Andzen is committed to helping reduce the problems of Unsolicited Commercial Email (UCE) or ‘Spam’.
The Andzen system allows only verified opt-in subscriptions, and ensures that all consumers can opt-out quickly, easily and permanently from any communication they receive, be it email or SMS.
Andzen is registered under the Data Protection Act to handle personal data, and we are proactive in ensuring that personal data is kept safe.
If you have received a communication from a Andzen member and are unsure of why you have received it please forward the email, or contents of the text message to: [email protected] and we will look into the matter and contact you to resolve the issue.
We take the privacy of client and end user data very seriously. The entire Andzen system is designed to provide all parties with complete control over their data.
We believe that your personal data is your own, and you should control it. Because of this Andzen do not rent, sell or otherwise disclose data to 3rd parties unless we are required to by law.
That’s the short version. Because our lawyers like to earn their fees, they insisted that we also have the long version below…
1. Contact details
The Sign-Up website (the “Site”) and the Sign-Up data processing services (together, the “Services”) are provided by Andzen Proprietary Limited, a company registered in Australia with ABN 45 155 884 996.
Registered Office: Andzen Proprietary Limited, Suite 3, 54 Vernon Tce, Teneriffe, Qld, 4005
Contact Address: Andzen, Suite 3, 54 Vernon Terrace, Qld, 4005 e-mail: [email protected]
2.1 We are registered under, and process personal data in accordance with, the Australia’s data protection laws.
3. Personal Information Collected
3.1 We will only collect personal information about you that you have given, either:
(a) when you register for the Services; or
(b) if you have previously registered your details with a company which has since joined the Sign-Up Services.
3.2 When you register to use the Services you will be asked to provide personal information such as your name, postal and e-mail addresses, contact telephone numbers, date of birth, gender and other lifestyle information.
4. Use of personal Information
4.1 We may use personal information for: administrative, operational and marketing purposes and to communicate with you about your use of the Services any changes to the Services. We will only pass on your information to other companies if it is necessary to perform the Services or with your prior consent. Those companies may contact you to inform you of their services and products. Any personal information that you choose to provide to us or to other companies using our Services will only be used in support of the intended purposes stated at the time at which it was collected and subject to any preferences indicated by you.
4.3 If this business is sold or integrated with another business, your details may be disclosed to our advisors and any prospective purchasers and their advisors and will be passed on to the new owners of the business.
4.4 We may be obliged to disclose your personal information if required to do so by law.
4.5 Email tracking – If you use our service to register to receive communications via email then messages you receive may be trackable at an individual level, allowing us to determine, for example, opens and link clicks. This information is generally used to help assess the effectiveness of communications so that we can improve them and may occasionally be used to send relevant further communications in response to your actions (e.g. clicking a particular link) or inactions (e.g. not opening an email). You can unsubscribe from email communications at any time using the unsubscription link contained in each message.
5. Other Information
5.1 We may also collect and disclose information to third parties in aggregate (so that no individual members are identified) for statistical analysis and strategic development purposes.
Information about the cookies we use is below. We currently operate an ‘implied consent’ policy, which means that we assume that you are happy with this usage. If you are not, you should either not use this site, delete the cookies after visiting our site or enable your browser’s anonymous usage settings.
6.2 Most browsers allow you to turn off the cookie function. If you want to know how to do this, please look at the help menu on your browser. However, if you turn off the cookie function your use of the Services may be impaired.
6.3 Cookies we use on our websites
When browsing our websites we use the following persistent cookies to measure site performance and for analytics purposes.
Google Analytics – we use this service to collect anonymous data to help us understand how our website is being used.
Google WebsiteOptimizer – we use this service to anonymously test the performance of different content variations on pages of our site.
Google Ad Services – we use this service to track conversions of our paid advertising to enquiries and to target display advertising to site visitors (re-targeting) when they visit other sites using Google’s Ad services. User data is anonymous.
Salesforce.com – we use this service to track the source of leads when you complete an enquiry form or open an account with us.
6.4 Cookies we use when you log in to our services
When you log in to an account on our servers
(including our blog) we store a number of session cookies to remember your login and allow us to let you securely access the account on your site. These cookies are strictly necessary for the operation of our services, which will not work correctly without them.
6.5 Social buttons
Many pages of our site contain social sharing buttons for services including Twitter, Facebook, Google+ and LinkedIn. These buttons enable users to share content. In order to implement them we have to load scripts from the relevant social networks, which are outside of our control. You should be aware that such services track your activity all over the internet, including on our site, so if you interact with them they will be recording and possibly using that information. Please check the websites of the relevant social networks for more information and details on how to opt-out.
6.6 Subscription Forms
When you use subscription forms provided by Andzen we use session cookies to allow you to safely and securely complete a form. These session cookies are necessary for the reliable operation of our forms and are anonymous.
7.1 We will only pass on information about you as an individual (as opposed to aggregate information) to third parties overseas to enable us to perform services requested by you.
