the Services Application Form) agree to the following Manage Protect, Standard Terms and Conditions, as may be supplemented by any additional terms attached hereto (the “Terms and Conditions”). The Services Application Form (“Order Form”) executed by Customer and these Terms and Conditions are collectively referred to as the “Agreement”.
1. DEFINITIONS. For purposes of the Agreement, the following definitions shall apply: (a) “Malware” means (i) virus, which is a piece of program code, often including a self-replicating element, usually disguised as something else that causes an unexpected and undesirable event and which is designed so that it may infect other computer systems; (ii) spyware, which is a piece of program code that is placed in computer systems without the owner’s consent or by misguiding the owner to grant the consent; or (iii) phishing attack, which is a message or other internet content that attempts to fraudulently acquire sensitive information, such as passwords and credit card details, by masquerading as a trustworthy entity’s apparently official electronic communication. (b) “Open Proxy” means an HTTP server that allows third-party relay or proxy of web traffic. (c) “Email” means any SMTP message sent or received via the Services. (d) “Bulk Email” means a group of more than one hundred (100) Emails with substantially similar content. (e) “Junk Email” means unsolicited commercial Email. (f) “Open Relay” means an SMTP Email server that allows third-party relay of Email messages.
2. DESCRIPTION OF SERVICES. Manage Protect will provide Customer the services designated in the Order Form (the “Services”). Manage Protect may from time to time change, update or enhance the Services from time to time as it deems necessary. For Services designated as in Beta stage, Manage Protect reserves the right to materially change the functionality of the Services without notice to Customer.
3. CUSTOMER OBLIGATIONS. Customer will provide Manage Protect with all technical data and all other relevant information and assistance Manage Protect reasonably requires to supply the Services. To the best of Customer’s knowledge, all information supplied to Manage Protect will be complete, accurate and provided in good faith.
Customer acknowledges and agrees that Manage Protect will not provide the Services to Customer unless Customer is in compliance with Manage Protect’s acceptable usage policies and technical prerequisites (“AUP”) that are applicable to the Services at http://www.manageprotect.com.au/terms/aup/index.htm
Customer agrees not to: (i) use the Services for any purpose that is in violation of any applicable law or is otherwise an infringement on the rights of any person or entity, or violates the AUP, or use the Services in the event Customer provides similar services; (ii) modify, decompile, reverse engineer, disassemble or reproduce any components of the Services (iii) interfere with or disrupt the Services or any networks connected to Services; (iv) conduct fraudulent activities, including the initiation or propagation of any Malware; (v) take an unreasonable or disproportionately large load (traffic bandwidth or number of messages per user exceeding 150% of the average for all Manage Protect customers using similar services) on Manage Protect infrastructure providing the Services, unless the parties agree a bandwidth overage charge rate as set forth in a Service Application Form; (vi) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity; (vii) allow the use of its systems to be used as Open Proxy, resell the Services, or otherwise permit the use of the Services by any third party users that are not bound by these Terms and Conditions (each of (i) to (vii), a “Prohibited Use”).
At Manage Protect’s reasonable request, Customer shall provide to Manage Protect comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Services (collectively, the “Feedback”). The Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, user-desired features and the results of any and all benchmark or similar testing conducted within the term of this Agreement. In addition, Customer shall report to Manage Protect any unusual, unplanned or out-of-the-ordinary performance of the Services observed by any of Customer’s personnel. Customer agrees that Manage Protect has the unrestricted right to use the Feedback at its sole discretion, without notice to, payment to or consent from Customer, provided that Manage Protect’s use of the Feedback complies with the nondisclosure obligations set forth in Section 11 below. Customer agrees not to disclose Feedback to any third party without the express written consent of Manage Protect.
4. SYSTEM ADMINISTRATOR. The customer will provide Manage Protect with technical contact information regarding Customer’s system administrator (“System Administrator”) who Customer hereby authorises and directs to act on its behalf and provide the information required by Manage Protect to configure and manage the Services. Manage Protect will provide Customer with a confidential access code to the administration tool. Customer agrees that only the System Administrator will have access to the access code and the access code shall remain the Confidential Information of Manage Protect.
5. TERM. The initial term of this Agreement is specified in the Order Form (the “Initial Term”). This Agreement shall renew for successive terms of equal length as the Initial Term (each a “Renewal Term”) unless either party provides written notice of its intent not to renew this Agreement at least five (5) days prior to the end of the then current term. During any Renewal Term, the parties shall be bound by the provisions of these Terms and Conditions in the form published on Manage Protect’s website at www.manageprotect.com.au/terms/ as of the effective date of the Renewal Term. Customer acknowledges and agrees that billing for the Services shall continue through the effective date of the termination, subject to the notice requirement and other applicable terms herein.
