Overview

  • The use of the Send&Mine online services and software provided on http://www.mailandmine.com and https://secure.andmine.com/mail/ ("Send&Mine Services") are subject to the following:
    • (a) these Terms and Conditions;
    • (b) our Privacy Policy; and
    • (c) our Anti-Spam Policy,
      (collectively, "the Agreement").
  • The Agreement constitutes a legal agreement between you (also referred to in the Agreement as "the Client") and AndMine Pty Ltd (ACN 097 327 967), an Australian company ("AndMine", "we", or "us"). You are only permitted to use the Send&Mine Services if you complete the registration process and confirm that you have read and agree to the Agreement and accept the same by clicking the button "Charge and Process" on the Send&Mine EDM Payment webpage.
  • If an individual purports to have or has the legal authority to accept the Agreement on behalf of a company or another individual, you, the Client, accept the Agreement on behalf of that company or individual, otherwise you, the Client, accept the Agreement as an individual. Any individual that accepts or purports to accept the Agreement on behalf of a company or another individual hereby warrants and confirms that such agreement is being made with the full authority of that company or individual.
  • You may not assign any of your rights under the Agreement unless you have sought AndMine's permission and AndMine has agreed to the same in writing (including terms). We may assign all rights under the Agreement to any other individual, company or entity at our discretion.
  • The Client is responsible for ensuring that the Agreement is complied with. By accepting the Agreement, the Client warrants and agrees:
    • (a) to use all of the Send&Mine Services and the materials and content available on the Send&Mine website in accordance with the Agreement;
    • (b) not to use Send&Mine Services for illegal spamming in breach of our Anti-Spam Policy ;
    • (c) to only send bulk email to people in accordance with our Anti-Spam Policy;
    • (d) not to send emails created using the Send&Mine Services from a domain name that is not owned by the Client;
    • (e) not to use any of AndMine's servers to host images for the Client's website; and
    • (f) to pay all amounts owed to AndMine in accordance with Clause 5 of this Agreement.
  • TAKE NOTICE THAT CLAUSE 16 OF THE AGREEMENT MAY ALLOW ANDMINE TO CLAIM LIQUIDATED DAMAGES FROM YOU IF YOU BREACH SPECIFIC CLAUSES OF THE AGREEMENT AND YOU WILL BE REQUIRED TO PAY SUCH LIQUIDATED DAMAGES FOR THOSE BREACHES.
  • AndMine and Send&Mine
  • "Send&Mine" is a trade name of AndMine. AndMine owns and operates the website URL's: http://www.mailandmine.com and https://secure.andmine.com/mail/ and (herein referred as the "Website").
  • Terms of Use
  • 1. Purpose
    • 1.1 The purpose of this section "Terms of Use" is to set out the terms and conditions under which you are permitted to use the Send&Mine Services.
    • 1.2 Any email, including but not limited to any email newsletters or bulk email, sent using the Send&Mine Services are referred to herein as an "email."
  • 2. Changes and Updates
    • 2.1 AndMine reserves the right to modify or amend any of the terms of the Agreement.
    • 2.2 We will notify you of any modifications, amendments or "updates" to the Agreement through the Website, by email to the last known email address you provided to us or by any other means of contact you provided to us.
    • 2.3 Upon notifying you of any updates to the Agreement in accordance with Clause 2.2, the updated Agreement will be effective immediately with respect to your new or continued use of the Send&Mine Services.
    • 2.4 AndMine reserves the right to modify or upgrade any part of the Send&Mine Services and you will be notified about such changes or modifications on (but not limited to) the Website or by email.
  • 3. Agreement Term
    • 3.1 The "Term" is the period of time during which you are entitled to use the Send&Mine Services to create and send emails and other digital content permitted by this Agreement.
    • 3.2 The Term will expire at the relevant times set out in Clause 6 or as otherwise provided for in this Agreement.