7.2 Owing to the global nature of the Internet, the information you provide may be transferred in transit to countries outside the European Economic Area that do not have similar protections in place regarding your data and its use as set out in this policy. However, we do our best to ensure that your personal information is secure.
8.1 As required by under Australian data protection laws, we follow strict security procedures in the storage and disclosure of information which you have given to us, to prevent unauthorised access. We use industry standard technology to encrypt your personal information. However, the Internet is not a secure environment and we cannot guarantee the security of any information which you send to us.
9. Other websites
9.2 This site uses a tool that collects your requests for pages and passes elements of them to search engines to assist them in indexing this site. We control the configuration of the tool and are responsible for any information sent to the search engines.
10. Updating your details
10.1 If you wish to update any of your personal details at any time, for example if you change your e-mail address, or you do not wish to receive information about a particular product or service, or if you wish to close your membership account, please update your membership details as instructed on the Site and your details will be updated as soon as is reasonably practicable.
10.2 If you delete your account, other companies with which you have registered via the Services may continue to process your data but they should not contact you without your consent.
11. Access rights
11.1 You have a right to access the personal data that is held about you. To obtain a copy of the personal information we hold about you, please write to: Privacy Officer, Andzen Proprietary Limited, Suite 3, 54 Vernon Tce, Teneriffe, Qld, 4005, enclosing a cheque for £10 payable to Andzen Proprietary Limited to cover our administration costs.
When writing to us, please state your name, postal address and mobile phone number and provide brief details of the information that you require.
12. Contact us
If you would like to contact us with any queries or comments on our privacy practices, please write to the contact address above or send an e-mail to [email protected]
Terms of service
These terms relate to use of the Andzen web application and related services. For terms relating to general use of our website please click here.
We like to keep things straight forward, so before we get to the legal stuff our lawyers say we have to have, here’s a plain english breakdown of the key things you need to know when using Andzen:
- Your data remains yours at all times. We’ll never disclose your data to third parties unless required by law or requested by you.
- Unless otherwise arranged, we bill monthly based on the maximum number of active subscribers in your account during the previous month. Payments are collected by credit/debit card on the day of issue. Failure to pay on time will result in suspension of access until your invoice is paid.
- We provide free phone and email support during Australian working days, from 9am – 5.00pm.
- Managed services (such as alterations to or creation of email campaigns or use of the service on your behalf) are subject to additional charges which will be agreed with you before the work is undertaken.
- We take permission very seriously. Andzen may only be used for permission-based data, without exception. Use of a purchased list or addresses obtained without permission will result in immediate termination of your account, without refund. We check all data uploaded to Andzen.
- We will not tolerate the sending of Spam messages. Spam is best defined by the recipient. If your complaint rate is excessive (as determined solely by Andzen) or in any case if your spam complaint rate (readers hitting the ‘this is spam’ button with their ISP) exceeds 0.3% this is grounds for immediate termination without refund.
- If you wish to cancel your account you can do so at any time with 30 days notice. Cancellations can only be made by sending an email to [email protected] from the email address of the account administrator, for your security we will not accept verbal cancellation instructions. Cancellation will not be finalised until all outstanding invoices are paid. For annual contracts the full balance of the remaining contract period must be paid prior to cancellation.
The legal bit:
Andzen Proprietary Limited is registered in Australia with ABN 45 155 884 996 whose registered office is at Suite 3, 54 Vernon Tce, Teneriffe, Qld, 4005 (Andzen Pty Ltd).
Use of the Andzen system constitutes complete and unconditional acceptance of the terms below.
The Client’s attention is drawn in particular to clauses 3.4, 4, 6, 9 & 11.
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Conditions).
Agreement: the Client’s agreement to use the Services provided by Andzen Pty Ltd and to pay the Charges subject to these Conditions or as otherwise agreed in writing.
Charges: Andzen Pty Ltd’s charges for the Services as posted on Andzen Pty Ltd’s website from time to time or as agreed between the parties from time to time.
Client: the person, firm or company who purchases Services from Andzen Pty Ltd pursuant to these Conditions.
Data: means the personal data provided to Andzen Pty Ltd and updated from time to time by Client (which may include sensitive personal data).
Data Protection Legislation: all applicable data protection legislation and regulations.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Material: includes, in addition to a document in writing, the Data, databases, computer software (including the Software), designs, drawings, pictures or other images (whether still or moving), the Site, sounds or any other record of any information in any form.
Payment Day: means the day of the month upon which the Client enters into this Agreement and the same day each month for the duration of the Agreement.
Services: means the provision of the AndzenTM data storage services and Software, whereby (i) Andzen Pty Ltd provides the Services, by which persons can give (and withdraw) notice of their interest in a business’ products or services by mobile telephone or at the Andzen TM Site or another site and provide personal data, (ii) Andzen Pty Ltd stores the Data, (iii) Andzen Pty Ltd provides the Software to manipulate the data collected, (iv) Andzen Pty Ltd provides the facilities for the Client to send e-mails and SMS text messages to the email addresses or mobile telephone numbers listed in their Data and sub-sets of the Data identified using the Software, (v) Andzen Pty Ltd provides facilities for the Client to export the Data and such other services agreed between Andzen Pty Ltd and the Client from time to time or ancillary to the services detailed above.