6. FEES; INVOICE; AUDIT. Customer will pay the Fees set forth on the Order Form, which are subject to change based on Customer’s request for an increased number of users served or other options ordered by Customer, or at the discretion of Manage Protect at the beginning of any Renewal Term. Customer is responsible for the payment of any and all taxes related to use of the Services (excluding taxes based on Manage Protect’s income). If the Customer cancels the Services during the Initial Term or any Renewal Term they will not be entitled to a refund. Customer shall pay all invoiced Fees within fifteen (15) days of the invoice date. Any payment not received when due shall accrue interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower. Manage Protect will have the right at its expense and with reasonable prior notice to Customer to audit Customer’s compliance with the terms of this Agreement, including but not limited to the number of authorised users. If any audit reveals that Customer has underpaid the Fees due to Manage Protect hereunder, Customer will promptly remit such underpaid amounts plus interest thereon at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower.
7. SUSPENSION OF SERVICE. Manage Protect may suspend the Services as follows: a) immediately if Manage Protect deems it necessary to terminate any Prohibited Use either directed at or originating from Customer’s domains or servers; or b) upon written notice to Customer if Customer breaches this Agreement and fails to cure such breach to Manage Protect’s satisfaction within five (5) days after Manage Protect’s written notice specifying the breach. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including but not limited to Customer’s obligation to pay Fees.
8. TERMINATION. Manage Protect may terminate this Agreement for cause immediately upon email notice to Customer: (a) in the event that Manage Protect does not receive Customer’s payment of any non-disputed Fees within thirty (30) days of the invoice date, (b) Customer fails to remedy any situation giving rise to a Suspension of Service; (c) Customer commits a material breach of this Agreement; or (d) Manage Protect makes a reasonable determination that Customer’s traffic volume is disproportionately large. In the event of (d) above, Manage Protect may request that Customer enter negotiations regarding a Fee adjustment as a prerequisite to continuing Services. Within thirty (30) calendar days after termination or expiration of this Agreement, the Customer will: (a) return to Manage Protect all materials provided to the Customer by Manage Protect under this Agreement; and (b) certify in writing through an authorised representative of Customer that such return has been effected.
9. CUSTOMER SERVICE. The Order Form specifies the party that will provide Customer technical support, which may be Manage Protect or a Manage Protect partner (“Channel Partner”), in which case Customer agrees that it will seek technical support exclusively from Channel Partner. Terms of customer support provided by Manage Protect are available on Manage Protect’s web site (http://www.manageprotect.com.au/support/). Manage Protect may from time to time perform maintenance on or otherwise temporarily suspend the Services. Manage Protect will use commercially reasonable efforts to minimise any disruption of Services.
10. SECURITY. Although information transmitted to Manage Protect is stored in secure operating environments, Customer understands that no data transmission over the Internet can be guaranteed to be 100% secure. Manage Protect is not responsible for any interception or interruption of any communications through the Internet. Customer is responsible for maintaining the security of its networks, servers, applications and access codes.
11. CONFIDENTIALITY; PRIVACY. Each party agrees and undertakes that during the term of this Agreement and for three (3) years thereafter, it will keep confidential and will not use for its own purposes without the prior written consent of the disclosing party any information of a confidential nature which may become known to the receiving party from the disclosing party (“Confidential Information”) unless: (i) such disclosure is otherwise permitted or contemplated by this Agreement; (ii) the information is publicly known or already known to the receiving party at the time of disclosure; (iii) the information subsequently comes lawfully into the possession of the receiving party from a third party; or (iv) disclosure is required by court order or otherwise by law. Customer acknowledges that Manage Protect’s Intellectual Property (defined below) constitutes Confidential Information of Manage Protect.
12. INTELLECTUAL PROPERTY. The Services (including any associated software, hardware, websites, passwords, components and tools) are and will remain the sole property of Manage Protect or its licensors, respectively. Manage Protect or its licensors, respectively, will retain sole ownership of all right, title and interest in and to the Services, as well as any derivative works thereof, including but not limited to copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights (“Intellectual Property”). Customer agrees, on behalf of itself, its employees and agents, that it will not remove or alter any trademarks, or other proprietary notices, legends, symbols, or labels appearing in the Service or other materials delivered by Manage Protect.
13. THIRD PARTIES. The Services may contain products of independent third parties, such as Malware definitions or URL filters and algorithms. Manage Protect makes no warranty as to the accuracy of any such third party information. Certain third party licensors are third party beneficiaries of the following Sections of the Agreement: 3-5, 7,8 and 10-12.
14. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY. ANY USE BY YOU OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED “AS IS,” AND MANAGE PROTECT AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, MANAGE PROTECT’S OR ITS LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE FEES PAID BY CUSTOMER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL MANAGE PROTECT OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF CUSTOMERS, LOSS OF, OR LOSS OF USE OF, ANY SOFTWARE, DATA, WEB TRAFFIC, OR EMAILS, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER WEB TRAFFIC OR EMAIL, DELAYS OR FAILURE TO DETECT UNDESIRABLE WEB TRAFFIC OR MALWARE, OR WRONGFULLY IDENTIFYING WEB TRAFFIC OR EMAIL FOR FILTERING OR AS CONTAINING MALWARE) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF MANAGE PROTECT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. NEITHER MXLOGIC NOR ITS LICENSORS WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED.
Without limiting the foregoing, Customer acknowledges that, as Malware is regularly created and distributed, the Services are intended to detect only specific known Malware and some unknown Malware behavior patterns. Manage Protect does not warrant that the Services will detect all Malware. In addition, false Malware detections might occur and, if in any doubt, Customer should contact Manage Protect to assess if a positive detection is correct. Further, Customer acknowledges that the Services may not be able to scan certain web traffic, Email or attachments, which are under the direct control of the web site owner or the email sender (such as encrypted components).
15. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold Manage Protect harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) any breach by Customer of this Agreement; (ii) any information or content passing through the Services and/or Manage Protect’s network to or from Customer; (iii) any taxes arising from the Services whether now in effect or imposed in the future (excluding taxes based on Manage Protect’s income); and (iv) claims by third-parties arising from Customer’s use of the Services (excluding claims that the Services, as provided by Manage Protect, infringe third party intellectual property rights).
Manage Protect agrees to indemnify, defend, and hold Customer harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys’ fees) arising out of third party claims that Customer’s authorised use of the Services, as provided by Manage Protect, infringes the intellectual property rights of such third party. In the event that a claim of infringement is made or threatened, Manage Protect may: (i) modify the Services to render them non-infringing; (ii) secure for Customer the right to use the Services; or (iii) terminate this Agreement. The foregoing states the entire liability of Manage Protect with respect to infringement.
16. WAIVER. The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
17. JURISDICTION/GOVERNING LAW; COSTS; LIMITATION PERIOD. The laws of the State of Victoria, Australia shall govern this Agreement and any interpretations or constructions thereof. Further, the place of performance and transaction of business shall be deemed to be in the state of Victoria, Australia in the event of litigation, the exclusive venue and place of jurisdiction shall be the state courts of Victoria, Australia or federal courts of Australia, as applicable. The parties hereby submit themselves to the personal jurisdiction and venue of such courts.
In any dispute regarding the enforcement of this Agreement, the prevailing party shall be entitled to recover all costs and fees, including attorneys’ fees, incurred by such prevailing party in enforcing the terms of this Agreement.
Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of this Agreement must be filed within one (1) year after such claim or cause of action arises.
18. NOTICE. Any notice required in this Agreement shall be delivered by facsimile or registered mail sent to the addresses set forth on the service application Form. Notices shall be deemed effective upon receipt.
19. BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Customer may not assign this Agreement without the prior written permission of Manage Protect.
20. SURVIVAL. Rights and obligations which by their nature should survive will survive the termination or expiration of this Agreement, including but not limited to Sections 1, 6, 8, 11-19 and 20.
Manage Protect Standard Terms and Conditions – MPmail Supplement The following terms and conditions relate to the Manage Protect’s MPmail Services and supplement and are incorporated into the Standard Terms and Conditions agreed to by Customer:
1. DEFINITIONS. Defined terms shall have the meanings set forth in the Standard Terms and Conditions.
2. ADDITIONAL CUSTOMER OBLIGATIONS. Customer’s Email systems are directly and permanently connected to the Internet with a fixed IP address. Customer agrees not to: (i) transmit through the Services any Junk Email, Viruses or Bulk Email; (ii) allow its systems to serve as an Open Relay; (iii) transmit obscene or pornographic material; (iv) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity (each of which shall be included in the definition of “Prohibited Use”).
Manage Protect Standard Terms and Conditions – MParchive Supplement
The following terms and conditions relate to the Manage Protect’s MParchive service and are incorporated into the Standard Terms and Conditions agreed to by Customer:
1. Definitions. Defined terms shall have the meanings set forth in the Standard Terms and Conditions unless specifically defined herein. Journaled Data means email messages after the start date of the Services that are automatically generated by Customer’s email server(s) to a journal pickup mailbox for archiving. Historical Data means email messages created prior to the start date of the Services.
