Premium Mail

BigPond Premium Mail - General Terms

These terms and conditions set out the terms on which we will:

• provide the Service to you; and
• license certain Software to you to use in conjunction with the Service.

Please read these terms carefully, and be sure that you understand them.

You should be aware that we can change these terms at any time. However, we will do so in accordance with the terms below. If we change these terms, this online version of these terms (http://www.bigpond.com/internet-plans/additional/premiummail/terms/default.asp) will always be updated to reflect those changes. The Service is only available if you are currently a BigPond customer.

Some of the words used in these terms have particular meanings, which are set out in clause 11.

1 Your obligations

1.1 You must:

1. be the same person as the customer of the BigPond Internet service to which this Service relates;
2. comply with any terms set out in the Rate Card;
3. pay all fees and charges associated with your use of the Service in accordance with clause 2;
4. promptly notify us if you believe or suspect that the Service has been compromised or is being used in a manner that breaches this Agreement; and
5. regularly check your default email address allocated by us for messages about your Service (or, if you have arranged for emails sent to your default email address to be forwarded to an alternate email address, you must check that alternate email address).

1.2 You acknowledge each of the following:

1. the Service is only provided to you for so long as you continue to take the BigPond Internet service to which the Service relates; and
2. due to the nature of the Service, we do not promise that it will be continuous, accessible at all times or fault-free.

2 Charges for your Service

2.1 You must pay the charges set out in the Rate Card for your Service from your Service Commencement Date. You acknowledge that the Service may have a different Service Commencement Date.

2.2 You must pay the Charges by the date specified on the invoice.

2.3 The monthly subscription fee is payable in advance and will not be reduced if the Service is cancelled part way through a billing cycle. If you have been migrated to BigPond's new environment, the subscription fee will be pro-rated so that you will only pay for the part of the month for which you subscribed to the Service.

2.4 If your Service or the BigPond Internet service to which this Service relates, is terminated for any reason, we may issue a final invoice immediately upon the termination.

2.5 We may issue your first invoice immediately upon your Service Commencement Date.

2.6 If any amount is unpaid after the due date for payment specified on any invoice, we may (without affecting any of our other rights under this Agreement), do any or all of the following:

1. charge you interest (at an annual rate equivalent to the official cash rate set by the Reserve Bank of Australia plus five per cent) on the unpaid amount from the date it was due until the date we receive full payment;
2. if the amount remains outstanding for 30 days after the due date, terminate this Agreement; and
3. if the amount remains outstanding for 60 days and there are reasonable grounds for believing you represent a credit risk, terminate any other agreements under which we supply you with services, and/or disconnect those services.

3 Commencement and termination of this Agreement

3.1 This Agreement commences on the date you accept these terms and conditions and complete the Sign Up Process.

3.2 You may subscribe to additional services or cancel the Service under this Agreement at any time. However, any cancellation will not become effective until the first day of your next monthly billing cycle for the Service. If you have been migrated to BigPond's new environment, termination will take effect immediately after we receive and process your cancellation request.

3.3 We may terminate your Service under this Agreement:

1. immediately, if we reasonably suspect that you have materially breached this Agreement in a way that cannot be remedied; or
2. if we reasonably suspect you have materially breach this Agreement in a way that can be remedied, but you do not remedy the breach within 14 days of us telling you to do so; or
3. at any time effective at the end of your monthly billing cycle, by giving you at least 30 days' prior written notice.

3.4 If your BigPond Internet service to which the Service relates is suspended, disconnected or terminated, then the Service may also be suspended, disconnected or terminated.

3.5 If the Service under this Agreement is suspended, disconnected or terminated, the liability of each party (if any) is set out in clause 6.

3.6 If the Service under this Agreement is terminated, any software licences granted to you under this Agreement in relation to that Service will immediately terminate.

4 Changing this Agreement

4.1 Except as set out in clause 4.2, we can change this Agreement (including the Rate Card) at any time without notice.

4.2 If we consider that a change would cause you detriment, we will notify you of the change by email, post or facsimile at least 30 days before the change will take effect.

4.3 If you do not notify us that you wish to terminate this Agreement or the Service within 14 days after receiving notice of a change under clause 4.2, then we will take your payment of charges for the Service provided to you after our notice as your agreement to the change.

4.4 For the purposes of notifying you of an intended change under clause 4.2 it is sufficient that we provide you with a summary of the proposed change to the Agreement and that we post on the BigPond website a revised copy of these terms and conditions or the Rate Card showing the proposed change.