Site: means Andzen Pty Ltd’s web site from which the Services can be accessed.
SMS Credit: means a virtual non-refundable credit which the Client may redeem with Andzen Pty Ltd on the day of purchase and the following 29 days in return for the sending by Andzen Pty Ltd of one SMS text message to the mobile telephone number provided by Client. The cost to Andzen Pty Ltd of obtaining SMS text messaging services may vary; after the expiry of the guaranteed value period of 30 days the number of SMS Credits required to be redeemed in return for the sending by Andzen Pty Ltd of one SMS text message may be varied at Andzen Pty Ltd’s discretion.
Software: means Andzen Pty Ltd’s data management and manipulation software which is made available by Andzen Pty Ltd for use to the Client over the internet as part of the Services.
Subscriber: means each person for whom Andzen Pty Ltd holds Data on for the Client.
Andzen Pty Ltd: means Andzen Proprietary Limited (ABN: 45 155 884 996, registered in Australia) whose registered office is 5th Floor, The Shipping Building,
Old Vinyl Factory, 252 – 254 Blyth Road, Hayes, UB3 1HA.
Trademark: means the “sign-up” unregistered trade mark and logo and any future registration of any similar mark or application for registration anywhere in the world.
1.2 Condition, schedule and paragraph headings shall not affect the interpretation of these conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.6 A reference to writing or written includes faxes and e-mail.
1.7 Where the words include(s), including or in particular are used in these terms and conditions, they are deemed to have the words without limitation following them and where the context permits, the words other and otherwise are illustrative and shall not limit the sense of the words preceding them.
1.8 Any obligation in this Agreement on a person not to do something includes an obligation not to agree, allow, permit or acquiesce in that thing being done.
1.9 References to conditions and schedules are to the conditions and schedules of this Agreement.
2. APPLICATION AND DURATION OF CONDITIONS
2.1 These Conditions shall apply to and be incorporated into the contract between us. As the application form is completed online by Client, Client will need to scroll through these Conditions online and will be asked to tick a box accepting these Conditions on the web page, this will constitute an acceptance by Client of these Conditions relating to the Services.
2.2 The Services supplied under this Agreement shall be provided by Andzen Pty Ltd to the Client from the date Client signs up to the Services online.
2.3 The Client may request that the Services be varied but any such variation shall be subject to Andzen Pty Ltd’s prior written consent and the written agreement of both parties, which shall set out any new, or variation of, the Charges.
2.4 Unless the parties have agreed an annual or quarterly contract for the supply of the Services, the Services supplied under this Agreement shall continue to be supplied for successive one (1) month periods unless and until this Agreement is terminated by one of the parties giving to the other not less than one months’ notice, unless this Agreement is terminated in accordance with condition 10.
3. SUPPLY OF SERVICES
3.1 Subject to earlier termination in accordance with these Conditions, Andzen Pty Ltd shall provide the Services to the Client for the duration of this Agreement and will use its reasonable endeavours to provide the Services in a professional manner.
3.2 When Client requests the Services of Andzen Pty Ltd, and clicks online to agree to these Conditions, the Client shall be allocated a free demo account and will be sent a link by email to validate their details and provide access to this account. The Client can then upload Data to Andzen Pty Ltd. The first 1,000 emails sent by Client will be free of charge and any subsequent use shall incur the Charges set out on the Site from time to time or as otherwise agreed between the parties.
3.3 Andzen Pty Ltd shall store Client’s Data securely and Client should note that: Andzen Pty Ltd and does not buy, sell or rent any of Client’s Data nor will Andzen Pty Ltd disclose any Data to any business, organization or individual without the Client’s prior express consent.
3.4 Andzen Pty Ltd uses a third party to host the application servers and to provide communication services. That third party undertakes to provide its services at or above industry standards. Andzen Pty Ltd uses a separate third party to provide SMS text messaging services. Both third parties rely upon the services of other telecommunications operators. Accordingly, Andzen Pty Ltd does not warrant that the Services will be uninterrupted or error free nor that the delivery of e-mails or SMS text messages will be without delay. Andzen Pty Ltd will endeavour to ensure that any third parties involved in the supply of the Services take appropriate security measures to protect Data.
3.5 It may be necessary to temporarily suspend the Services from time to time to carry out maintenance of equipment; such suspensions will be limited. However, the Services may also be suspended (in whole or part) where Andzen Pty Ltd or the third party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation.
3.6 Andzen Pty Ltd may at any time without notifying the Client make any changes to the Services which are necessary to comply with any relevant statutory, regulatory or similar requirements which do not materially affect the nature or quality of the Services.
3.7 Andzen Pty Ltd will provide e-mail support for the Services during its usual business hours free of charge. Andzen Pty Ltd’s speed of response and other modes of support will depend upon the package and Charges agreed with the Client.