  • 4. Eligibility and User Accounts
    • 4.1 You are required to be at least eighteen (18) years of age to complete the registration form on the Send&Mine EDM Payment webpage and by doing so, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Send&Mine Services and software does not violate any applicable law or regulation. Your uploads may be deleted and your subscription may be terminated without warning, if we have reason to believe you are under eighteen (18) years of age.
    • 4.2 You must complete the registration form on the Send&Mine EDM Payment webpage in order to use the Send&Mine Services. You must provide true, accurate, current, and complete information about yourself or the company or individual on whose behalf you are completing the form, as requested on the Send&Mine EDM Payment webpage.
    • 4.3 As part of the registration process, you will identify an email address, username and password for your Send&Mine account. You are responsible for maintaining the security of your account and credentials including your account name, password, subscribers lists and files and of all other uses of your account and the Send&Mine Services. You must immediately inform us if you notice any unauthorised use of your Send&Mine account.
    • 4.4 AndMine reserves the right to refuse registration of, or cancel user accounts it deems inappropriate.
  • 5. Payment and Plans
    • 5.1 Monthly Plan
      • (a) The pricing for Send&Mine Monthly Plans are posted on the Website on the Send&Mine EDM Payment webpage and is subject to change.
      • (b) Payments for Send&Mine Monthly Plans are due for the full month in advance and on the same date of the month as your first monthly payment when you completed your registration for the Send&Mine Services and clicked the button "Charge and Process" on the Send&Mine EDM Payment webpage.
      • (c) Payments must be made by way of credit card as accepted by AndMine or as otherwise agreed between you and an authorised representative of AndMine.
      • (d) You may increase your Email Database Size and Monthly Plan at any time through your Account. You will be charged the difference between the initial Monthly Plan and the new Monthly Plan at the time you increase your Email Database Size and then Monthly in accordance with Clauses 5.1(a), (b) and (c) for the new Monthly Plan.
      • (e) You may decrease your Email Database Size and Monthly Plan at any time through your Account. You will be charged for the new Monthly Plan beginning at the start of the next month in accordance with Clauses 5.1(a), (b) and (c).
      • (f) Send&Mine provides you with the option to set up recurring payments. Recurring payment is activated by default at the time you set up your account for the Send&Mine Services. It is your sole responsibility to deactivate the recurring payment option by logging into your account after the registration process has been completed.
    • 5.2 Pay As You Go Plans
      • (a) The pricing for Send&Mine Pay As You Go Plans are posted on the Website on the Send&Mine EDM Payment webpage and is subject to change.
      • (b) Payments for Send&Mine Pay As You Go Plans are due at the time of purchase.
      • (c) Payments must be made by way of credit card as accepted by AndMine or as otherwise agreed between you and an authorised representative of AndMine.
    • 5.3 You agree to at all times provide AndMine with valid credit card information and warrant and confirm that your are authorised to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.
    • 5.4 You authorise AndMine to deduct payments in accordance with this Clause 5.
    • 5.5 AndMine reserves the right to disable your account until all payments have been made or any outstanding payments have cleared.
    • 5.6 AndMine reserves the right to change the pricing of the Send&Mine Services and the Plans referred to Clauses 5.1 and 5.2 at any time by updating the pricing section on the Website or the software. These pricing changes will be effective from the next billing cycle (time of invoice being generated). The only exception to this case will be if you have written permission from AndMine regarding a long-term contract, that states the pricing will remain constant during the period of the terms of that contract.
  • 6. The Term and Termination
    • 6.1 Either party may terminate the Term of this Agreement at any time for any reason by providing Notice in writing to the other party.
    • 6.2 If AndMine terminates the Agreement with you, we will refund the unused portion of your Monthly Plan Payment or Pay As You Go Plan Payment on a pro rata basis provided that you have not committed a material breach of the Agreement.
    • 6.3 A material breach of the Agreement includes, but is not limited to, any breach of Clauses 4, 5, 7, 8, 9, 10 and 11.