5 Maintenance of the Service

5.1 If you experience a problem with your Service, you should notify our Customer Service Centre on the number set out on the BigPond website.

5.2 We will use all reasonable efforts as soon as possible to rectify any problem notified to us.

6 Limitation of liability

Our liability to you

6.1 This contract is made up of the terms that are expressly set out in this contract and those implied by laws that cannot be excluded by us. No other terms apply.

6.2 Clauses 6.3, 6.4 and 6.5 apply to you only if you are a Residential Customer.

6.3 We accept our liability to you if we breach this Agreement or act negligently under the principles applied by the courts, except as set out in clauses 6.4 and 6.5.

6.4 As you have taken up the Service predominately for personal, domestic or household use, we do not accept liability for any business related losses that result from the use of the Service. However, we will accept that liability if it cannot be excluded under any legislation.

6.5 We are not liable for any loss to the extent that it is caused by you, for example, through your negligence or breach of this Agreement.

6.6 Clauses 6.7, 6.8, 6.9, 6.10 and 6.11 apply to you only if you are a Business Customer.

6.7 Given the nature of telecommunications systems (including the Service's reliance on systems not owned or controlled by us) we cannot promise that the Service will be continuous or fault free. Accordingly, we limit our liability to you for losses resulting from any interruption or delay to your Service to an amount equal to the service charges billed for the affected Service for the period of the interruption or delay.

6.8 Subject to clause 6.11, we accept liability arising from our breach of contract or negligence:

1. for any personal injury or death to you, your employees, agents and contractors in relation to the supply of the Service;
2. for any damage to your real or tangible property resulting from the supply of the Service, but we limit our liability to our choice of repairing or replacing the property or paying the cost of repairing or replacing it; and
3. unless clause 6.7 applies, for any other cost or expense you reasonably incur that is a direct result of, and flows naturally from, such breach or negligence (but excludes loss of profits, likely savings and data), but we limit our liability for all such claims in aggregate to the total amount payable to us under this Agreement in respect of the first year of the Agreement.

6.9 Other than for the liability we accept under this clause 6, we exclude all other liability whether to you or a third party for breach of contract, negligence or breach of any other law. For any liability which cannot lawfully be excluded as it is under this clause 6, our liability is limited to resupplying or paying the cost of resupplying services and repairing, replacing or paying the cost of repairing or replacing goods.

6.10 Notwithstanding anything else in this clause 6, our liability will be reduced to the extent the loss or damage is caused by you, your employees, agents or contractors.

6.11 We will not be responsible for any loss or damage arising from circumstances outside our reasonable control.

Your liability to us

6.12 You are liable to us if you breach this Agreement or act negligently under the principles applied by the courts. However, you are not liable for any loss we suffer to the extent that it is caused by us, for example, through our negligence or breach of this Agreement.

7 Privacy

7.1 Please read Telstra's "Protecting your Privacy" statement (available at http://www.telstra.com.au/privacy). It summarises how we and our related companies will collect, use and disclose your personal information (including for marketing to you) and your rights to access and correct that information.

7.2 For the purposes of this clause 7, "you" and "your" refers to you and your People (if applicable).

8 Transferring your Service or this Agreement

8.1 You may not transfer your rights and obligations in respect of the Service or under this Agreement without our prior consent (which we will not unreasonably withhold).

8.2 We may transfer all or any of our rights or obligations in respect of the Service or under this Agreement at any time. If we do so, we will try to notify you beforehand (otherwise we notify you within 30 days after the transfer).

9 Taxes

9.1 The charges in the Rate Card may not include all taxes. You must pay us on request any stamp and other duties, fees, taxes (including GST) and charges payable on:

1. this Agreement or the performance of this Agreement; and
2. any payment, receipt or other transaction arising out of this Agreement.

9.2 GST may be imposed on a supply we make to you under this Agreement. Unless the consideration payable for the supply is expressed to include GST, you must pay on our demand an additional amount to cover the GST. We will issue a Tax Invoice to you for any supply on which GST is imposed.

9.3 In this clause 9, "GST" and "Tax Invoice" have the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

10 General terms

10.1 We are not to be taken to waive any of our rights under this Agreement merely because we do not exercise them or delay in exercising them.

10.2 This Agreement is governed by the laws of the State or Territory in Australia in which you reside. Nothing in this Agreement, or any actions we take under it constitute a submission by us to any foreign jurisdiction.

10.3 Clauses 6, 7, 9 and 10 and clause 6 of the Schedule survive termination of this Agreement (regardless of any other clauses that may survive termination).

10.4 If we need to notify you of any matters relating to the Agreement, we may use email to your default email address allocated by us, or post or fax.

