These Terms and Conditions (Agreement) are a legal agreement that governs your use of the services/products provided by Email Marketing and its parent companies (Services). By applying, using, or continuing the use of the Services, you indicate, acknowledge, and agree to be bound by the terms and conditions of this agreement. This Agreement does not cover services/products individually supplied by resellers and only covers services/products supplied by Email Marketing and its parent companies (Services).
We may provide Services directly or via a third party. Third-party services may be subject to specific agreements as supplied by them. By applying or using any Service offered by us you must agree to this Agreement and any agreement of our third-party suppliers.
It is your responsibility to ensure that any applied Email Marketing package application is completed and activated ready for full use. Quoted times for account activation are estimates, and we do not guarantee or imply activation within the quoted time frame. We may delay or refuse activation if:
- Payment is not cleared or received in full.
- We believe the order, information, or payment is fraudulent.
- You have any funds outstanding with relation to any other account.
- The domain name quoted does not exist, is in a non-usable state (e.g., pending renew) or is deemed to be proposed for use that voids any other held policy.
- There is any other reason which we deem satisfactory.
We may send notification of account activation, however:
- Your contact details must be correct and up to date.
- This is not the final word that your hosting is fully active and ready for use. You must ensure the hosting is fully functional.
You release us of any claim arising from failed account activation whether at the fault of our system, our staff, or any other factor out of our reasonable control.
25.2 Loss of Service
We will endeavour to maintain network stability and satisfactory service levels, however:
- We may, from time to time, perform routine maintenance, service, and upgrades. We will endeavour to act on such instances at the most convenient times and provide reasonable notice by any means we deem satisfactory.
- We may experience outages beyond our control caused by any of the following: force majeure (any 'act of god' including those induced by negative human activities), war, invasion, the act of hostilities, civil war, rebellion, military power or confiscation, terrorist activities, nationalism, governmental/quasi-governmental sanction, restraint, embargo, prohibition or intervention, blockage, labour dispute, general strike, lockout or failure of utilities (electricity, telephone, etc.), failure of hardware (our hardware as well as third party), failure of software, failed software or hardware upgrade or any other failure as caused by Email Marketing, our suppliers or any third party.
- We may provide notification of outages at our discretion, whether planned or unplanned.
- You release us from any claim or potential claim in relation to outages and any loss of business/service suffered by you or any third party.
If any payment due from you to us is not received by the due date, you authorise us to directly debit that payment using the credit card account details provided by you upon registration.
We are entitled to recover (on a full indemnity basis) any costs, fees and charges (including legal cost) incurred in recovering any amounts owing by you to Email Marketing. Without limitation to the above, we may charge an administration fee of US$ 50.00 for any dishonoured cheques.
All transactions are encrypted with SSL 256bit for transmission across the internet. Payment details are stored in the database encrypted with AES 256-bit encryption.
You acknowledge that we reserve the right to suspend services immediately without notice should we not receive renewal payment prior to the date of expiry. We may provide a 30-day grace period whereby we will hold your information and data on our servers. Should this period expire without payment, we reserve the right to purge all data pertaining to your account with us.
25.4 Suspension and cancellation
- You have any outstanding invoices or accounts.
- Your account is in dispute or dispute resolutions procedure, court order, judgement, findings or determination.
- You fail to comply with any provision in this agreement or those referenced in this agreement.
- There is evidence of fraudulent, illegal, defamatory, offensive activities, or any activity in breach of a third party's rights.
- We deem your use of our services may jeopardize the operation of the service, Email Marketing, or our suppliers.
- We deem any other reason as satisfactory to protect Email Marketing, our staff, and/or our suppliers.
- We may suspend your account without notice if your email bounce rate exceeds 10%. High bounce rates risk the Email Marketing system for all customers and will not be tolerated.
Any suspension cancellation or termination is subject to our Refunds Policy. If your account is cancelled under this agreement:
- You must pay all outstanding charges to us immediately.
- We may revoke/terminate any license issued to or by you in relation to the services as of the date of cancellation.
- We may immediately delete all data held prior to cancellation.
- We may perform any action without notice.
25.5 Acceptable use policy
It is your responsibility at all times to:
- Use our service and services in a manner that does not violate any applicable laws or regulations.
- Respect the conventions of the newsgroups, lists, and networks that you use.
- Respect the legal protection afforded by copyright, trademarks, license rights, and other laws to materials accessible via our service.
- Respect the privacy of others.
- Use the service in a manner that does not interfere with or disrupt other network users, services, or equipment.
- Refrain from acts that waste resources or prevent other users from receiving the full benefit of our services.
- Ensure your use of our services remains ethical and in accordance with accepted community standards.
You must at all times comply with the law. You will be in breach of this policy in violation of state, federal, or international laws. It is not acceptable to use our service(s) to:
- Violate copyright or other intellectual property rights.
- Illegally store, use or distribute software; transmit threatening, obscene, or offensive materials.
- Engage in electronic 'stalking' or other forms of harassment such as using abusive or aggressive language.
- Misrepresent or defame others.
- Commit fraud.
- Gain unauthorised access to any computing, information, or communications devices or resources, including but not limited to any machines accessible via the Internet.
- Damage, modify or destroy the files, data, passwords, devices or resources of Email Marketing, other users, or third parties.
- Engage in misleading or deceptive online marketing practices.
- Conduct any business or activity or solicit the performance of any activity that is prohibited by law.
- Make an unauthorised transmission of confidential information or material protected by trade secrets.
- "Spam" or engage in "spamming" activities.
- Engage obscene speech or materials. These include, advertising, transmitting, storing, posting, displaying, or otherwise making available; child pornography, offensive sexual content, or materials or any other obscene speech or material.
- Post or transmit defamatory, harassing, abusive or threatening language.
- Create, distribute or provide information/data regarding internet viruses, worms, Trojan horses, pinging, flooding, mail-bombing, or denial of service attacks.
- Facilitating a Violation of this Acceptable Use Policy.
- Perform any other action through the utilization of any service which we deem unsatisfactory.
- Attempt to do any of the above.
You also agree not to attempt any of the following:
- Use 25% or more of system resources for longer than 90 seconds.
- Any activity which causes the server to crash/restart.
- Exceed the maximum of 100-kilobyte data transfer of each message.
- Utilise the Email Marketing service for display or link of nudity, obscene content, gambling-related content, pharmaceutical-related content, illegal software, viruses, or any other content we deem inappropriate.
- It is unacceptable to delete and then upload new contacts lists with the same recipients on a regular basis. Any attempts to delete contact lists or modify lists in order to evade billing thresholds will amount to an abuse of the Email Marketing service. In addition to causing undue load on our servers, such actions will result in the deletion of contact history (including unsubscribes, abuse complaints, and bounces). This results in contacts being reverted to your mailing list, which contravenes other acceptable use clauses. Any such action can result in immediate suspension or termination of your services as per this agreement.
You acknowledge and agree that you are limited to sending one hundred thousand (100,000) emails per month as a security protection. This limit will refresh after the end of the month. Any requirements to send emails above these limits contact our customer care specialist.
You agree that we may disclose information relating to your account and use of services at our discretion and by order of any law enforcement agency. We may also report any action we find in breach of this Agreement, local, state, federal or international laws and cannot be held liable for any outcome resulting in our actions. Any breach of our Acceptable Use Policy can result in immediate termination of Services and loss of all data held on provided services. You release us, our staff, and our suppliers of any liability resulting in such instances.
Use of Email Marketing is fully governed by our Anti-Spam policy, as well as any policy referenced within any Email Marketing published policy. You agree that Email Marketing reserves the right to suspend or terminate any service in breach of policies, whether held directly by Email Marketing or through referenced third parties.
25.6 Refunds Policy
Email Marketing does not have any provision for refund or credits. Unused accounts or subscriptions will not be eligible for refund or credit. In accordance with all policies held and referenced, Email Marketing will not provide a refund or credit for any account suspended or terminated for breach.
Fees are to be paid in full. Email Marketing plans specify the number of subscribers held; this includes subscribers placed in Do Not Send list, bounced or rejected email addresses. No refund or credit provision will be made for subscribers who do not receive communication in their inboxes. It is your responsibility to ensure your subscriber list is up to date and that full potential is made of allocated subscriber listings.
25.7 Liability and indemnity
You agree that we shall have no liability to you or any other person with respect to any loss of service, data, business, indirect, incidental, consequential, special, exemplary or punitive damages, including loss of profit/goodwill for any matter whether such liability is asserted on the basis of contract, tort, breach of warranties either expressed or implied.
You agree to defend, indemnify, save and hold us, our staff, and suppliers from any and all demands, liabilities, losses, costs, and claims, including reasonable legal fees asserted against us, our agents, our clients, our offices, and employees, that may arise or result from any service provided, performed or agreed to be performed or any product sold by a customer, their agents, and employees.
You agree to defend, indemnify, and hold us harmless against liabilities arising out of:
- Any injury to a person or property caused by any products sold or otherwise distributed in connection with Email Marketing.
- Any material supplied by the customer infringing or allegedly infringing on the proprietary rights, legal, and/or civil rights of a third party.
- Any breach of any representation or warranty provided herein.
- Any negligence or wilful misconduct by you.
- Any allegation that your account infringes a third person's copyright, trademark, or intellectual property right, or misappropriates a third person's trade secrets.
- Any defective products sold to customers from our server.
By accessing any service hosted on our network you understand, agree, and are bound to this indemnification and any other indemnification mentioned in our service agreement and agreements referenced therein. Should we be notified of pending legal action or intention to seek legal advice, we may seek written confirmation from you concerning your obligation to indemnify Email Marketing.
Failure to provide such confirmation may be considered a breach of this agreement. We cannot be held responsible for any damages your business/operation may suffer. We provide no warranties, expressed or implied, for the service we provide. Nor do we guarantee your website or applications will be error-free on our servers. We are not responsible for loss of data resulting from delays, software incompatibility, hardware or software issues, outages, failed deliveries, and any service interruption caused by Email Marketing, our employees, or our suppliers. Should any part of this policy be made invalid by relevant legislation, the remainder of the policy shall remain in force.