    • 6.4 The Client acknowledges and agrees that if the Client commits a material breach of the Agreement, which AndMine considers is not capable of remedy, AndMine may elect to terminate the Agreement immediately without notice and without any refund to the Client.
    • 6.5 The Client acknowledges and agrees that if:
      • (a) the Client commits a material breach of the Agreement which is capable of remedy AndMine may give the Client an opportunity to remedy the breach by providing the Client with written notice. Further, if the Client fails to remedy the breach within 3 business days of receiving a notice from AndMine under this Clause 6.5, AndMine may elect to terminate the Agreement immediately without notice and without any refund to the Client; and
      • (b) AndMine decides not to provide the Client with a written notice under this Clause 6.5, AndMine may elect to terminate the Agreement immediately without notice and without any refund to the Client.
    • 6.6 If your service or account is terminated for a material breach of the Agreement, no refunds will be available to the Client from AndMine at any point of time under any circumstances.
    • 6.7 If you do not log in to your account for 12 or more months, we may deem your account "inactive" and permanently delete your account and all data associated with it.
    • 6.8 If the Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available, the parties are immediately released from their obligations under the Agreement except those obligations listed in Clauses 10, 11, 12, 13, 14, 15, 16, 18, 19 and 20 and any other obligations that, by their nature, survive termination.
    • 6.9 Once the Agreement has been terminated, we may remove your account including all of your details, emails or any email newsletters, files and any related data from the Send&Mine software and database.
  • 7. Sending Emails
    • 7.1 You warrant and agree that you will not under any circumstances when using the Send&Mine Services:
      • (a) incorporate into your email any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your email or that you are not otherwise permitted to use;
      • (b) post on the Website or send any emails created or sent using the Send&Mine Services or the Website that contain any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information or information that is likely to mislead recipients;
      • (c) publish any material that contains sexually related or pornographic text, photographs or other similar content, or content that is defamatory, obscene, indecent, threatening, offensive, abusive or hateful or that harasses any anybody or promotes anything illegal;
      • (d) include in any emails 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 intellectual property, privacy and publicity rights;
      • (e) set up multiple Send&Mine accounts for any individual, company or entity or in order to send substantially similar content unless it is a company that is are part of a franchise;
      • (f) import or incorporate into any lists, emails or uploads to our servers any of the following information: passwords, security credentials, or sensitive personal information of any kind;
      • (g) send transactional emails through Send&Mine unless you have AndMine written consent;
      • (h) mail to distribution lists, newsgroups, or spam email addresses; and
      • (i) use AndMine's or Send&Mine's bandwidth for any other purpose than using the Send&Mine Services in accordance with the Agreement.
    • 7.2 If you are found to be using the Send&Mine Services in breach of Clause 7.1, the Agreement may be terminated by AndMine pursuant to Clauses 6.4 or 6.5 of the Agreement and you may be required to pay AndMine an amount for liquidated damages under Clause 16 of the Agreement.
    • 7.3 For every email message sent using Send&Mine, you acknowledge and agree that the Send&Mine software may automatically add some message, logo, graphic from AndMine (or Send&Mine) in the footer area for promotional and advertising purposes.
  • 8. Anti-Spam Policy
    • 'Spam' means Unsolicited Bulk Email which does not meet the following criteria:
    • An Email must:
      • (a) be sent with the recipient's consent;
      • (b) contain accurate information about the person or organisation that authorised the sending of the email; and
      • (c) contain a functional 'unsubscribe' facility to allow recipients to opt out of receiving email messages from the source or sender of the email.
    • For more information about the meaning of Spam, please visit the following links on the Australian Communications and Media Authority (ACMA) website:
      • (i) About Spam
      • (ii) Understanding Spam
    • 8.1 The Client agrees to act in accordance with the following laws when sending email using the Send&Mine Services:
      • (a) Spam Act 2003 (Cth); and
      • (b) The United States CAN-SPAM Act, a guide for which is contained on the following link on the US Bureau of Consumer Protection website.