10.5 If there is an inconsistency between these terms and conditions and the terms in conditions in the Schedule, these terms and conditions will prevail.

11. Glossary

Words in this Glossary with initial capital letters (eg, Agreement) have defined meanings, as follows:

Agreement means these terms and conditions (including the Schedule for the Service and the Rate Card.

Business Customer means a customer who is not a Residential Customer.

Loss means loss or damage of any kind, however caused, whether in contract, tort (including negligence), under any statute or otherwise arising from or related in any way to this Agreement or its subject matter.

PC means the personal computer through which you access the Service.

People means employees, agents, sub-agents and their respective employees.

Rate Card means the Premium Mail rate card setting out the fees and charges applicable to your Service (as amended from time to time). The current Rate Card is located on Telstra's website at http://www.bigpond.com/internet-plans/additional/premiummail/.

Residential Customer means a customer who takes up the Service predominantly to use for personal, household or domestic use or consumption.

Schedule - means the attached BigPond Premium Mail specific terms schedule.

Service - means the BigPond Premium Mail Service.

Service Commencement Date means the date you accept these terms and conditions.

Sign Up Process means the online sign up process for the Service.

Software means any software we may supply to you for use in conjunction with the Service, including any upgrades and updates.

You and your (whether or not with initial capital letters) refer to the person named as the Customer in the Sign Up Process.

We, our, and us (whether or not with initial capital letters) refers to Telstra Corporation Limited (ABN 33 051 775 556) and where applicable includes our People.

Schedule 1 - Premium Mail - specific terms

1 Service Description

1.1 BigPond Premium Mail is an electronic mail service that is accessible through the Internet and from a web browser. The full description and features of the Service are available on the BigPond Website.

1.2 The Service includes the Software for downloading onto your PC.

1.3 The Service does not include:

1. correction of errors or defects caused by the operation of the Service in a manner other than that specified in these terms and conditions; or
2. any equipment, telecommunications services or Internet access required to access, or use features of, the Service.

2 Availability

2.1 In order to use the Service, you must:

1. be a post-paid BigPond Internet service customer;
2. have access to an Internet connection; and
3. have requested us to host your domain name or have requested the party hosting your domain name to configure the mail exchange record to refer to the Telstra BigPond Internet Server we nominate to you.

2.2 If you wish to use certain features of the Service, then you may be required to have access to compatible equipment with a relevant telecommunications service, for example a compatible mobile phone with a GPRS service. You may obtain such equipment and telecommunications service at an additional cost, and you will be responsible for the related usage charges.

3 Domain name services

3.1 Customised domain name services are available to BigPond Premium Mail customers.

3.2 If requested by you, we will, as your agent, apply for the domain name requested by you ("Requested Domain Name"). We do not guarantee that we will be successful in our application for the Requested Domain Name.

3.3 If the application for the Requested Domain Name is successful, then we will become the Delegated Domain Administrator ("DDA") for that domain name. When we become the DDA pursuant to this clause 3.3, we will automatically direct to a Telstra BigPond Internet Server (or such other Internet server we nominate) all electronic mail messages received by us and addressed to you using the Requested Domain Name.

3.4 If you request us to register a .com, .net, .org, .biz, or .info domain name ("TLD" or "Top Level Domains") on your behalf, then you agree that you have read and accepted the General Registrar policy applicable to .com, .net, .org, .biz and .info domain names issued by the registrar TPP Internet located at http://www.tppinternet.com/pub/dotau/terms.php#gtld, as amended from time to time.

3.5 If you request us to register a .com, .net or .org domain name on your behalf, you agree that you will comply with any policy applicable to .com, .net and .org domain names issued by ICANN from time to time ("Policy"). For more information, see http://www.icann.org/.

3.6 In the event of a dispute in registering a TLD, or a dispute about a TLD after registration, you will:

1. submit to and be bound by Uniform Domain Name Dispute Resolution Policy located at http://www.icann.org/udrp/, as amended from time to time; and
2. be subject to arbitration, suspension or cancellation by any ICANN procedure, or by any registry administrator procedure approved by ICANN policy, relating to:
   1. the correction of mistakes by us or the registry administrator in registering the domain name; or
   2. the resolution of disputes concerning the domain name.

3.7 If you request us to register a .com.au, .id.au, .net.au or .org.au domain name (".au Domains" on your behalf, then you agree that you have read and accepted:

1. the policies applicable to Terms and Conditions for .au Domain Name Licences issued by the registrar TPP Internet located at http://www.tppinternet.com/pub/dotau/terms.php#au, as amended from time to time; and
2. the .au 2LD Domain Name Eligibility and Allocation Policy Rules issued by .au Domain Administration Limited ("auDA") located at http://www.auda.org.au/policies/auda-2005-01/, as amended from time to time.

