Terms of Use

Updated: 3 March 2014

Through Taguchi we provide authorised users with a variety of online functions and resources to collect visitor e-mail addresses and to create, launch, and manage online e-mail broadcasts campaigns and other online services. You acknowledge that this service must not be used for the sending of unsolicited e-mail (often referred to as spam).

Operative provisions

The following are the terms and conditions for use of our website and they will apply to you unless you have a direct contractual relationship with us which expressly states that these terms and conditions do not apply to you. By using our website, you accept these terms and conditions contained in this agreement. We may vary these terms and conditions at any time.

Software & related matters

  1. Subject to the terms and conditions of any specific agreement that you have signed with us (if applicable) and clauses 6 and 7, we grant to you a limited, non-exclusive, non-transferrable licence to access and use the Software for the sole purpose of implementing and supporting your digital marketing activities including email, SMS and other related services and functionality available via the system . You may only grant sublicences to your clients to use the Software if it is expressly set out that you may do so in a schedule to a specific agreement you have signed with us. If such a schedule does so provide, then the conditions upon which you may grant sublicences shall be governed by the provisions of that specific agreement.
  2. We warrant to you that we have the authority to grant this licence pursuant to this agreement.
  3. If you signed a specific agreement with us that states that a Trial Period is applicable then subject to clause 7 you shall only be entitled to access and use of the Software for 30 days which period of time shall commence on the day we send you an email confirming that you have access to the Software. At the end of the Trial Period if you have not agreed to enter into a contract with us to use the Software then your access to and use of the Software will automatically end and the provisions of clause 7.6 and 7.7 shall thereafter apply.
  4. If you have signed a specific agreement with us then you shall pay us the fees and charges (if any) as stipulated in your agreement with us. This clause does not apply to you if you are subject to the terms of a sublicence made between you and an authorised third party.
  5. We are not required to provide Updates or New Releases or Customisation pursuant to this agreement. However, Updates, New Releases and/or Customisation may be provided by us from time to time in our absolute discretion. If we do provide you with any Updates or New Releases or Customisation then they will form part of the Software and be subject to the terms and conditions of this agreement as varied.
  6. Except as expressly permitted by sections 47B(3), 47C, 47D, 47E or 47F of the Copyright Act 1968 (Cth), and any specific agreement you have signed with us, you must not and you must ensure that your officers, employees, agents and contractors do not:
    1. decompile, delete, reverse engineer, modify, copy, reproduce, disassemble, adapt, translate, or create any derivative works of the Software, or any Intellectual Property Rights, products, or services obtained from us in respect of the Software; or
    2. disseminate, distribute, transmit, display, perform, publish, directly or indirectly sell, transfer, offer for sale, licence, assign, rent, timeshare or sublicense any part of the Software or any copies of the Software.
  7. You are responsible for acquiring and installing any telephone, internet, electronic, email facilities and any other hardware and software systems that we consider necessary for you to access and use the Software.
  8. You must keep all Confidential Information confidential.
  9. You must use your best endeavours to ensure that the Software is protected at all times from unauthorised access or use and from physical misuse, damage or destruction by any person.
  10. Each officer or employee that you nominate for the purposes of this agreement shall be given administrator level access to and use of the Software by us (such access will be initiated via an email which contains a link to enable the person to create their own password and then gain access to the Software), and we may at any time revoke an individual’s access (whether at administrator level or otherwise) if we believe that:
    1. the user has ceased to be your officer or employee;
    2. the security of that user’s password has, or may have been, compromised; or
    3. that you (or the officer or employee in question) have failed to adopt responsible security practices in respect of the Software or otherwise failed to comply with the Australian Privacy Principles.
  11. Administrator level access shall enable the user to grant other officers and employees of yours access to the Software. The granting of such access by a user with administrator level access may at the discretion of the relevant user involve the grating of administrator level access or some lesser form of access to the Software. Our ability to revoke the access of individuals under clause 3.10 applies equally to the other officers and employees of yours who may be granted access to the Software pursuant to this clause 3.11.
  12. You must immediately inform us if you suspect that the security of a user’s password has, or may have been, compromised, or if you suspect that there has been unauthorised access to and/or use of the Software, including any misuse, interference or loss of, or unauthorised access, modification or disclosure of Personal Information held on the Software.
  13. You must not, and must ensure that your officers and employees do not, disclose their passwords to any person other than you (including by training and regularly reminding permitted users within your organisation not to make such disclosures) who does not have a need to know such information.
  14. You remain exclusively responsible for all acts and omissions of all officers and employees of yours who use the Software whether through the lawful or unlawful use of any user’s password or any other means of access.
  15. If you access or use the Software from a country other than Australia:
    1. we make no representation that the Software and such access or use will comply with the laws (including intellectual property laws) of any such country; and
    2. you do so at your own risk and it is your responsibility to ensure compliance with the laws of any such country.
  16. You agree that you will provide notice to individuals in accordance with Australian Privacy Principle 5 to inform them that their personal information may be disclosed to us.
  17. You warrant that you will only use the Software to send electronic direct marketing communications to recipients that have agreed to receive such communications.
  18. We have the right at any time to require you to submit your email distribution lists to us for approval prior to broadcast (or further broadcast, where previous broadcasts have already been made to the recipients listed in any such list) of emails to the recipients listed in any such list, for the purpose of allowing us to satisfy ourselves that the recipients have opted-in to the receipt of such emails.
  19. Where we notify you of a requirement under clause 3.18 to submit such a list to us for approval, you may not broadcast emails to that list until you have submitted the list and we have approved it.
  20. For the avoidance of doubt, clauses 3.18 and 3.19 operate for our benefit and protection only, create no enforceable rights in your favour and impose no obligation on us to check or approve such lists (which we may choose to do or not to do in our absolute and unfettered discretion). It remains at all times your sole responsibility to ensure that the Software is not used for any unlawful purpose, including without limitation, any use which may breach the Spam Act 2003 (Cth), the Privacy Laws, the CAN-SPAM Act (USA) or any laws in any jurisdiction having similar effect.
  21. ill promptly advise you of any requests for access to or correction of Personal Information, or any complaints in relation to the handling of Personal Information, which we receive in relation to Personal Information that forms part of your data. You agree to give us all reasonable assistance we require to respond to any access to or correction requests that are made to us.
  22. Where we receive a complaint from a recipient of an email broadcast by you to the effect that that recipient had not opted-in to the receipt of such emails, we may require you to submit proof to our satisfaction that such recipient had opted-in to such receipt and you agree to give us all reasonable assistance we require to enable us to deal with the complaint.
  23. We shall have the right when notifying you of such a requirement to suspend your access to and use of the Software with immediate effect until such time as such proof is submitted and we have determined that we are satisfied with it.
  24. You shall not be entitled to any refund of the Annual License Fee or other fixed charges (however described) in respect of the period of any suspension of access pursuant to clause 3.20 (even where proof is submitted and we are satisfied with it).