2. Unlimited Journaled Data. MParchive allows unlimited Journaled Data and “unlimited” refers to the quantity (not lifespan) of data, subject to the following terms and conditions:
o Customer shall not insert Historical Data into the journal pickup mailbox to avoid paying historical data hosting fees or for any other reasons. Historical data may not be archived as Journaled Data and is not unlimited. MParchive will only archive messages journaled from the start date of the Services unless they have been specifically imported as “legacy data” as agreed by prior written agreement with Manage Protect Pty Ltd. o Customer shall not cause messages to be inserted into the journal pickup mailbox that were not generated by Customer’s server journaling function. o Customer may not use a disproportionate amount of per user storage, defined as exceeding 150% of the average usage of Manage Protect’s MParchive customers. Manage Protect reserves the right to renegotiate the terms of the Agreement in the event that a violation of this provision occurs o Each Individual message in either Journaled Data or Historical Data shall not exceed 25MB in size.
3. Historical Data Import. Manage Protect will only import the amount of Historical Data quoted and ordered by Customer. In the event the amount of data has increased, a new quote and Agreement will be required. Customer is responsible for providing all Historical Data to Manage Protect in PST or EML format. Corrupt or unreadable files will not be imported. All quotes and billings are based on aggregate file sizes.
4. End of Life. In the event Customer chooses not to renew this Agreement, its options are: A) Customer may request a download of all or part of the current data stored within the customer account, which will be presented to the customer as individual message files, encrypted and stored on a portable storage device. The fee charged for this service will be calculated at the current ‘MParchive legacy upload’ rate which is listed on the standard ‘Manage Protect Services Application form’. Such export of the archived messages must be completed by the expiration of the Agreement. Or B) the data may be permanently removed from the archive at no cost to the customer.
5. Upon expiration Manage Protect shall have the right to permanently remove all Customer messages from the archive without any liability to Customer.
6. Anti-Spam and Anti-Virus. Customer is required to use an effective anti-spam/anti-virus solution at its own cost (excepted as provided by Manage Protect under an express Agreement to include such a solution) in order to reduce the occurrence of long-term online storage of unsolicited or harmful messages. Such a solution must effectively prevent delivery of spam and virus infected messages to the journal mailbox.
Manage Protect Unsolicited Bulk Email Policy
Manage Protect (MP) prohibits the use of the Manage Protect® MPmail to accept, transmit or distribute unsolicited bulk email. In addition, email sent, or caused to be sent, to or through the Manage Protect MPmail that makes use of or contains invalid or forged headers, invalid or non-existent domain names or other means of deceptive addressing will be deemed to be counterfeit. Any attempt to send or cause such counterfeit email to be sent to or through the Manage Protect MPmail is unauthorised. Similarly, email that is relayed from any third party’s mail servers without the permission of that third party, or which employs similar techniques to hide or obscure the source of the email, is also unauthorised. Manage Protect does not authorise anyone to send e-mail or cause e-mail to be sent through the Manage Protect MPmail that violates Manage Protect’s Terms and Conditions.
Unauthorised use of the Manage Protect MPmail in connection with the transmission of unsolicited bulk email, including the transmission of counterfeit email will result in immediate suspension of Manage Protect services and may result in civil and criminal penalties against the sender, including those provided by the Computer Fraud and Abuse Act (18 U.S.C. 1030 et seq.), CAN-SPAM Act of 2003 and the Australian Spam Act 2003.
Policy for Outbound Email Delivery
The following standards apply to the delivery of outbound email through the Manage Protect (MP) MPmail and at Manage Protect’s sole discretion we may enforce the following policies:
• MP’s servers will not accept connections from unsecured systems. These include open relays, open proxies, open routers, or any other system that has been determined to be available for unauthorised relay.
• MP will not deliver email that contains a hex-encoded Universal Resource Locator (URL). (Ex: http://%6d%6e%3f/)
• MP’s mail servers will reject messages with more than 500 recipients.
• MP’s mail servers will reject messages with attachments that exceed 100MB.
• MP will reject connections from servers that consistently generate a higher than 10% invalid recipient rate (i.e. over 10% of a sender’s mailing list is destined for users that do not exist).
• MP will reject connections from senders who are unable to accept at least 90% of the bounce-return messages (mailer-daemon failure/error messages) destined for their systems.
• Complaints and/or blacklists from sources deemed reasonable credible by MP will be used as a basis for refusing connections from any mail server.
• MP will make commercially reasonable attempts to provide communications to the technical contact of record who may be in violation of MP’s policies.