3.8 If we apply for a Requested Domain Name, you agree that:

1. in the event of a dispute in registering a .au Domain, or a dispute about a .au Domain after registration, you will submit to and be bound by the .au Dispute Resolution Policy ("auDRP") located at http://www.auda.org.au/audrp/audrp/, as amended from time to time;
2. by maintaining the registration of the Requested Domain Name after changes to the applicable policies become effective, you accept those changes. We do not have control over these policies and you may not be notified that they have changed. It is very important that you check the most up-to-date version of the applicable policies regularly;
3. in the event of a dispute regarding the Requested Domain Name, you will submit to the jurisdiction of the courts as provided in the applicable policies;
4. you must pay any registration or delegation charges to us in advance. A Requested Domain Name cannot be registered unless you pay for it in advance;
5. we make no representations and give no warranties regarding the availability of the Requested Domain Name;
6. you authorise and direct us to nominate Telstra Corporation Limited ABN 33 051 775 556 or WebCentral Pty Limited ACN 084 429 318 as the authorised billing contact for the Requested Domain Name;
7. you acknowledge that we are not liable for any loss or damage resulting from the non-renewal of the Requested Domain Name if you fail to provide us with consent to renew the Requested Domain Name registration or you delay in providing us with such consent.
8. by applying for a Requested Domain Name or providing us with your consent to renew the Requested Domain Name registration, you warrant that you are, and will remain, eligible to register the Requested Domain Name during the registration or renewal period; and
9. you are responsible for all claims against us arising out of the registration, use or renewal of the Requested Domain Name, if the claim is based on conduct which would be a breach by you of these terms and conditions or the warranty statement you made when applying for, or renewing, a Requested Domain Name. You are not responsible to the extent that the claim arises out of our breach of this Agreement, or our negligent act or omission.

4 Service availability

4.1 We do not warrant that the Service will be supplied at all times without any outage, fault or delay.

4.2 We may perform scheduled and unscheduled maintenance to the systems that we use to provide the Service. We will attempt to perform all scheduled maintenance at times which will affect the fewest customers.

4.3 We may archive your data on a regular basis for the purposes of disaster recovery. In the event of equipment failure or data corruption, we will use reasonable endeavours to restore your data from the last known good archive. We do not warrant that backups will:

1. occur on every scheduled occasion;
2. be complete; or
3. be uncorrupted.

4.4 The terms and conditions set out in Annexure 1 also apply to your use of the Microsoft software that is provided by us as part of the Service.

5 Use of the Service

5.1 You must advise us in a timely manner if you have reason to suspect that the Service is being used contrary to this Agreement.

5.2 We will determine, in our absolute discretion, the location from which your Service is provided from time to time.

5.3 You must not re-sell the Service.

5.4 We will charge you an additional fee, as set out in the Rate Card applicable to your Service, if all the messages in your mailbox (including attachments) exceed your Mail Quota.

5.5 If you ask us to provide any services that are not set out in this Schedule, for example to assist you to transition or migrate a mailbox, then if we agree to provide those services to you, we will charge you, and you agree to pay, an additional fee. We will tell you about this additional fee when you make your request (and let you know whether the fee is set out in the Rate Card or an amount which we tell you).

6 Dictionary

6.1 Unless the contrary intention appears, capitalised words (e.g. Plans) in this Schedule have defined meanings, as follows:

.au Domains has the meaning given to that term in clause 3.6 of this Schedule.

auDA has the meaning given to that term in clause 3.6 of this Schedule.

auDRP has the meaning given to that term in clause 3.7 of this Schedule.

BigPond website means our website at http://www.bigpond.com/.

DDA has the meaning given to that term in clause 3.2 of this Schedule.

Eligible Additional User means a person (other than you) whom you have nominated and we have authorised to access your BigPond Broadband Cable/ADSL service through your modem.

GPRS means the packet-based wireless communication service that allows compatible devices access to the Internet.

ICANN means the Internet Corporation for Assigned Names and Numbers.

Mail Quota means the maximum size allocated to you for your mailbox equal to 20MB or as set out in the Rate Card applicable to your Service.

MB means megabyte, a unit of information equal to one million (1,048,576) bytes.

Policy has the meaning given to that term in clause 3.4 of this Schedule.