Data

  1. You warrant that any data or other information (including Personal Information) that we collect from you will be accurate, up-to-date, complete and relevant for the purposes for which it will be used and disclosed. You further warrant that this data will not include any:
    • Government Related Identifiers; or
    • Sensitive Information, unless you have required consent for the purposes of the Privacy Laws to use and/or disclose that Sensitive Information
  2. We shall not use any data or other information (including Personal Information) that we obtain from you for any other purpose other than a purpose directly related to us discharging our obligations to you under this agreement, save where otherwise required or authorised by law.
  3. We will not transfer or disclose your data (including Personal Information) to any third parties unless we are directed to do so by you in writing. If you direct us to transfer or otherwise disclose Personal Information to a third party you warrant that you have obtained the appropriate consents or that we are otherwise authorised to disclose that Personal Information to the third party and you will indemnify us for any liability or other costs, penalty payments or expenses arising from or in connection with that disclosure of Personal Information to that third party.
  4. We shall take reasonable steps to protect the data you send us (including Personal Information), including by ensuring that the data is processed securely through measures such as passwords, firewalls, encryption of data in transit, SFTP transfers and regular software updates as required.
  5. You acknowledge and agree that your data (including Personal Information) shall be processed and stored on our servers located in the United States, Australia and other locations from time to time as we deem appropriate.
  6. We reserve the right to alter our security measures and our processing/storage locations at our discretion, as we deem appropriate for our commercial requirements.
  7. We shall not (to the maximum extent permitted by law) be liable to you for any loss or damage you suffer or incur in relation to the misuse, interference or loss of, or unauthorised access to, unauthorised modification or unauthorised disclosure of your data (including Personal Information).
  8. Category 3 Data may upon request by you be provided by us to you during the Term by specific agreement for such fees as may be agreed by the parties. Any request for Category 3 Data shall define precisely the scope of the data sought. We retain the right to decline to agree to any request to provide Category 3 Data at our absolute and unfettered discretion.

