Last Updated: 17th of April 2021
These terms constitute an agreement between you and MSPM Holdings Pty Ltd ABN 85 648 305 971 of 385 Burke Road, Glen Iris, Victoria, 3146 Australia (“we, “our”, “us”, “MSPMagic”, “MSP Magic” and “MSPM” referring to this company). “You” and “your” and “your personnel” refer to the person who uses our software as a service or registers an account with us. What we supply (known and referred to in these terms as “MSPMagic Service” is what we may make available to you during each pre-paid service period of your authorised access to our service, which may change from service period to service period, and otherwise as provided in these terms. You acknowledge that any trial afforded to you as well as the descriptions of our service at https://mspmagic.com/ have given you the opportunity to familiarise yourself with the service at the relevant time before committing to that service. The account you register with us is referred to in these terms as “MSPMagic Account”. By registering an account or using the MSPMagic Service, you agree to be bound by these terms and all other policies and terms of which we may notify you prior to your permitted use of the MSPMagic Service. If you do not wish to be bound by these terms, do not use the MSPMagic Service and do not register an account with us.
These terms and any additional terms specified in your registered MSPMagic Account apply to all supplies facilitated via the MSPMagic Service (“MSPMagic Service”).
1.1 If you have a current MSPMagic Account and subject to these terms, including your compliance with them, your permitted access to the MSPMagic Service will be recognised by us for the sole purpose and to the extent we reasonably consider appropriate for facilitating the dealings set out on https://mspmagic.com/ in any event on a non-exclusive, personal basis.
1.2 You agree that if any consents are needed for your effective use of the MSPMagic Service (for example consents for us to access, use, store and disclose your content) you will procure these consents and that our obligations under these terms are conditional on those consents having been procured. You agree to comply with our reasonable requests for confirmation of this.
1.3 Our aim is that the MSPMagic Service is a remote monitoring and management tool to assist with your interactions those of your customers you consider are appropriate having regard to the nature of the MSPMagic Service. You agree that the MSPMagic Service does not include us having any responsibility for any and all interactions (including communications and dealings) with your customers (whether they are referred to as “tenants”, “customers”, “users”, “clients” or otherwise) (“customers”).
1.4 While we strive to keep the MSPMagic Services continuously operational, you accept that they may suffer occasional disruptions and outages, and we are not liable for any loss you may suffer as a result. You accept the sole risk that if there is a disruption or an outage, you may not be able to retrieve your content (further terms regarding your content are in the following clauses). You accept sole risk to implement risk mitigation strategies which a prudent person in your position would implement in the circumstances.
1.5 You acknowledge and agree:
(a) that we may configure our systems and determine the nature and manner of our technical support in such manner as we consider appropriate from time to time;
(b) to comply with such access and use policies and procedures (including as to communications and security) as we publish from time to time (including via https://mspmagic.com/ );
(c) that the MSPMagic Service offers no features (whether performance, functionality or otherwise) which is not expressly stated from time to time at https://mspmagic.com/ or in other MSPMagic “Knowledge” resources which have been both authored and published by us in writing;
(d) not to do or permit anything to be done in respect of the MSPMagic Service which is not expressly permitted by these terms. For example, you agree not to remove or modify any notice of our rights, engage in any form of content extraction/reproduction processes (for example those referred to as screen scraping or web crawling) or make any use of any content accessible via the MSPMagic Service other than solely as necessary to use the MSPMagic Service’s tools to assist with the remote management and monitoring of your customers’ relevant services and otherwise in accordance with these terms;
(e) to use reasonable efforts to prevent unauthorised third parties from accessing the MSPMagic Service;
(f) that you will not make or permit any use of the MSPMagic Service in a way which we reasonably consider unacceptable. Examples are uses which involve misleading, defamatory or socially unacceptable content;
(g) other than as specified in your MSPMagic Account details, MSPMagic Service do not involve us making any data backups, whether of your data, customers’ data or otherwise. You accept sole responsibility for making such data backups as a prudent company in your position would make in all the circumstances.