Rate Card means the Premium Mail rate card setting out the fees and charges applicable to your Service (as amended from time to time). The current Rate Card is located on Telstra's website at http://www.bigpond.com/internet-plans/additional/premiummail/.

Requested Domain Name has the meaning given to that term in clause 3.1 of this Schedule.

Software means the Microsoft software product, Microsoft Office Outlook, the version as determined by us from time to time and includes any documentation provided in "online" or electronic form and any updates to the Software or documentation that are provided to you.

TLD and Top Level Domains has the meaning given to those terms in clause 3.3 of this Schedule.

Annexure 1 - Terms and conditions regarding use of Microsoft software

1 General terms and definitions

1.1 These terms and conditions apply to your use of Microsoft software provided by us or our supplier as part of the Service and supersede the terms of any Microsoft End User License Agreement which may be presented in electronic form during your use of that software.

1.2 In this Annexure 1, the words below have the following meanings:
Client Software means software that allows a Device to access or utilize the services or functionality provided by the Server Software, and includes the Microsoft(r) Outlook(r) 2003 software.
Device means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, "smart phone" or other electronic device.
Microsoft means Microsoft Corporation.
Server Software means software that provides services or functionality on a computer acting as a server.
Software Products means the Microsoft software provided by us as part of the Services and which may include associated media, printed materials, and "online" or electronic documentation and any incorporated images, photographs, animations, video, audio, music, text and "applets".
Redistribution Software means certain "sample", "redistributable" and/or software development ("SDK") software code and tools.

2 Your obligations

2.1 The Software Products are licensed to us or our supplier from an affiliate of Microsoft. All title and intellectual property rights in and to the Software Products are owned by Microsoft or its suppliers. The Software Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Software Products does not transfer any ownership of the Software Products or any intellectual property rights to you.

2.2 You may use the Client Software installed on your Devices only in accordance with our instructions and in connection with the Service as follows:

1. to install on one (1) Device only. You must obtain additional licences for each additional concurrent use;
2. only to connect to the Service; and
3. for the duration of this Agreement.

2.3 Through your use of the Services, you may gain access to the Redistribution Software. You may not use, modify, copy, and/or distribute any Redistribution Software unless you expressly agree to and comply with certain additional terms notified by us to you.

2.4 Except for making one (1) copy of Client Software on your Device as expressly authorized by us ("Permitted Copy"), you may not make any copies of the Software Products or copy any printed materials accompanying the Software Products. You must erase or destroy the Permitted Copy upon the earliest of:

1. termination or cancellation of this Agreement;
2. notice from us; and
3. transfer of your Device to another person or entity.

2.5 You must not:

1. remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on the Software Products or that appear during their use;
2. reverse engineer, decompile, or disassemble the Software Products, except to the extent permitted by law notwithstanding this limitation; and
3. rent, lease, lend, pledge, or directly or indirectly transfer or distribute the Software Products to any third party, and you may not permit any third party to have access to and/or use the functionality of the Software Products.

2.6 The Software Products are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the Software Products, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.

2.7 Without prejudice to any other rights, we may terminate your rights to use the Software Products if you fail to materially comply with these terms and conditions.

2.8 If this Agreement or your right to the use Software Products is terminated or cancelled, you must:

1. stop using and accessing the Software Products; and
2. destroy all copies of the Software Products and all of its component parts.

3 Liability

3.1 Any product support for the Software Products is provided to you by us and is not provided by Microsoft or its affiliates or subsidiaries.

3.2 To the extent permitted by applicable law, we do not make any representations or express warranties with respect to the Software Products. Our liability to you is set out in clause 6 of the Ageement. However, notwithstanding anything in this Agreement, consumers may have the benefit of certain rights or remedies pursuant to the Trade Practices Act 1974 (Cth) and similar state and territory laws in Australia in respect of which liability may not be excluded. If so, then to the maximum extent permitted by law, such liability is limited at our option, in the case of goods to either (i) replacement of the goods or (ii) correction of defects in the goods, and in the case of services to either (i) resupply of the services or (ii) the cost of the resupply of the services.

3.3 To the maximum extent permitted by law, Microsoft and its affiliates and subsidiaries, disclaim all warranties, liability for damages (whether direct, indirect or consequential), and any remedies arising from, or relating to, your use of the Software Products.

3.4 The Software Products may contain technology that is not fault tolerant and is not designed, manufactured, or intended for use in environments or applications in which the failure of the Software Products could lead to death, personal injury, or severe physical, property or environmental damage.

3.5 In addition to any liability you may have to us, you agree that you will also be legally responsible directly to Microsoft for any breach of these terms and conditions.