Privacy

Each party agrees to:

Bandwidth limit & image hosting

  1. Subject to clause 4.2 we shall at our cost provide you with image hosting for your email campaigns. This will be limited to 5 megabytes per message sent.
  2. You shall pay us on demand a fee of AUD$0.001 per megabyte over the 5 megabyte limit referred to in clause 4.1. This clause does not apply to you if you are subject to the terms of a sublicence made between you and an authorised third party.

Linked web sites

  1. Our web site may contain Linked Web Sites. Such links are provided for your convenience and we do not give any warranties or representations that such links will remain current or be maintained.
  2. You will not hold us liable or in any way responsible for any loss or damage that you suffer or incur as a result of visiting or otherwise using a Linked Web Site.
  3. The existence of a Linked Web Site is not be construed by you as an endorsement, approval or recommendation by us of the owners or operators of such web sites, or of any information or material of any nature that is contained or otherwise accessible on such web sites. You agree that you access all Linked Web Sites entirely at your own risk.

Intellectual Property Rights

  1. You acknowledge and agree that:
    1. as between the parties, and without regard to the ownership rights of third parties, our right, title, and interest in and to the Software, trade marks and any other Intellectual Property Rights that comprise the Software and the branding associated with the Software (including any goodwill or other benefits accruing from your use of the Software, trade marks and other Intellectual Property Rights), shall inure to our benefit;
    2. we own the Software, trade marks and other Intellectual Property Rights that comprise the Software and the branding associated with the Software; and
  2. You must not take any action, or cause any third party to take any action, challenging, contesting or in any way impairing the rights, title, interest and ownership rights set out in clause 6.1.
  3. You must ensure that all copyright notices and other indications of ownership that appear in relation to the Software are not deleted or obscured by you or any officer, employee, agent or contractor of yours.
  4. If you incorporate any trade marks, logos or other Intellectual Property rights that you own or which you are otherwise entitled to use and enjoy then as between you and us, you shall own all such trade marks, logos or other Intellectual Property rights.