2. Content Generally
In these terms “content” refers to all information (including data) in any form and includes text, graphics and sound. “Your content” includes all content of yourself, your customers and third parties from whom you or your customers may have sourced content. You agree that:
(a) we are not responsible for and do not endorse any content other than content developed by us from our own data sources which is also published by us under our authority;
(b) we have no obligation to moderate, monitor, edit, approve or remove any content;
(c) you have sole responsibility for the accuracy, quality, integrity, legal compliance, reliability, appropriateness and rights ownership in all your content;
(d) you will not rely, and will not allow your customers to rely, on the MSPMagic Service, as guaranteeing or otherwise representing that it will produce any outcome, whether as to security, data integrity, access or otherwise. You acknowledge that while we aim to comply with our security practices and procedures, and subject to the Mandatory Protections referred to in clause 7, we do not give any guarantee or other representation concerning such practices and procedures;
(e) the MSPMagic Service’s facilities do not assist you to consider all the matters that should be considered in any decision-making of any relevant kind and will not be used by you as a substitute for your own independent and appropriately informed decisions regarding the affairs of yourself and your customers;
(f) you will not make or permit any access to or use of the MSPMagic Service unless you have in place all such strategies as a prudent person in your position would implement to manage risks associated with the MSPMagic Service, whether as to use, availability or non-availability or otherwise, an assessment of which you will make in your own independent judgement;
(g) you will be responsible for providing your own access facilities (which include telecommunications services and access devices);
(h) you will ensure that all your access facilities meet prudent security standards, including those which may be reasonably required by us from time to time or otherwise published via https://mspmagic.com/ and will remain free from any circumstances (including viruses) which may adversely affect us or the MSPMagic Service;
(i) your access facilities will be reasonably appropriate for use in conjunction with the MSPMagic Service;
(j) your rights to access the MSPMagic Service are limited as provided in these terms; and
(k) we may take such action as we consider reasonably appropriate if any circumstances occur in respect of the MSPMagic Service which we consider to be unacceptable. Such actions may include blocking or removing communications; suspending or terminating access and notifying third parties such as law enforcement officers and rights owners.
3. Intellectual Property Rights
3.1 You agree that we own all right, title and interest (including intellectual property) in and to the MSPMagic Service. You agree not to copy, reproduce, alter, modify, reverse engineer or create derivative works from the MSPMagic Service, save to the extent required by law, and then only subject to such protections of our intellectual property as are reasonably appropriate in the circumstances.
3.2 You do not acquire any rights in connection with the MSPMagic Service other than those usage rights permitted under your MSPMagic Account. You do not acquire any right, title or interest in or to any improvements, modifications, alterations, adaptations or derivative works of the MSPMagic Service created or developed by us in the course of providing the MSPMagic Service to you.
3.3 Nothing in these terms confers on you the right to sub-license the use of or access to the MSPMagic Service to third parties. The MSPMagic Service is for the use of your own business, only, not for the interests of any third party.
3.4 You agree that there are circumstances where we may consider it reasonably appropriate to make uses and disclosures of your content. In addition to other consents provided to us in these terms, for example under clause 7 (Confidentiality), you acknowledge that there are circumstances where it may be appropriate for us to make disclosures to those who appear to us to have a legitimate interest. Examples are law enforcement officers, third parties who have system interfaces to your content or the MSPMagic Service, authorise representatives of professional or industry standards associations and disclosures permitted by law. You grant us an irrevocable, non-exclusive, royalty free licence to make such uses and disclosures of your content as we consider reasonably required in connection with the MSPMagic Service having regard to any and all such circumstances.
3.5 You agree to indemnify us against any Claims (Claims being defined in 5) made against us by a third party (including any of our related bodies corporate) in connection with or arising from any allegation that our collection, storage, use or disclosure of anything made available by you (including your customers) in connection with these terms contravenes anyone’s rights.
4. Microsoft Azure Infrastructure and changes
4.1 You agree that the MSPMagic Service is limited as follows:
(a) the MSPMagic Service is controlled and operated from Microsoft Azure serverless infrastructure (“Microsoft Azure Platform”) and that we make no representations that the MSPMagic Service is appropriate or available for use on other infrastructure;
(b) you agree to comply with the Microsoft Azure Platform policies and procedures as are referred to in your MSPMagic Account details or which we otherwise give reasonable advance notice of from time to time.
4.2 You agree that we may change these terms from time to time and that the Azure Platform terms, policies and procedures may change from time to time. If you do not accept the change, you may terminate these terms by giving 10 business days’ written notice of termination to us on being notified by us of the changes. If we have not received your written notice of termination within 25 business days of having notified you of the change, you agree that we may act on the basis of the changes having been accepted by and legally binding on you.