    • 8.2 You must not send Spam emails when using the Send&Mine Services and you warrant and agree that you will not send Spam emails whenever you use the Send&Mine Services.
    • 8.3 To send email to any individual or company using Send&Mine, you must have clearly obtained permission from that individual or company, subject to Clause 8.3(d), within the last 12 months. Such permission may obtained by one of the following non-exhaustive methods:
      • (a) an email newsletter subscribe form on your website;
      • (b) an opt-in checkbox on a form. This checkbox must not be checked by default, the person completing the form must willingly select the checkbox to indicate they want to hear from you;
      • (c) if someone completes an offline form like a survey or enters a competition, you can only contact them if it was explained to them that you would be contacting them by email AND they ticked a box indicating they would like you to contact them.
      • (d) customers who have purchased from you within the last 2 years; or
      • (e) if someone gives you their business card and you have explicitly asked for permission to add them to your list, you can contact them.
    • 8.4 You must not send email to any individual or company in the following circumstances:
      • (a) you do not have explicit, provable permission to contact that individual or company in relation to the topic of the email you are sending;
      • (b) you bought, loaned, rented or in any way acquired the email address of that individual or company from a third party, no matter what that third party claims about quality or permission. You need to obtain permission yourself;
      • (c) you haven't contacted that individual or company via email in the last 2 years; or
      • (d) you scraped or copy and pasted the individual's or company's email address from the web.
    • 8.5 Every email you send using Send&Mine must include the following:
      • (a) a single-click "unsubscribe" link that instantly removes the subscriber or recipient from your email list. Each such link must remain operational for a period of thirty (30) days after the date on which you send the email. Once a subscriber or recipient unsubscribes, you can never email them again, unless they request such subscription or receipt of email from you;
      • (b) the name, physical address and phone number of you the sender. If you are sending an email for your client, you must include the name, physical address and phone number of the client instead; and
      • (c) a statement of the reason the recipient is receiving the message. For example, "You are receiving this message from us because you signed up to receive emails from www.user.com".
    • 8.6 If you are an individual or company that provides the following types of services, products or content, you must not use the Send&Mine Services or complete the registration form referred to in the Overview and Clause 4.2 of the Agreement, unless you seek or have already received AndMine's prior written consent:
      • Illegal goods or services
      • Escort and dating services
      • Pharmaceutical products
      • Work from home, Internet Lead-gen, Make money on online opportunities, etc.
      • Online trading, day trading tips, or stock market related content
      • Gambling services, products or gambling education
      • Multi-level marketing
      • Affiliate marketers
      • Credit repair, get-out-of-debt content
      • Mortgages and/or Loans
      • Nutritional Supplements, Herbal Supplements or Vitamin Supplements
      • Pornography, nudity or related content
      • Adult novelty items or references in content
      • List brokers or List rental services
      • Marketing or sending commercial email without proper permission
      • Illegal contests
      • Pyramid schemes
      • Chain letters
    • 8.7 If you are otherwise found to be using the Send&Mine service for spamming or distributing or hosting prohibited content in violation of this Clause 8 or otherwise in breach of this Clause 8, AndMine may elect to terminate the Agreement pursuant to Clauses 6.4 or 6.5 of the Agreement and you may be required to pay AndMine an amount for liquidated damages pursuant to Clause 16 of the Agreement.
  • 9. Sender Policy Framework and Permission
    • 'Sender Policy Framework ("SPF")' means a common email validation system, designed to prevent:
      • (a) Spam; and
      • (b) other email activity prohibited by AndMine, including the alteration or masking of a senders email address and/or other parts of the email header to appear as though the email originated from a different source,
      by verifying the IP address of a host sending email. In particular, SPF allows a the administrator of a domain (e.g. generic.com) to specify which hosts are permitted to send email from that domain by creating a "SPF record" (or TXT record) in the Domain Name System ("DNS"). Email transfer agents use the SPF record in a user's DNS to verify that email sent from the DNS is sent by a host, such as AndMine, that is authorised by the administrators of the DNS.