Termination

  1. Clauses 7.1 to 7.4 apply if:
    1. a party commits a breach of this agreement (except a breach of one or more of clauses 9.1.1 to 9.1.14); and
    2. the party not in breach proposes to terminate this agreement.
  2. The party not in breach must:
    1. give to the party in breach written notice that the party not in breach proposes to terminate this agreement because of the breach; and
    2. notify the party in breach of what the party not in breach requires to be done to remedy the breach; and
    3. allow the party in breach 30 business days to remedy the breach.
  3. If the breach is remedied in accordance with clauses 7.2.2 and 7.2.3, the party not in breach must not terminate the agreement because of that breach.
  4. The obligation to give a notice pursuant to clause 7.2.2 applies to any breach irrespective of whether it is capable of being rectified or corrected within the period of 30 business days referred to therein.
  5. Either party may terminate this agreement at any time by written notice to the other if either party commits an Insolvency Event.
  6. Upon the expiration or termination of this agreement:
    1. the licence created pursuant to this agreement will cease and you must cease, and must ensure that each of your officers, employees, agents and contractors ceases, to access and use the Software and any material and Intellectual Property Rights relating to the Software;
    2. you must stop using the Software and return to us all our Confidential Information and your obligations pursuant to clauses 3.8; 6.1 to 6.3 inclusive; 10.1 and 11.1 and 11.2 continue to bind you;
    3. the provisions of clauses 8.1 to 8.5 inclusive and clause 14 continue to bind you;
    4. accrued rights or remedies of either party are not affected;
    5. You may after termination request the return of all Category 1 Data held by us to you in the form provided by you (or in an equivalent form requested by you). We retain the right to decline to agree to any such request in our absolute and unfettered discretion. If we do agree to such a request, the return of such Category 1 Data shall be within a timeframe and in a form that we in our absolute and unfettered discretion consider appropriate. We shall not return such data (in any form) where we form the reasonable belief that such data was not yours when provided by you or was otherwise obtained by you unlawfully;
    6. you may retain all Category 2 Data in its extracted form that was extracted by you during the Term, however, you shall have no right to re-extract such data or to extract further Category 2 Data;
    7. you may retain all Category 3 Data in its extracted form that was provided to you during the Term, however, you shall have no right to have such data re-provided to you or to have further Category 3 Data provided to you;
    8. you acknowledge that we may be required to retain your confidential information or data under applicable laws or pursuant to the regulatory requirements of a governmental agency. We may retain one copy of your confidential information and data and one copy of any analysis, memoranda, data or other document derived from such information for the sole purpose of retaining a definitive record of the information actually provided and so long as such information remains confidential and remains restricted by the terms of this document notwithstanding the termination or expiration of this agreement; and
    9. we may delete any of your stored or archived data within 30 days of such expiration or termination.
  7. Despite clauses 7.6.6 and 7.6.7, you may after termination request Category 2 Data or Category 3 Data to which you do not have any right and we may agree to provide it for such fees as may be agreed by the parties. We retain the right to decline to agree to any such request in our absolute and unfettered discretion.
  8. The provisions of clauses 7.1 to 7.6 are in addition to any other rights and remedies that may be exercised by or available to the parties, except that the provisions of clauses 7.6.6, 7.6.7 and 7.7 shall solely determine the rights of the parties in relation to the subject matters of those clauses.
  9. In all cases of termination of this agreement (other than cases where termination is lawfully effected by you because of a breach of this agreement by us is not remedied in accordance with clause 7.2.2 and 7.2.3), there shall be no refund of the Annual License Fee or other fixed charges (however described) in respect of the balance of the term.
  10. When, as a result of Force Majeure, any party is prevented in whole or in part from carrying out its obligations under this agreement, it must give prompt notice of this to the other party specifying the obligations it cannot perform and fully describing the event of Force Majeure, and that party has no liability to the other party in connection with such non-compliance. Subject to clause 7.13, following this notice and for as long as the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure are suspended.
  11. An event of Force Majeure must be remedied to the extent reasonably practicable and performance of the obligations must be resumed as soon as reasonably possible. No party is required, against its will, to settle any labour dispute or to test the validity or refrain from testing the validity of any law, order, rule or regulation.
  12. The party which is prevented in whole or in part from performing its duties or carrying out its obligations under this agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of that Force Majeure.
  13. If the delay due to Force Majeure exceeds 40 continuous business days, either party may terminate this agreement immediately on providing notice to the other party.