5.1 You agree to pay the fees and all additional charges referred to in the following subclause (Fees) for the MSPMagic Service in the amount and in the manner specified in the payment and billing section of https://mspmagic.com/ and otherwise in accordance with your MSPMagic Account details. You agree that:
(a) your authorised access to the MSPMagic Service is subject to all fees for a service period being paid in advance, with the due date and time being 12:00 a.m. on the first day of each of our service periods, with the applicable time zone being Melbourne, Australia time (AEST or AEDT depending on the time of the year);
(b) if you wish to terminate your MSPMagic Service, you will provide us with termination notice earlier than that date and time in the manner set out in the payment and billing section of https://mspmagic.com/;
(c) you are not eligible for any refunds, for example if you seek to terminate your MSPMagic Service part way through a service period;
(d) fees may change from service period to service period. We will give you prior notice of any proposed change.
5.2 You shall pay us such additional charges (in accordance with our standard time rates) as we invoice from time to time for the supply of goods or services we are required or agree to provide as a result of our relationship with you and which were not expressly required by these terms. These supplies may, for example, for attendances in connection with requested or required legal compliance or your non-performance of these terms.
5.3 If you dispute the whole or any portion of an invoice submitted by us, you shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify us in writing (within 5 business days of receipt of invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then you shall pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in these terms (and at the rate of interest which is 2% above the lending indicator rate for overdraft facilities in excess of $100,000 as published by Commonwealth of Australia bank during the relevant overdue period).
5.4 In addition to paying the Fees and any other amount payable under or in connection with these terms (which are exclusive of applicable taxes), you shall pay to us an amount equal to any tax payable for any supply by us in connection with these terms. You shall make such payment either on the date when the Fees or other amounts to which it relates is due or within 5 business days after our request, whichever is the later, in either case subject to us providing a tax invoice for such tax.
6. Your Warranties
6.1 You warrant that:
(a) the tools made available by the MSPMagic Service are facilities which offer a range of decision-making. Those facilities include options regarding storage, configuration, data retention, user interfaces, authentication, security and notifications. You warrant to us that you will exercise a high degree of care and skill in your decision-making regarding how to make use of MSPMagic Service for yourself and customers and in your implementation of arrangements which may be appropriate to ensure continuity of your business or services to customers if the MSPMagic Service is not available for any reason;
(b) you have not entered into any other agreement, arrangement or understanding which may conflict with these terms;
(c) you are solely responsible for the supply or acquisition (as the case may be) of the goods and services you elect to have facilitated via the MSPMagic Service and when you have any communication with others in relation to such goods and services, you are doing so under a direct legally-compliant arrangement with the counterparty, not with us, and that you are solely responsible for your relevant supply or acquisition terms in respect of all customer and other third party relationships; and
(d) you will meet all eligibility criteria specified in your MSPMagic Account details from time to time. This may include your status as a Microsoft Partner.
6.2 You agree to takes sole responsibility for your actions, including being a sufficiently fit and competent person to supply or as the case requires receive the services you may transact via the MSPMagic Service. On request, you agree to give us such information as we reasonably request (in such form as we also reasonably request) confirming your compliance with all eligibility criteria.
7.1 Subject to the following subclause, each of us agrees that we shall not, without the prior written approval of the other, use or disclose the other’s confidential information. We acknowledge that your confidential information includes your customers’ data which you are authorised to make available to us as part of your use of the MSPMagic Service.
7.2 Neither of us will be in breach of the previous subclause for any uses or disclosures of the other’s confidential information to the extent those uses or disclosures:
(a) are permitted by these terms;
(b) are required by law;
(c) are to related companies, advisers, contractors, auditors or insurers;
(d) in connection with a business transfer as referred in clause 12;
(e) have become public knowledge other than through wrongful act or omission; or
(f) in the case of our uses and disclosures, are reasonably required in connection with your relationship with us under these terms, for example in connection with our relationship with the provider of the Microsoft Azure Platform, and providers of operational and security services to us.
8. Limitation of Liability
8.1 Nothing in these terms restricts or excludes our liability to you for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; fraud or fraudulent misrepresentation; or (subject to the operation of clauses 7 to 8.9) any other liability in respect of which it would be unlawful to restrict or exclude our liability.
8.2 Except as expressly stated in these terms:
(a) you are responsible for making all arrangements necessary for you to have access to the MSPMagic Service and we shall not be liable to you under any circumstances for your improper use of or inability to use the MSPMagic Service or our systems;
(b) we do not guarantee that the MSPMagic Service will be secure or free from bugs or viruses. You are responsible for configuring your systems in order to access the MSPMagic service including deploying your own virus protection software. We will not be liable for any loss or damage caused by a virus, distributed denial-of-service attack, or other technologically harmful material that may affect your content or the systems of yourself or third parties;
(c) you assume sole responsibility for results obtained from the use of the MSPMagic Service, for conclusions drawn from such use and for all uses and disclosures of those results. We shall have no liability for any damage caused by errors or omissions in any information or instructions provided to us by you in connection with the MSPMagic Service, or any actions taken by us at your direction;
(d) we do not give any representation, warranties or undertakings in relation to the MSPMagic Service or your content. Any representation, condition or warranty which might be implied or incorporated into these terms by statute, common law or otherwise is excluded to the fullest extent permitted by law;
(e) the Service is provided to you on an “as is” basis; an
(f) the Service is provided to you for your own internal business purposes only and not for commercialisation or other dealing in favour of any other person.
8.3 Subject to clauses 1 and 8.7 to 8.9, we will under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with these terms for:
(a) any loss of profits, sales, business, or revenue; or
(b) loss or corruption of data, information or software; or
(c) loss of business opportunity; or
(d) loss of anticipated savings; or
(e) loss of goodwill; or
(f) pure economic loss; or
(g) any indirect or consequential loss.
8.4 Subject to clauses 1 and 8.7 to 8.9, our total liability to you in respect of all losses arising under or in connection with these terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed a sum equivalent to the total aggregate Fees paid by you to us in the 2 months immediately preceding the event giving rise to the liability.
8.5 To the extent permitted under Mandatory Protections (as referred to in clause 7), you release, waive and discharge us and our related companies and their respective representatives, officers and employees and those in privity with them (“releasees”) from and against:
(a) any loss (including legal costs, expenses and liability) incurred or suffered by any of the releasees arising from any claims against any of the releasees where such loss or liability was caused by a breach by you of your obligations under these terms or any of your wrongful, unlawful or negligent acts or omissions and
(b) any loss (including legal costs and expenses and liability) suffered or incurred you and your personal representatives, assigns, heirs, and next of kin or wards on account of death or injury to person or property, arising out of or related to any goods or services supplied, or the supply of which has been facilitated, via the MSPMagic Service, whether caused in whole or in part, by the sole or concurrent negligence of the releasees or otherwise, including, without limitation, negligent response as well as any and all actions, counterclaims or cross actions, claims, demands, damages, costs, legal fees and expenses of any kind whatsoever which may now exist or hereafter arise, whether brought by you or on your behalf,
(collectively “Claims”). The benefit to us under this clause is for all releasees and, in this regard, we shall be deemed to be acting as agent on behalf of and for the benefit of those who are also named as releasees. To the extent permitted under Mandatory Protections, you agree to indemnify, defend, and save and hold harmless the releasees and each of them from any and all Claims.
8.6 In respect of any Claim under or in connection with these terms, you and we agree that to the maximum extent permitted by law, these terms exclude the operation of any laws which would apportion any liability to us which would not have been so apportioned but for such laws.
8.7 Each of us agrees that:
(a) this clause applies notwithstanding anything else in these terms;
(b) in this clause, “Mandatory Protections” means guarantees under the Competition and Consumer Act 2010 (Cth) Schedule 2 (the Australian Consumer Law) to the extent they apply to our supplies under these terms and their limitation or exclusion would contravene or be void, voidable or unenforceable under such Act;
(c) if there are Mandatory Protections for you in respect of our supplies under these terms, the Mandatory Protection Terms (defined in clause 9) apply to them notwithstanding anything else in these terms.
8.8 The Mandatory Protection Terms apply only in respect of the Mandatory Protections and only to the extent our supplies under these terms are not of a kind ordinarily acquired for personal, domestic or household use or consumption. They do not apply if you establish that reliance on them would not be fair and reasonable.
8.9 The “Mandatory Protection Terms” are that the parties agree that our liability for Mandatory Protections, other than the guarantees conferred by ss 51-53 of the Australian Consumer Law, is limited:
(a) in the case of goods, to any one of the following as determined by us namely the replacement of the goods or the supply of equivalent goods; or the repair of the goods; or 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; and
(b) in the case of services, to any one of the following as determined by us namely the supplying of the services again; or the payment of the cost of having the services supplied again.
8.10 The parties agree that any terms of the United Nations Convention on Contracts for the International Sale of Goods (also known as the Vienna Convention) which would, but for this clause, apply to these terms by virtue of any law are excluded.
Cancellations and Suspensions and Termination
9.1 You agree that we may refuse, suspend or cancel registration of an MSPMagic Account for any reason in our sole discretion. In connection with any cancellation, suspension or termination of your MSPMagic Service for any reason, you agree to accept sole responsibility for removing your content, including customer details and associated email addresses and passwords. You accept that removal of these details is not our responsibility.
9.2 We may terminate these terms or suspend performance of our obligations under these terms (for such period as we specify) immediately by notice in writing if we consider there are reasonable grounds to do so, for example an act or omission which a reasonable person in your position would not do or suffer, if we are unable to contact you or if we consider you may be in breach of these terms. If such termination or suspension occurs, we may (amongst other things) retain any moneys paid, charge a reasonable sum for services performed in respect of which no sum has been previously charged and be regarded as discharged from any further obligations under these terms.
9.3 You agree that on expiry or termination of these terms (including your MSPMagic Account) for any reason, all your rights in respect of the MSPMagic Service shall end.
9.4 You agree and acknowledge that we have no obligation to retain or deliver up to you any information relating to you or customers (including your content) and that all such information may be irretrievably deleted by us after 6 months from the date of any suspension, termination or expiry of these terms (including your MSPMagic Account).
We shall not be liable for any delay or failure to perform our obligations under these terms if such delay is due to circumstances beyond our reasonable control (“Force Majeure”). If a delay or failure is caused or anticipated due to Force Majeure, our obligations will be suspended. If a delay or failure by us to perform our obligations due to Force Majeure exceeds 40 business days, we may immediately terminate these terms on providing notice in writing to you. If these terms are terminated pursuant to the preceding clause, we are not liable to refund any moneys paid by you pursuant to these terms.
11.1 Each of us agrees that we are responsible for complying with our own obligations under privacy laws. This clause is in addition to, and does not relieve, remove or replace, your or our obligations or rights under privacy laws.
11.3 You agree to ensure that your customers are aware that responsibility for the management of personal information in which they have an interest is, as between those customers on the one hand and you and us on the other, your responsibility only and not that of ourselves.
These terms constitute the entire agreement between us and you and supersede all prior representations, agreements, statements and understandings, whether verbal or in writing. The benefit of these terms shall not be dealt with by you without our written consent. You agree that if you dispose of any of your business assets to which the MSPMagic Service is relevant, any use of the MSPMagic Service by the acquirer is subject to that acquirer applying for and being accepted by us to hold an MSPMagic Account, including on these terms. No right under these terms shall be deemed to be waived by you or us except by notice in writing signed by you or us case may be. A waiver by us will not prejudice our rights in respect of any subsequent breach of these terms by you. Any non-enforcement of these terms by either of us will not be construed as a waiver of rights. If any provision of these terms is held invalid, unenforceable or illegal for any reason, these terms shall remain otherwise in full force apart from such provisions which shall be deemed read down to the extent reasonably appropriate to remove the invalidity, unenforceability or illegality. You agree to comply with our reasonable requests to do such things as we reasonably request to give effect to will facilitate performance of these terms. You agree that an assignment, transfer, novation or any other dealing by us with our interests under these terms (“business transfer”) does not require your consent (prior or otherwise). Notwithstanding anything to the contrary, we may disclose such information as we consider reasonably appropriate about you or your MSPMagic Service and customers in connection with a business transfer but will use reasonable efforts to ensure that the counterparty to a business transfer accepts obligations to safeguard such of your interests, and those of your customers, as we are obliged to safeguard under these terms. These terms will be governed by and construed according to the law in force in the State of Victoria, Australia. Where these terms permit or require us to notify you (whether or not in writing) we may do so via electronic means and through a notice posted on https://mspmagic.com/ (where the notice is to several of our clients) or to the contact information in your MSPMagic Account details or via any other address we have for you. We will endeavour to give you 10 business days’ notice of circumstances we are aware may have a material adverse impact on you, but you acknowledge that there may be circumstances this is not reasonably appropriate.