    • 9.1 If the Client owns a domain and intends to use that domain to send email using the Send&Mine Services, AndMine will send email on behalf of the Client through the Client's domain.
    • 9.2 Following the registration process, when the Client logs onto the Client's account, AndMine will ask the Client to update or authorise AndMine to update the Client's SPF record of the Client's DNS to allow AndMine to send email through the Client's domain.
    • 9.3 If the Client authorises AndMine to update the Client's SPF record to allow AndMine to send email through the Client's domain, the Client must provide AndMine with the username and password of the Client's domain to enable AndMine to update the SPF record for the Client.
    • 9.4 Subject to Clauses 9.1, 9.2 and 9.3, if any of the following occur:
      • (a) the Client sends or attempts to send email using the Send&Mine Services without updating the SPF record of the Client's DNS to allow AndMine to send email through the Client's domain;
      • (b) the Client's DNS does not contain an SPF record which allows AndMine to send email through the Client's domain; or
      • (c) the Client's DNS contains an SPF record allowing AndMine to send email through the Client's domain but the Client nevertheless breaches any part of Clause 8 of the Agreement by, inter alia, sending or attempting to send Spam using the Send&Mine Services,
      • AndMine may require the Client to update or obtain the appropriate SPF record or elect to terminate the Agreement pursuant to Clauses 6.4 and 6.5 of the Agreement.
    • 9.5 If the Client does not own a domain, AndMine may allow the Client to send email from Send&Mine's domain (andmine.com or mailandmine.com) by providing the Client with an email address using the Client's Send&Mine username, (e.g. user@andmine.com or user@mailandmine.com) when the client signs up to the Send&Mine Services.
    • 9.6 In any event, the Client's account with Send&Mine is subject to approval by AndMine. Until your account is approved by AndMine, any email you send using the Send&Mine Services may require approval by AndMine.
    • 9.7 Large email lists imported by the Client into the Send&Mine software may require verification by AndMine. The Client will be unable to send email using the Send&Mine Services until such verification is performed by AndMine.
    • 9.8 AndMine always monitors blacklists and Send&Mine accounts that abuse AndMine's Anti-Spam Policy [MS - link it to go to clause 8 herein] or Terms of Use. AndMine can determine if a Client is causing delivery problems for Send&Mine's servers or the Client's account is attracting complaints from third parties. If AndMine discovers that the Client's account is:
      • (a) breaching AndMine's Anti-Spam Policy [MS - link it to go to clause 8 herein] or Terms of Use;
      • (b) causing delivery problems for AndMine's and/or Send&Mine servers;
      • (c) attracting complaints from third parties at a rate greater than 1% of all recipients (that is 100 complaints for every 10,000 recipients); or
      • (d) generating a spam score (or "Default Score") of greater than 2.000 on Spam Assassin (http://spamassassin.apache.org) (see "current" tests at http://spamassassin.apache.org/tests.html),
      • AndMine may elect to terminate the Agreement pursuant to Clauses 6.4 or 6.5 of the Agreement and the Client may be required to pay AndMine liquidated damages in accordance with Clause 16 of the Agreement.
  • 10. Hacking Prohibited
    • 'Hacking' means unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.
    • 10.1 The Client warrants and agrees that the Client will not under any circumstances:
      • (a) violate or attempt to violate the security of the Website or the Send&Mine Services; or
      • (b) hack into the Website, AndMine's computer systems or the computer systems of other users of the Send&Mine Services.
    • 10.2 If the Client breaches Clause 10.1 of the Agreement, AndMine may elect to terminate the Agreement pursuant to Clauses 6.4 and 6.5 of the Agreement and the Client may be required to pay AndMine liquidated damages in accordance with Clause 16 of the Agreement.
  • 11. Intellectual Property
    • 'Intellectual Property Rights' means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names licenced to or owned by AndMine, know how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
    • 11.1 Nothing in the Agreement constitutes a transfer of any Intellectual Property Rights in the Send&Mine Services, the Website or any software developed, created and/or owned by AndMine.
    • 11.2 AndMine grants the Client a non-exclusive, world-wide, non-transferable licence to the Client to use the Send&Mine Services in the form provided by AndMine, subject to and in accordance with the Agreement and subject to the payment of any amounts payable by the Client to AndMine in accordance with Clause 5.
    • 11.3 The Client must not under any circumstances:
      • (a) use the Send&Mine Services or the Website for any purpose or in any manner other than as set out in the Agreement;
      • (b) use the Send&Mine Services or the Website in any way that could damage the reputation of AndMine or the goodwill or other rights associated with the Send&Mine Services or the Website;
      • (c) permit any third party to use your Send&Mine account;
      • (d) reproduce, make error corrections to or otherwise modify or adapt the Send&Mine Services or the Website or create any derivative works based upon them;
      • (e) attempt to or otherwise decipher, decompile, disassemble or otherwise reverse engineer the Send&Mine Services, the Website or any of the software comprising or in any way used or downloaded from the Website or permit any third party to do the same; or
      • (f) modify or remove any copyright or proprietary notices when using the Send&Mine Services or the Website.
    • 11.4 The Client must not directly or indirectly do anything that would or might invalidate or put in dispute AndMine's title in the Send&Mine Services or the Website or any of AndMine's registered or unregistered trade marks.
    • 11.5 The Client must comply with AndMine's reasonable usage guidelines and directions with respect to the Send&Mine Services and the Website and the Trade Marks as notified to the Client from time to time.
    • 11.6 If the Client breaches Clauses 11.3 and 11.4 of the Agreement, AndMine may elect to terminate the Agreement pursuant to Clauses 6.4 and 6.5 of the Agreement and the Client may be required to pay AndMine liquidated damages in accordance with Clause 16 of the Agreement.
  • 12. Warranties
    • 12.1 Use of the Send&Mine services and any reliance by you upon the Send&Mine Services, including any action taken by you because of such use or reliance, is at your sole risk.
    • 12.2 To the maximum extent permitted by law, AndMine (and its employees, directors, officers, agents and assigns) does not warrant that the Send&Mine Services will be uninterrupted, accurate or error free, nor does it make any warranty as to the results that may be obtained from use of the Send&Mine Services.
    • 12.3 The services are provided "as is" and to the extent permitted by law AndMine disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose and non-infringement of any law.
  • 13. AndMine's Limited Liability
    • 13.1 The Client acknowledges and agrees that to the maximum extent permitted by law:
      • (a) the Client assumes full responsibility and risk of any loss or damage resulting from the Client's use of the Website and the Send&Mine Services including any downloads from the Website;
      • (b) under no circumstances shall AndMine or any of its employees, directors, officers, agents and assigns be liable to the Client or any other individual or company for any loss, damage or costs (including, but not limited to direct, indirect, punitive, special, exemplary, consequential, reliance or incidental damages, loss of profits or revenue, business interruption, loss of data, or opportunity costs) or for any other claim by any individual or company;
      • (c) notwithstanding any other provisions of the Agreement to the contrary, AndMine's total liability to the Client in any event is limited to the amount, if any, actually paid by the Client for use of the Website and the Send&Mine Services for the one month period ending on the date a claim is made and the Client hereby releases and indemnifies AndMine and its employees, directors, officers, agents and assigns from all obligations, liabilities, claims, demands, suits, causes of action, proceedings, accounts, demands, interest, expenses and costs of whatsoever nature (including any loss and damage to the Client referred to in Clause 13.1(c) of the Agreement) in excess of this limitation;
      • (d) AndMine's liability to the Client at law will be reduced to the extent, if any, to which the Client caused or contributed to the loss or damage; and
      • (e) this Clause 13 applies whether a claim is made against AndMine by the Client in relation to the Send&Mine Services in contract, tort (including without limitation, negligence) or equity and even if AndMine (or its employees, directors, officers, agents and assigns) has been notified of the possibility of such loss or damage.
  • 14. General Indemnity
    • 14.1 The Client agrees to indemnify and hold AndMine and its employees, directors, officers, agents and assigns, harmless from any and all losses (including, but not limited to, legal costs) resulting from any claims not permitted under this Agreement due to a "Limitation of Liability" or other provision, that the Client asserts, or may assert, based on or relating to the Client's use, or the use by any individual or company using the Client's account and password, of the Website or the Send&Mine Services.
    • 14.2 The Client further agrees to indemnify and hold AndMine and its employees, directors, officers, agents and assigns, harmless from any and all losses resulting from claims of third parties, including, but not limited to, legal costs, that result in whole or in part from allegations of conduct by the Client that, if true, would constitute a violation by the Client, or any individual or company using the Client's account and password, of any of the terms of the Agreement.
  • 15. Digital Security Indemnity
    • 15.1 The Client acknowledges and agrees that:
      • (a) AndMine takes all precautions to prevent viruses, hacks, hack attempts or any other security threats or conditions which could damage or interfere with data, hardware or software on the Website servers, AndMine's servers or any software provided by AndMine for the Send&Mine Services;
      • (b) from time to time down-time on the Website servers, either scheduled or unscheduled, may occur. AndMine will endeavor to notify you of scheduled down-time and in any event work within reason to ensure the amount of down-time is limited;
      • (c) AndMine does not accept responsibility if any such viruses, hacks or hack attempts occur or down-time occurs; and
      • (d) you assume all risk of use of all programs, files and software associated with the Send&Mine Services.
    • 15.2 In any event, the Client agrees that it will release and indemnify AndMine and its employees, directors, officers, agents and assigns from all claims, demands, suits, causes of action, proceedings, accounts, demands, interest, expenses and costs of whatsoever nature (including any loss and damage to the Client referred to in Clause 13.1(c) of the Agreement), which the Client at any time in the future may have against AndMine, arising from the consequences of:
      • (a) any viruses, hacks or other security threats or conditions which may damage or interfere with data, hardware or software on the Website servers, AndMine's servers or software provided by AndMine for the Send&Mine Services; or
      • (b) down-time on the Website servers.
  • 16. Liquidated Damages are Payable to AndMine for specific breaches of the Agreement
    • 'Liquidated Damages' means a fixed sum that is payable to AndMine as a means of compensation following a breach of the Agreement by the Client which sum is reflective of the loss that would be suffered by AndMine as a result of the Client's breach.
    • 16.1 The Client acknowledges and agrees that the Client must pay AndMine liquidated damages, in lieu of any other damages that may be recoverable against the Client by AndMine under the Agreement or at law, in relation to any of the following breaches of the Agreement:
      • (a) any breaches of the Agreement that result in AndMine or Send&Mine being viewed as a source of Spam including, but not limited to:
        • (i) sending email using the Send&Mine Services that contain any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information or information that is likely to mislead recipients in breach of Clause 7.1(b) of the Agreement;
        • (ii) sending Spam emails when using the Send&Mine Services in breach of Clause 8.2 of the Agreement;
        • (iii) sending email to any individual or company using the Send&Mine Services without obtaining permission from that individual or company in breach of Clauses 8.3 and 8.4 of the Agreement;
        • (iv) sending email using the Send&Mine Services which contain or offer the types of services, products or content set out in Clause 8.6 of the Agreement; or
        • (v) causing delivery problems for AndMine's and/or Send&Mine servers by reason of the Client's breach of AndMine's Anti-Spam Policy [MS - link it to go to clause 8 herein] or Clauses 9.8(a) and 9.8(b) of the Agreement;
      • (b) any breaches of the Agreement that are in place to protect AndMine and Send&Mine from uses of the Send&Mine Services that are not permitted under Clauses 7.1(a), 7.1(b), 7.1(c), 7.4(d), 7.1(i), 9.8(c), 9.8(d), 10.1, 11.3(d), 11.3(e), 11.3(f) and 11.4 of the Agreement.
    • 16.2 The Client acknowledges and agrees that the Client must pay AndMine the following liquidated damages for the breaches of the Agreement referred to in Clause 15.1 of the Agreement as follows:
      • (a) in respect of Clause 15.1(a), the equivalent of 12 monthly payments under the Client's current Monthly Plan, but in any event not less that AU$1,000.00; and
      • (b) in respect of Clause 15.1(b), the equivalent of 9 monthly payments under the Client's current Monthly Plan, but in any event not less that AU$800.00.
  • 17. Notices
    • 17.1 Any notice by AndMine to you under this Agreement will be effective when sent to the last email or physical address you have provide to us or posted on our Website.
    • 17.2 Any notice to by you to AndMine under this Agreement us will be effective when it is sent to the email address, edm@andmine.com and copied to our General Counsel, Damien Simonetti (d.simonetti@andmine.com) or delivered to us by post at the following address: AndMine Pty Ltd, Level 1, 627 Chapel Street, South Yarra VIC 3141 Australia.
  • 18. Privacy Policy
    • You agree that we may access, collect, use and disclose your information as set forth in our Privacy Policy. The terms of the Privacy Policy are to be treated as if they were added to and part of this Agreement and shall be binding on all parties to the Agreement.
  • 19. International Users
    • The Send&Mine Services may be accessed anywhere in Australia and overseas. AndMine makes no representations that the Send&Mine Services comply with the laws (including intellectual property laws) of any country outside Australia. If you access the Send&Mine Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the Country or place where you access the Website or Send&Mine Services.
  • 20. Force Majeure
    • 20.1 AndMine will not be liable for a failure to comply with its obligations under the Agreement or otherwise be liable to the Client to the extent that the failure is caused by a Force Majeure Event (including strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond AndMine's reasonable control) as that term is defined by the Courts of Victoria.
    • 20.2 Without limiting any other right to terminate under the Agreement, if a Force Majeure Event affects AndMine's performance under the Agreement for more than thirty (30) consecutive days, AndMine may immediately terminate the Agreement by written notice.
    • 20.3 If the Agreement is terminated under Clause 20.2, no refunds will be available to the Client from AndMine at any point of time under any circumstances.
  • 21. General provisions
    • 21.1 Each party must at its own expense do everything reasonably necessary to give full effect to the Agreement and the events contemplated by it.
    • 21.2 The Client must not assign or otherwise deal in any other way with any of its rights under the Agreement without the prior written consent of AndMine (including terms).
    • 21.3 You acknowledge and agree that no agency, partnership, joint venture, or employment is created as a result of the Agreement, and you or any other company or individual do not have any authority of any kind to bind AndMine in any respect whatsoever.
    • 21.4 If a provision of the Agreement is invalid or unenforceable, it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
    • 21.5 The Agreement is the entire Agreement between the parties and supersedes all other representations, arrangements or agreements made prior to the Agreement. Other than as expressly set out in the Agreement, no party to the Agreement has relied on any representation made by or on behalf of the other.
    • 21.6 The Agreement may only be amended by AndMine in accordance with Clause 2.
    • 21.7 A provision of or a right under the Agreement may not be waived or varied except by agreement in writing signed by or on behalf of the Client and AndMine by authorised persons to be bound.
    • 21.8 The Agreement shall be considered as a contract made in the State of Victoria in the Commonwealth of Australia and is subject to the laws and exclusive jurisdiction of the State of Victoria in the Commonwealth of Australia to which all parties hereby submit.
    • 21.9 Unless the context requires otherwise:
      • (a) the term "includes" (or any similar term) means "includes without limitation";
      • (b) the singular includes the plural and vice versa; and
      • (c) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
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