Limitation of liability and set-off

  1. As an Application Service Provider, we provide the Software “as is”. Accordingly, we do not warrant that:
    1. the Software will operate uninterrupted, or can be accessed and used by you or your officers, employees, agents and contractors at all times without interruption;
    2. the Software will be free from defects or errors;
    3. the Software will be, or is, compatible with any software, hardware or service utilised by you, or your business.
  2. All express and implied warranties and conditions that in any way relate to the Software and the provision of any services provided by us pursuant to this agreement are to the maximum extent permitted by law expressly excluded.
  3. If we are liable for a failure to comply with a guarantee contained in Division 1 of Part 3-2 of the Australian Consumer Law or any law having similar effect then our liability for the failure will be limited to one of the following as determined by us:
    1. in the case of the goods: the replacement of the goods or the supply of equivalent goods; the repair of the goods; the payment of the cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired.
    2. in the case of any services: the supplying of the services again; or the payment of the cost of having the services supplied again.
  4. You acknowledge and agree that to the full extent permitted by law:
    1. we exclude all liability for indirect or consequential loss or damage (including but not limited to, lost revenue, business, profit, goodwill or data) suffered or otherwise incurred by you in any way relating to this agreement, any operation of the Software (including its defective operation), regardless of the basis of such liability and even if advised of the likelihood of such loss or damage; and
    2. we limit our aggregate liability to you arising out of or relating to this agreement, to the amount you paid for the Software and if you have not paid for the Software then our aggregate liability is limited to $100.00.
  5. You must indemnify and defend us and our officers and employees and hold us and our officers and employees harmless (collectively the Indemnified) from any loss, cost, damage and expense of whatsoever nature and any penalties or compensation or other amounts comprised in any determinations or orders made under the Privacy Laws or the Spam Act or equivalent laws (including legal costs on a full indemnity basis and whether incurred by or awarded against an Indemnified) suffered or incurred by any of the Indemnified arising from or in connection with:
    1. a breach by you of this agreement;
    2. the negligent, unlawful, or wilfully wrong, act or omission of you or your officers, employees, agents and contractors in connection with this agreement;
    3. any claim made or threatened by a third party arising out of or in connection with any negligent, unlawful, or wilfully wrong, act or omission of you or your employees, agents and contractors;
    4. any loss, damage or injury to property (including your property) or persons caused or contributed to by your use (including lawful use) of the Software including any Linked Web Sites.
  6. You may not deduct or set-off any money due to you by us (including for any breach of these terms or of any specific agreement you have signed with us) from any moneys due to us by you.

Further conditions to be observed by you

  1. You agree that:
    1. you will not use the Software for any unlawful purpose (whether you are aware that such purpose is unlawful or not);
    2. you will comply with the laws of Australia and the United States of America, regardless of where you operate from in the world, in relation to your access or use of the Software and also, if applicable, with the laws of the country in which you operate from or from which you access or otherwise utilise the Software in the event that such place is not in Australia or the United States of America. Without limiting your obligations you must comply with the Spam Act 2003 (Cth); the Privacy Laws; and the CAN-SPAM ACT (USA) and laws having similar effect;
    3. you will not use the Software to send, upload, promote or otherwise distribute (whether directly or indirectly) anything that is or might reasonably be considered to be offensive;
    4. you will not use the Software (whether alone or in conjunction with other software or hardware) to send; upload, promote or otherwise distribute (whether directly or indirectly):
      1. pornography;
      2. anything that is or is likely to be classified under Australia’s National Classification Code as RC; Category 2 restricted; Category 1 restricted; and/or X18+;
      3. illegal drugs or similar substances;
      4. explosives or similar substances;
    5. you will not use the Software to engage in any fraudulent, false, or misleading or deceptive conduct;
    6. you will not use the Software to infringe any third party’s Intellectual Property Rights;
    7. you will not use the Software to send or upload any malicious code, data or set of instructions that intentionally or unintentionally causes loss or damage including but not limited to viruses, Trojan horses; worms; or time bombs;
    8. you will comply with all rules and management systems that form part of the Software, including the subscriber bounce and invalid status rules and management;
    9. you will ensure that all e-mails sent from Taguchi contain a single click unsubscribe link as available from the Taguchi service;
    10. all emails will contain non-internet contact information of the sender, such as your company’s postal address and or phone number;
    11. you will only import, access or otherwise use only permission-based lists and will not use purchase based lists;
    12. you will be responsible for monitoring, correcting, processing unsubscribe requests within 5 business days and updating the email addresses to which messages are sent using your Taguchi account;
    13. emails sent by you from Taguchi may generate abuse complaints from recipients. You are responsible for ensuring that your email marketing activities do not generate a number of abuse complaints in excess of acceptable industry norms. We in our sole discretion, shall determine whether your level of abuse complaints is within acceptable industry norms;
    14. you will comply with clause 3.17; and
    15. you will, if required pursuant to clause 3.19 to submit proof to our satisfaction that an email recipient had opted-in to receipt of emails broadcast by you, submit such satisfactory proof within a reasonable period after being notified of our requirement.
  2. If you breach any one or more of clauses 9.1.1 to 9.1.14 inclusive then we shall be entitled to immediately terminate this agreement whereupon it shall be at an end and the provisions of clauses 7.6 and 7.9 shall apply.
  3. Where we reasonably suspect that you have breached clauses 9.1.1 to 9.1.7 inclusive or clause 9.1.10, we may suspend your access to and use of the Software with immediate effect until such time as we either determine that you have committed no such breach (in which case we shall lift the suspension as soon as is reasonably practicable) or we determine in our reasonable opinion that you have committed such a breach (in which case we shall be entitled to terminate the agreement under clause 9.2 and the provisions of clause 9.2 shall apply). You shall not be entitled to any refund of any Annual License Fee or other fixed charges (however described) in respect of the period of any suspension of access pursuant to this clause 9.3 (regardless of whether the suspension is ultimately lifted or not).
  4. While we will endeavour to make any determination under clause 9.3 as to whether you have committed a breach referred to in that clause as soon as is reasonably practicable, we shall be under no obligation to make such a determination within any particular period of time.
  5. You indemnify us as a continuing indemnity and hold us harmless against all loss, damage, cost or expense of whatsoever nature and any penalties or compensation or other amounts comprised in any determinations or orders made under the Privacy Laws or the Spam Act 2003 (Cth) or equivalent laws (including all indirect or consequential loss or loss of profits and including all legal fees on a full indemnity basis) suffered or incurred by us as a result of a breach by you of any of clauses 9.1.1 to 9.1.14 inclusive or as a result of any act or omission by your officers, employees, agents or clients which would, if it had been your act or omission, have constituted a breach by you of any of clauses 9.1.1 to 9.1.14 inclusive .
  6. Your obligations under clause 9.5 are in addition to, and in no way limit, your obligations under clauses 8.5 and 10.1.