3.8 Andzen Pty Ltd reserves the right to gather, process and publish anonymous statistics on aggregate delivery and open rates and other campaign statistics. These statistics are produced on an aggregate basis across all clients, for the purposes of quality control and allowing clients to compare their performance across their particular industry. The gathering of these statistics will not require processing of any personal data.
4. CLIENT’S OBLIGATIONS
4.1 The Client shall ensure that it has suitable computer and communications equipment to utilise the
Services from time to time; Andzen Pty Ltd recommends that Client has, at minimum, a computer, internet connection
and a web browser with minimum specification of either
(i) Internet Explorer 9 or above (for a PC), or
(ii) Firefox 16 or above (for a MAC or PC), or
(iii) Chrome 23 or above (for a MAC or PC).
Any other web browsers shall be used at Client’s own risk as
they may not necessarily offer full functionality with Andzen Pty Ltd’s Software.
4.2 The Client shall obtain and maintain all necessary licences and consents and comply with all relevant legislation, including Data Legislation, in relation to the Services, before the date on which the Services are to start. The Client shall comply, and ensure that all of the Data and all use of the Services complies, in all respects, with all regulations, directions, codes of practice and other rules and guidelines, mandatory or otherwise, promulgated from time to time by regulators (collectively, “Codes”) including, without limitation, those of the Mobile Marketing Association (available at www.mmaglobal.com).
4.3 The Client shall procure that any subcontractors used by Client comply in all respects with the Codes as if they were the Client under this Agreement.
4.4 The Client shall ensure that where Andzen Pty Ltd is advised in writing by a Regulator that the Client is or has been in breach of any Code, Andzen Pty Ltd shall be entitled to act on any request or recommendation by the Regulator for access to be barred to such Services as the Regulator may specify for such periods as the Regulator specify. In these circumstances, the Client shall:
(a) provide all reasonable assistance to Andzen Pty Ltd in connection with Andzen Pty Ltd’s compliance with any requirements or conditions which are at any time imposed by law or any Regulator which are applicable to or affect the Services; and
(b) provide the Regulator with such information or material relating to the Services or a future service as the Regulator may reasonably request in order to carry out any investigation in connection with (i) the Services or (ii) Client’s relationship with a subcontractor.
4.5 The Client will keep its password and other access details for use with the Services confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information and treat it accordingly. The Client shall notify Andzen Pty Ltd without delay if it believes that such information is no longer secret.
4.6 The Client shall take account of and promptly comply with all reasonable directions of Andzen Pty Ltd in relation to its use of the Services. When considering the reasonableness of Andzen Pty Ltd’s directions account shall be taken of the rights of other clients of Andzen Pty Ltd, potential damage to the reputation of Andzen Pty Ltd or its services and any complaints received by Andzen Pty Ltd from third parties.
4.7 The Client acknowledges that Andzen Pty Ltd will monitor and record each account’s usage of the Services, to include any campaigns sent or data processed, for the purposes of ensuring legal compliance and anti-spam measures.
4.8 If Andzen Pty Ltd’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Client, its agents, sub-contractors or employees, Andzen Pty Ltd shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
4.9 The Client shall be liable to pay to Andzen Pty Ltd, on demand, all reasonable costs, charges or losses sustained or incurred by Andzen Pty Ltd (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under this Agreement, subject to Andzen Pty Ltd confirming such costs, charges and losses to the Client in writing. The Client shall indemnify Andzen Pty Ltd against any losses, claims, fines, damages and expenses (including legal expenses) arising from any breach of this clause 4.
4.10 The Client shall not, without the prior written consent of Andzen Pty Ltd, at any time from the date Client accepted these Conditions to the expiry of six months after the termination of this Agreement, solicit or entice away from Andzen Pty Ltd or employ or attempt to employ any person who is, or has been, engaged as an employee or sub-contractor of Andzen Pty Ltd in the provision of the Services.
5. CHARGES AND PAYMENT
5.1 Where the client chooses to pay monthly or has overage charges due, Andzen Pty Ltd will invoice the Charges each month on the Payment Day for the month concerned. The invoice shall be sent to the Client by email, detailing the minimum payment in advance for the following month and any payments due over the minimum payment for the previous month. Annual payments will be invoiced by email on the anniversary of the agreement date as detailed on the Service Order Agreement.
5.2 All charges quoted to the Client shall be exclusive of VAT which Andzen Pty Ltd shall add to its invoices at the appropriate rate;
5.3 The Client shall pay each invoice submitted to it by Andzen Pty Ltd, in full and in cleared funds, on the date of each invoice. Client shall make the payments in pounds Sterling and payments may be made by credit card, debit card, cheque or bank transfer. NO payment shall be deemed to have been made until Andzen Pty Ltd has received cleared funds.
5.4 If the Client wishes to make use of the SMS text messaging part of the Services, it must purchase SMS Credits. The purchase price for an SMS Credit and any bulk purchase discounts will be shown on the Site from time to time.
5.5 Time for payment shall be of the essence of this Agreement. Without prejudice to any other right or remedy that it may have, if the Client fails to pay Andzen Pty Ltd on the due date, Andzen Pty Ltd may:
(a) charge interest on such sum from the due date for payment at the annual rate of 3% above the base lending rate from time to time of Nat West Bank, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and Andzen Pty Ltd may claim interest under the Late Payment of Commercial Debts (Interest) Act 1998; and
(b) suspend all Services until payment has been made in full.
5.6 Andzen Pty Ltd may alter the level of Charges or the Charges payment terms from time to time on not less than 30 days’ written notice and shall notify Client of the changes to the Charges. If Client does not wish to accept the altered Charges, Client shall notify Andzen Pty Ltd of this and shall terminate this Agreement on one (1) month’s notice or as otherwise agreed with Andzen Pty Ltd.
5.7 All sums payable to Andzen Pty Ltd under this Agreement shall become due immediately on its termination, despite any other provision. This condition 5.7 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
5.8 Andzen Pty Ltd may, without prejudice to any other rights it may have, set off any liability of the Client to Andzen Pty Ltd against any liability of Andzen Pty Ltd to the Client.
5.9 Andzen Pty Ltd may, at it’s sole discretion, request a further pre-payment for services if the Client uploads data or sends emails in excess of their previously pre-paid allowance. Until such payment is made, further message delivery may be temporarily suspended.
6. DATA, DATA PROTECTION AND INDEMNITY
6.1 It is a condition of this agreement that the Client complies with all applicable Data Protection Legislation (including, if located in the European Economic Area “EEA”, any locally applicable legislation giving effect to EC Directive 95/46/EC, such as the provisions of the Data Protection Act 1998 or official guidance). In particular, the Client shall:
(a) take appropriate organisational and technical measures against unauthorised or unlawful processing;
(b) obtain express, specific and informed consent when obtaining sensitive personal data from Subscribers;
(c) if located or operating in the EEA, only transfer Data outside the EEA with, and only to the extent of, any express and informed written consent of the relevant Subscribers; and
6.2 The Client shall indemnify Andzen Pty Ltd against any loss, damage or expenses which may be incurred as a result of any breach of the Data Protection Legislation or from its use of any Data provided in the course of the Services (including in relation to any e-mails or SMS text message sent by the Client or at its instruction).
6.3 Andzen Pty Ltd shall, and any third parties it contracts with shall, comply with all relevant Data Protection Legislation in relation to its storage of Client’s Data.
6.4 Andzen Pty Ltd contracts with a third party to store the Data and back it up. Whilst that third party is obliged to carry out back-ups at regular intervals (at least daily), the Client is advised to make its own interim back-ups of all Data, particularly if it adds a significant amount of Data over a short time period. Andzen Pty Ltd shall have no liability for any loss or damage, however caused, arising from any loss of Data.
6.5 Andzen Pty Ltd has installed into the Software several procedures to help ensure compliance with relevant Data Protection Legislation, including the addition of unsubscription links in messages and the use of double opt-in techniques for data captured using Andzen Pty Ltd provided web forms. It is, however, the Client’s responsibility to ensure that their actions under this agreement are compliant with all Data Protection Legislation.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 As between the Client and Andzen Pty Ltd, all Intellectual Property Rights and all other rights in the Site and the pre-existing Materials (which, for the avoidance of doubt, includes the Trade Mark) shall be owned by Andzen Pty Ltd. Subject to condition 7.2, Andzen Pty Ltd licenses all such rights as are necessary to use the Software and Trade Mark to the Client on a non-exclusive, worldwide basis to such extent as is necessary to enable the Client to make reasonable use of the Services. If this Agreement is terminated, this licence will automatically terminate.
7.2 The Client acknowledges that, where Andzen Pty Ltd does not own any pre-existing Materials, the Client’s use of rights in pre-existing Materials is conditional on Andzen Pty Ltd obtaining a written licence (or sub-licence) from the relevant licensor or licensors on such terms as will entitle Andzen Pty Ltd to license such rights to the Client. Use of the Software is on the following terms:
(a) “use” of the Software shall be restricted to use over the internet and for the purpose of utilising the Services only;
(b) the Client shall have no right to copy, adapt, reverse engineer, decompile, disassemble or modify the Software in whole or part except as permitted by law;
(c) the Client shall have no right to grant sub-licences of the Software; and
(d) the Client acknowledges that the Software will not be treated as goods within the meaning of the Sale of Goods Act 1979.
7.3 The Client undertakes not to do or permit to be done any act which would or might jeopardise or invalidate any registration of the Intellectual Property Rights, or application for registration, nor to do any act which might assist or give rise to an application to remove any of the Intellectual Property from an official register or which might prejudice the right or title of Andzen Pty Ltd to the Intellectual Property.
7.4 The Client will not make any representation or do any act which may be taken to indicate that it has any right title or interest in or to the ownership or use of any of the Intellectual Property Rights except under the terms of this Agreement, and acknowledges that nothing contained in this Agreement shall give the Client any right, title or interest in or to the Intellectual Property save as granted hereby.
7.5 All use of the Intellectual Property rights (including the Trade Mark) by the Client shall be for the benefit of Andzen Pty Ltd and the goodwill accrued to the Client arising from its use of the Intellectual Property (including the Trade Mark) (but no greater or other goodwill) shall accrue to and be held in trust by the Client for Andzen Pty Ltd which goodwill the Client agrees to assign to Andzen Pty Ltd at its request and own cost at any time, whether during or after the term of this Agreement.
7.6 The Client shall direct any commercial enquiries in relation to the AndzenTM Services to Andzen Pty Ltd.
7.7 The Client shall use the Trade Mark in the form stipulated by Andzen Pty Ltd from time to time and shall observe any reasonable directions given by Andzen Pty Ltd as to colours and size of the representations of the Trade Mark and their manner and disposition on the Client’s products, packaging, labels, wrappers and any accompanying leaflets, brochures or other material. The Client shall be responsible for ensuring that all other requirements relating to labelling, packaging, advertising, marketing and other such matters are complied with. The use of the Trade Mark by the Client shall at all times be in keeping with and seek to maintain its distinctiveness and reputation as determined by Andzen Pty Ltd and the Client shall cease any use to the contrary as Andzen Pty Ltd may require.
7.8 The Client shall not use any mark or name confusingly similar to the Trade Mark in respect of any of its goods or use the Trade Mark as part of any corporate business or trading name or style.
7.9 The foregoing obligations as to Intellectual Property Rights shall remain in full force and effect notwithstanding any termination of the Agreement.
7.10 The Client shall as soon as it becomes aware thereof give Andzen Pty Ltd in writing full particulars of any use or proposed use by any other person, firm or company of a trade name, trade mark or get up of goods or mode of promotion or advertising which amounts or might amount either to infringement of Andzen Pty Ltd’s rights in relation to the Intellectual Property Rights or to passing off.
7.11 If the Client becomes aware that any other person, firm or company alleges that the Trade Mark is invalid or that use of the Trade Mark infringes any rights of another party or that the Trade Mark is otherwise attacked or attackable the Client shall immediately give Andzen Pty Ltd full particulars in writing thereof and shall make no comment or admission to any third party in respect thereof.
7.12 Andzen Pty Ltd shall have the conduct of all proceedings relating to the Intellectual Property Rights and shall in its sole discretion decide what action if any to take in respect of any infringement or alleged infringement of the Intellectual Property Rights or passing off or any other claim or counterclaim brought or threatened in respect of the use or registration of the Intellectual Property Rights. The Client shall not be entitled to bring any action relating to the Intellectual Property Rights in its own name but shall assist Andzen Pty Ltd in any such actions if requested.
8. CONFIDENTIALITY AND Andzen Pty Ltd’S PROPERTY
8.1 The Client shall keep in strict confidence all technical or commercial know-how, specifications, inventions, trade secrets, processes or initiatives which are of a confidential nature and have been disclosed to the Client by Andzen Pty Ltd, its employees, affiliates or sub-contractors and any other confidential information concerning Andzen Pty Ltd’s business or its products which the Client may obtain unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of such party from a third party. The Client shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Client’s obligations to Andzen Pty Ltd, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Client.
8.2 The restrictions at clause 8.1 shall not apply in respect of any disclosure to:
(a) their own employees which need to know the confidential information and which are bound by similar confidentiality restrictions; or
(b) to either parties’ legal advisors, a court, governmental body or applicable regulatory body; or
(c) organisations providing hosting and communications services to either party where such disclosure is incidental to the services provided and where those organisations are bound by similar confidentiality restrictions
For the avoidance of doubt, neither party shall disclose at any stage to any third party any confidential, business or future plans of the other party, including but not limited to the commercial terms of the Agreement unless a public disclosure, press statement or similar release or any advertising, publicity or promotional document has been specifically agreed to by a duly authorised representative of Andzen Pty Ltd.
8.3 This condition 8 shall survive termination of this Agreement, however arising.
9. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF THIS CONDITION
9.1 This condition 9 sets out the entire financial liability of Andzen Pty Ltd (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
(a) any breach of this Agreement;
(b) any use made by the Client of the Services, or any part of them; and
(c) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
9.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
9.3 Nothing in these Conditions limits or excludes the liability of Andzen Pty Ltd:
(a) for death or personal injury resulting from negligence; or
(b) for any damage or liability incurred by the Client as a result of fraud or fraudulent misrepresentation by Andzen Pty Ltd; or
(c) for any liability incurred by the Client as a result of any breach by Andzen Pty Ltd of the condition as to title or the warranty as to quiet possession implied by section 2 of the Supply of Goods and Services Act 1982.
9.4 Subject to condition 9.2 and condition 9.3
(a) Andzen Pty Ltd shall not be liable for: loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, loss of corruption of data or information, or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
(b) Andzen Pty Ltd’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the Charges paid for the Services in the preceding 12 months.
10.1 Without prejudice to any other rights or remedies which the parties may have, either party may terminate this Agreement without liability to the other on giving the other not less than one (1) months written notice or immediately on giving notice to the other if:
(a) the other party commits a material breach of any of the Conditions and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party; or
(c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986); or
(d) a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets; or
(e) the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
(f) the other party ceases, or threatens to cease, to trade; or
(g) there is a change of control of the other party (as defined in section 574 of the Capital Allowances Act 2001); or
(h) the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
10.2 Andzen Pty Ltd shall have the right to either suspend or terminate this Agreement with immediate effect if it should be discovered, through third party complaints or through Andzen Pty Ltd’s internal monitoring procedures, if Client is sending any SPAM messages through the Services. If Andzen Pty Ltd suspends a Client’s account then Client will have to rectify any damage caused, either to Andzen Pty Ltd’s reputation or to a third party, and will have to commit to not sending any further SPAM through the Services. If Andzen Pty Ltd terminates a Client’s account under this clause 10.2, Andzen Pty Ltd’s decision will be final.
10.3 On termination of this Agreement for any reason:
(a) the Client shall immediately pay to Andzen Pty Ltd all of Andzen Pty Ltd’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Andzen Pty Ltd may submit an invoice, which shall be payable immediately on receipt; if paying an annual contract by monthly instalments the full remaining balance of the annual contract amount will become immediately due;
(b) the Client’s password for its account shall immediately become ineffective; and
(c) the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
11. FORCE MAJEURE
Andzen Pty Ltd shall have no liability to the Client if it is prevented from or delayed in performing its obligations under this Agreement or from carrying on its business by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Andzen Pty Ltd or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
No variation of this Agreement or these Conditions shall be valid unless it is in writing and signed by or on behalf of each of the parties.
13.1 A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given.
13.2 Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
14.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will remain in force.
14.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, that provision will apply with whatever modification is necessary to make it valid, enforceable and legal.
15. STATUS OF PRE-CONTRACTUAL STATEMENTS
Each of the parties acknowledges and agrees that, in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these terms and conditions or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
16.1 The Client shall not, without the prior written consent of Andzen Pty Ltd, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
16.2 Andzen Pty Ltd may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
17. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18. RIGHTS OF THIRD PARTIES
This Agreement is made for the benefit of the parties to it and (where applicable) their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
Notice given under this Agreement shall be in writing, sent for the attention of the person, and to the address or fax number, given in this Agreement (or such other address, fax number or person as the relevant party may notify to the other party) and shall be delivered personally, sent by fax or sent by pre-paid, first-class post or recorded delivery, or sent by email. A notice is deemed to have been received, if delivered personally, at the time of delivery, in the case of fax, at the time of transmission, in the case of pre-paid first class post or recorded delivery, 48 hours from the date of posting and, if deemed receipt under this condition 19 is not within business hours (meaning 9.00 am to 5.30 pm Monday to Friday on a day that is a business day), at 9.00 am on the first business day following delivery. To prove service, it is sufficient to prove that the notice was transmitted by fax, to the fax number of the party or, in the case of post, that the envelope containing the notice was properly addressed and posted. If a notice is sent by email, it must be backed up by notice sent by first class post and shall be deemed received when the party serving notice receives confirmation by email from the other party that the notice has been received.
20. GOVERNING LAW AND JURISDICTION
20.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with, the law of Australia.
20.2 The parties irrevocably agree that the courts of Australia shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.
This agreement has been entered into on the date stated at the beginning of it.
Website terms and conditions
These terms and conditions relate to end users who use Andzen forms, this website, or the subscription management tools at http://subscriber.Andzen
For terms and conditions of use of the Andzen platform by clients, please see the terms and conditions link in your account.
Terms and conditions of use
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE REGISTERING WITH Andzen™. ALL Andzen™ SERVICES PROVIDED TO YOU ARE SUBJECT TO THESE TERMS. WE SUGGEST THAT YOU PRINT OUT AND KEEP A COPY OF THESE TERMS AND CONDITIONS.
PLEASE PAY PARTICULAR ATTENTION TO CLAUSES 7 AND 8.
Andzen™ is provided by Andzen Proprietary Limited (“Andzen Pty Ltd”) and references to “we”, “us” or “our” are to Andzen Pty Ltd.
1. The Agreement between us
1.3 Any error or omission of any information that we publish about the Services shall be subject to correction, provided that the correction does not materially affect the Services.
1.5 If you do not wish to accept any amended Terms of
2. Registration and using the Services
2.1 In order to use the Services you will need to:
(a) register your interest via SMS text message (“SMS”) (please see clause 3 below for details of SMS charges); or
2.2 You agree that you will register in your own name only and all information provided by you will be accurate and up-to-date. You agree to promptly update any of your details on the Site as necessary.
2.3 You may not transfer your membership to another person.
2.4 You are responsible for maintaining the confidentiality of your password and for all use of the Services made through your password. You agree to keep your password secret at all times and must inform us, and promptly change your password, if you believe that another person has become aware of your password or is using it or is likely to use it in an unauthorised way.
3. Cost of using the Services
3.1 Membership and use of the Services is free but you will be charged, at your mobile phone network service provider’s usual SMS message rate, for each SMS message that you send to us as part of the Services. You will not be charged for any SMS messages that you receive as part of the Services unless they have been clearly advertised as being premium rate.
3.2 SMS charges will be published alongside our SMS contact numbers on the Site and on promotional literature.
4. Intellectual Property
4.1 All information, data and materials used in the Services (including materials accessible on the Site and the software used to access the Services) are protected by rights, including copyright, design rights, database rights and trade marks. All these rights are either owned by us or licensed to us by the rights owner(s) for use with the Services or otherwise used by us as permitted by applicable law.
4.2 The Services are intended for individual, personal use only. Accordingly, you may print and download extracts from this Site for your own personal, non-commercial use, provided that any material copied remains intact and includes the following notice: “Copyright © 2009 Andzen Proprietary Limited. All rights reserved.” Any other copying, distribution, storing, framing or transmission of any kind or any sort of commercial use of our the material used in the Services is strictly prohibited without our express consent.
4.3 The word and logo “Andzen”, however represented, are trade marks of Andzen Pty Ltd. All rights reserved.
5. Acceptable Use Policy
(a) use the Services to receive, access or transmit material that is obscene, sexually explicit, defamatory, threatening, degrading, racist, in breach of confidence or in breach of third party intellectual property rights (including copyright) or otherwise objectionable or unlawful;
(b) impersonate any person, or entity or misrepresent your affiliation with anyone or entity;
(c) access or attempt to access parts of the Services that you are not authorised to access or collect or store other members’ usernames, passwords or personal data;
(d) avoid authentication processes or security of the Services or interfere with the use of the Services by other members;
(e) use the Services to gain unauthorised access to other computer systems or interfere with services to other host providers, networks or websites.
(f) reverse engineer or decompile (whether whole or in part) any software used in the Services;
(g) use the Services to knowingly or recklessly transmit material (including viruses) or otherwise use the Services so as to cause harm to the Services, Andzen Pty Ltd or other users or which is likely to bring the Services or Andzen Pty Ltd into disrepute; or
(h) intentionally violate any other applicable law or regulation while using the Services.
6. Competition and Prizes
6.1 We may run competitions, prize draws and promotions that will be subject to additional terms and conditions applicable to each individual instance and which will be made available at the time of such competitions.
7. Limits to your rights
7.2 You are responsible for providing all computer equipment, mobile phone equipment and telecommunications service required to use the Services. We cannot and do not accept any responsibility for these and cannot guarantee the continued availability of any other person or services involved in providing the Services to you.
7.3 The internet is not a secure environment and we cannot guarantee that the Site and the server are free of computer viruses or other harmful applications. We recommend that you regularly update your browser software and use up-to-date anti-virus software to ensure that your access to the Services is as secure as possible.
7.4 Your access to the Services may be occasionally restricted to allow for repairs, maintenance, the introduction of new facilities or services, or due to events beyond our reasonable control. Where this happens, we will attempt to restore the Services as soon as we reasonably can.
7.5 We have no control or proprietary interest in the companies or products with which you register your interest. We do not endorse any particular company or product. When you register your interest with a particular company, you will receive information from that company and we are not responsible for the content or the accuracy of such information. You should contact that company directly if you have any queries or complaints
7.6 We have no control over or proprietary interest in any websites that are hypertext linked to this Site. We make no representations or guarantees about those websites or their content, nor that the links work.
7.7 Should you purchase products or services from companies advertising on or linked to our Site, any contracts will be exclusively between you and the relevant company. We are not responsible for and do not endorse any other companies’ products or services.
8. Your responsibility to us
9. Terminations and Suspension
9.1 We may cancel or suspend your membership account and/or suspend your access to the Services if:
(b) you have behaved in a way which objectively could be regarded as inappropriate or is unlawful or illegal or which would bring us and/or the Sign-Up brand into disrepute.
9.2 We may suspend access to the Services or require you to change your password if we reasonably believe that the Services have been or are likely to be misused, and we will notify you accordingly.
9.3 It may be necessary, for reasons beyond our control, to terminate the Services and if this occurs we will endeavour to provide as much notice as is reasonably possible in the circumstances.
9.4 We may terminate the Services and this agreement between us by giving you 14 days notice.
9.5 You may terminate the Services at any time by closing your membership account as instructed on the Site or by contacting us as set out at clause 14 below.
9.6 Any termination of your membership account or the Services will not affect liability previously incurred by either of us to the other.
11. Disputes and law
11.1 We will try to solve any disagreements quickly and efficiently. If you are not happy with the way we deal with any disagreement you may wish to take court proceedings.
12. Access Outside The Australia
12.1 We cannot guarantee that the Services comply with all foreign and local laws and requirements outside the Australia.
14. Customer Services
The Services are provided by Andzen Proprietary Limited, a company registered in Australia with ABN .
If you wish to contact us regarding the Services, please use the following contact details:
45 Vernon Terrace,
E-mail: [email protected]