Blacklisting

  1. If you or anyone of your officers or employees causes or contributes to our IP address being listed on an internet blacklist (for example, SORBS) then you will indemnify us and hold us harmless against all loss, damage, cost or expense of whatsoever nature (including all indirect or consequential loss or loss of profits and including all legal fees on a full indemnity basis) suffered or incurred by us as a result of or relating to such listing, including without limitation any fees and charges we reasonably suffer or incur in having the IP address removed from each blacklist.
  2. Your obligations under clause 10.1 are in addition to, and in no way limit, your obligations under clauses 8.5 and 9.5.

GST

  1. If GST is or will be imposed on a supply made under or in connection with this agreement, the supplier may, to the extent that the consideration otherwise provided for that supply under this agreement is not expressly stated to already include an amount in respect of GST on the supply:
    1. increase the consideration otherwise provided for that supply under this agreement by the amount of that GST; or
    2. otherwise recover from the recipient (in cash) the amount of that GST within 7 days of the day that the supplier gives written notice to the recipient.
  2. The recovery by the supplier of any amount in respect of GST pursuant to this agreement on a supply is subject to the issuing of the relevant tax invoice or adjustment note to the recipient.

Some rules of construction

The following rules apply to the construction of this agreement unless the context requires otherwise:

  1. references to the singular shall include the plural and vice versa and references to any gender shall include the other genders;
  2. references to a person includes a natural person, firm, body corporate, trust, partnership, body politic, unincorporated association or authority;
  3. an obligation of 2 or more persons binds them jointly and severally;
  4. a reference to a clause, schedule, or annexure is a reference to a clause of or schedule or annexure to, this agreement;
  5. reference to a month means a calendar month and reference to a year means a calendar year; and
  6. if a word or phrase is defined its other grammatical forms have a corresponding meaning.

Severance

  1. If the whole or any part of a provision of this agreement is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of this agreement has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This clause is of no effect if the severance alters the basic nature of this agreement.

Governing law

  1. This document is governed by and construed in accordance with the laws for the time being in force in the State of Victoria.
  2. The parties irrevocably submit to the exclusive jurisdiction of the Courts of the State of Victoria and of the Commonwealth of Australia including any courts having appellate jurisdiction.

Defined terms: