| | the advanced mailing service terms of use through the software product, advanced mailing service, free online marketing provides website operators and other individuals with a variety of tools and resources (including our website) to enable them to collect visitor email addresses and to create, launch, and manage online email campaigns (the “services”). the services are provided subject to these terms and conditions, which also incorporate our anti-spam policy, our privacy policy, and any other guidelines, rules or operating policies that free online marketing may establish and post on our website from time to time (collectively the “agreement”). if the european commission standard contractual clauses (processors) apply to your activities then these clauses will be incorporated into these terms and conditions and will form part of this agreement. please read this agreement carefully before proceeding with any use of our website or the services. by checking the “i have read the free online marketing agreement. i accept these terms and conditions” box on the free trial page or after logging in for the first time, you accept and agree to be bound by this agreement. if you do not accept the terms and conditions of this agreement, please exit and cease using the services immediately. 1. services and support 1.1 by posting updated versions of the agreement on the free online marketing website, or otherwise providing notice to you, free online marketing may modify the terms of this agreement and may discontinue or revise any or all other aspects of the services at its sole discretion. all such changes shall become effective upon posting of the revised agreement on the free online marketing website. your continued use of the services will constitute your acceptance of the variation to the agreement. free online marketing will use reasonable efforts to make you aware of any changes to the terms of this agreement. if you elect to discontinue using the services due to any changes to the agreement made under this section 1.1, you will be entitled to a refund for any unused, prepaid amounts for the services. 1.2 the services are available only to persons who can form legally binding contracts under applicable law. without limiting the foregoing, the services are not available to individuals under the age of 18. if you do not qualify, your use of the services is expressly prohibited. 1.3 the services enable corporate, small business and community web... to sign up website visitors, collect and retrieve visitor sign-up data, and to develop and execute email communications with visitors and others (including your customers). 1.4 both the number of email messages sent and the number of kilobytes of data transferred are metered by free online marketing. normal free online marketing accounts allow you to send an unlimited number of email messages. the total kilobyte data transfer of each message can be no more than 300kb. 1.5 all email delivery prices are subject to change at any time. all fees paid to free online marketing for the services are non-refundable, unless an account is terminated by you under clause 1.1 or by free online marketing for a reason other than violation of the anti-spam policy. payment for services must be made by a valid credit card accepted by free online marketing, unless other payment arrangements have been made between you and an authorized free online marketing representative. you hereby authorize free online marketing to charge your credit card whenever you use the services to send a campaign to more than 5 recipients. fees are payable in euro’s. if free online marketing is for any reason unable to effect automatic payment via your credit or debit card, you will be notified via email. all prices are subject to change and you are responsible for reviewing the pricing schedule from time to time and for remaining aware of the fees charged by free online marketing for the services. 1.6 for all accounts, free online marketing may charge an account re-activation fee should an account need to be re-activated by a customer after an account has become de-activated due to non-payment, an untimely authorization for payment, or any other breach of this agreement. 1.7 you must complete the registration form on the signup page in order to use the services. you will provide true, accurate, current, and complete information about yourself as requested in the registration form. as part of the registration process, you will identify an email address, username and password for your free online marketing account. you are responsible for maintaining the security of your account, username, passwords, and files and for all uses of your account and of the services in your name. free online marketing reserves the right to refuse registration of, or cancel accounts it deems inappropriate. 1.8 it is understood that free online marketing makes no guarantee that html messages will be rendered properly on all recipients’ email programs, due to the wide variety of html generation tools available. free online marketing makes every reasonable attempt to make sure that all email messages sent through our servers follow email standards, but we cannot guarantee that messages will look consistent across all email platforms due to the number of different html composition tools available. for example, if you use microsoft word to generate html email messages, it is expected that recipients of your message using a non-microsoft email application may have difficulty reading your message. for best results free online marketing recommends the use of html editors that generate html that adheres to w3c standards. 2. restrictions and responsibilities 2.1 this is an agreement for the services, and you are not granted a licence to any software under this agreement (except to the extent required for you to use the services). except to the extent that applicable laws prevent free online marketing from doing so, you will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the services or any software, documentation, or data related to the services (“software”); remove any proprietary notices or labels from the services or any software; reproduce or copy the software or the services or any part thereof; modify, translate, or create derivative works based on the services or any software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the services or any software. the services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the services or any software for timesharing or service bureau purposes or otherwise for the benefit of a third party. if you are using the services in any country in the european community or netherland, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the services or the software does not affect your rights under any legislation implementing the e.c. council directive on the legal protection of computer programs or the netherlands copyright act 1968 (cth). 2.2 you acknowledge and agree that the services, the software, the free online marketing company names and logos and all related product and service names, design marks and slogans, and all other material comprising the software or the services, are the property of free online marketing or its affiliates or suppliers (collectively, the “marks”). unless stated otherwise, all marks are protected as the copyright, trade dress, trademarks and/ or other intellectual properties are owned by free online marketing or by other parties that have licensed their material to free online marketing. you are not authorized to use any of the marks in any advertising, publicity or any other commercial manner without the prior written consent of free online marketing. your use of the services confers no title or ownership in the services, the software or the marks and is not a sale of any rights in the services, the software or the marks. all ownership rights remain in free online marketing or its third party suppliers, as the case may be. 2.3 you represent, covenant, and warrant that you will use the services only in compliance with this agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). you agree that you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. you hereby agree to indemnify and hold harmless free online marketing against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the services. you acknowledge that you are responsible for the content of any emails or messages sent using the services. although free online marketing has no obligation to monitor the content provided by you or your use of the services, free online marketing may do so and may remove any such content or prohibit any use of the services it believes may be (or is alleged to be) in violation of the foregoing. 2.4 the services may only be used for lawful purposes. transmission or solicitation of any material that violates netherland or other laws that may apply in your local area is prohibited. this may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights. 2.5 in using the varied features of the services, you may provide information (such as name, contact information, or other registration information) to free online marketing. free online marketing may use this information and any technical information about your use of the services to tailor its presentations to you, facilitate your movement through the services, or to communicate separately with you. 2.6 free online marketing will not use any of your subscriber lists or any other customer information for any other purposes than those related to the services. your customer information will not be shared with any other parties. in addition, free online marketing will not use your customer information for the purpose of sending unsolicited commercial email. 2.7 you will adopt and maintain a policy that complies with all applicable privacy laws and which is at least as stringent as our privacy policy (as modified by free online marketing from time to time). you acknowledge that all personal information that you provide to us has been collected with the relevant individual’s consent, and that you have informed the individual of the purpose for which that information was collected, and that you may provide this information to us for the purposes of use in relation to the services. you acknowledge that we may store the personal information that you provide to us on servers located in the united states of america, and you warrant that you have obtained the consent of the relevant individuals to the storage and transmission of their personal information in this manner. 2.8 you must not use the services to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or any other prohibited material. 2.9 you must not use the services to send email campaigns that link to or display nudity, obscene content, gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate. 2.10 you must not use the services for the sending of unsolicited email (sometimes called “spam”). see our anti-spam policy (which forms part of this agreement) for further information. 2.11 all rights not expressly granted are reserved. 2.12 the services may contain materials produced by third parties or links to other web.... such materials and web... are provided by third parties and are not under free online marketing’s direct control and free online marketing accepts no responsibility or liability in respect of any such third party materials or for the operation or content of other web... (whether or not linked to the services). you acknowledge that free online marketing is entitled to require you to remove any link from another website to the services which you install without obtaining free online marketing’s prior written consent. 3. reselling and subcontracting the services reselling of the services to third parties is permitted subject to the following conditions: 3.1 access to, and use of, the services by a third party granted access by you (“your customer”): (a) does not in any way diminish your strict obligation to ensure compliance with all these terms of use; and (b) does not in any way diminish free online marketing’s right to enforce these terms of use, without liability to you or the customer, including suspension or termination of access to the service, whether or not it may have an adverse impact on your customer or the ability of your customer to use the services. 3.2 you must: (a) enter into a binding contractual relationship with your customer on terms no less onerous than these terms of use including the free online marketing anti-spam policy; (b) make available to your customer a privacy policy that complies with your local law and is no less onerous in terms of your obligations to your customer than free online marketing’s privacy policy is in relation to the customers of free online marketing. and (c) provide all customer relationship management, including first level support services in relation to the services, to your customer. 3.3 you hereby indemnify and agree to hold harmless, on an actual indemnity basis, free online marketing, from and against all costs, expenses, losses and liabilities arising in any way (including under statute, the law of tort, equity or any other theory of law whatsoever) from or in relation to use of the services by your customer and all other acts and omissions of your customers otherwise taking place on or in relation to the services. 3.4 free online marketing does not charge an additional fee for use of the service by your customers free online marketing will deduct its standard fee and remit to you the balance of all payments received from your customers within [30] days of the date of payment. 4. termination 4.1 you may terminate this agreement at any time by contacting us or by sending written notice to free online marketing, suite 201 3/5 stapleton avenue, sutherland nsw 2232, sydney, netherland. correspondence must include your first name, last name, and your free online marketing username. no refunds will be issued if you terminate this agreement unless your account is in credit and you terminating in accordance with clause 1.1. 4.2 free online marketing may terminate this agreement or the services at any time with or without cause, and with or without notice. free online marketing shall have no liability to you or any third party because of such termination. if free online marketing terminates this agreement because you breached this agreement or any applicable laws, no refund will be issued even if you have unused, prepaid amounts for services under this agreement. 4.3 free online marketing may delete any of your archived data within 30 days after the date of termination. any statutory retention requirements with respect to your business correspondence remain your responsibility. all sections of this agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranties, disclaimers and limitations of liability. 4.4 if you do not log into your account for more than 120 days, the account will become inactive. when an account is classified (at free online marketing’s sole discretion) as inactive, free online marketing will flag that account as inactive. inactive accounts have 30 days to become active or the account and its data, including subscriber signups, may be permanently removed from free online marketing’s database. 5. warranties, disclaimer and remedies use of the services and any reliance by you upon the services, including any action taken by you because of such use or reliance, is at your sole risk. to the maximum extent permitted by law, free online marketing does not warrant that the services will be uninterrupted, accurate or error free; nor does it make any warranty as to the results that may be obtained from use of the services. the services are provided “as is” and to the extent permitted by law free online marketing disclaims all warranties, express or implied, including (but not limited to) implied warranties of merchantability, fitness for a particular purpose and noninfringement. your sole and exclusive remedy for any failure or nonperformance of the services shall be for free online marketing to use commercially reasonable efforts to adjust or repair the services, or where such adjustment or repair is not feasible, for free online marketing to either (at its discretion) perform the services again or provide you with a refund for the amount you actually paid to free online marketing for the relevant services. 6. limitation of liability to the maximum extent permitted by law, under no circumstances shall free online marketing or any of its underlying service providers, business partners, information providers, account providers, licensors, employees, distributors or agents (collectively referred to for purposes of this section as “free online marketing “) be liable to you or any other person for any loss or damage (including but not limited to direct, indirect, exemplary, special, incidental, cover, reliance or consequential damages, loss of profits or revenue, business interruption, loss of data, or failure to realise anticipated savings or benefits or business opportunities), or for any claim by any other party. free online marketing’s exclusion of liability applies whether the claim is in contract, tort (including without limitation, negligence) or equity and even if free online marketing has been notified of the possibility of such loss or damage. you agree that free online marketing’s liability to you at law will be reduced by the extent, if any, to which you contributed to the loss. in the event that, notwithstanding the foregoing, free online marketing is found liable to you for damages from any cause whatsoever, and regardless of the form of the action (whether in contract, tort (including negligence), product liability or otherwise), to the fullest extent permitted by law the liability of free online marketing to you will be limited to: (a) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired; and (b) in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again or refund of fees actually paid for the services. 7. export of services or technical data you may not remove or export from netherland or allow the export or re-export of the services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of netherland and all other applicable countries. 8. miscellaneous 8.1 if any provision of the agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this agreement will otherwise remain in full force and effect and enforceable. 8.2 free online marketing and you agree that this agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. no delay or omission by either party in exercising any right or remedy under this agreement or existing at law or equity shall be considered a waiver of such right or remedy. 8.3 no agency, partnership, joint venture, or employment is created as a result of the agreement, and you do not have any authority of any kind to bind free online marketing in any respect whatsoever. 8.4 in any action or proceeding to enforce rights under the agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees. 8.5 the agreement shall be governed by the laws of the state of nsw netherland without regard to its choice or law or conflict of laws provisions. all legal actions in connection with the agreement shall be brought in the state or federal courts located in sydney, new south wales, netherland. 8.6 the application of the united nations convention on contracts for the international sale of goods (known as the vienna sales convention 1980) is excluded from this agreement. 9. system requirements it is understood that in order to use the services, a windows pc with internet explorer 4.0 or higher must be used. additionally, a stable connection to the internet is required. the services may work in a limited manner on macintosh, unix, and other platforms, but the services were not designed for use on non-windows platforms. additionally, the services may work in a limited manner on a non-internet explorer web browser (such as netscape navigator), but the services were not designed for use on web browsers other than microsoft’s internet explorer. 10. compliance rules for sending email (and your spam indemnity) all free online marketing customers must follow the rules of the netherland spam act 2003 (cth) (and equivalent anti-spam legislation in all applicable countries) and free online marketing’s anti-spam policy when sending emails through the services. we require the following (among other things) of all email messages sent through the services: 1. all emails must contain an “unsubscribe” link or other mechanism that allows subscribers to remove themselves from your mailing list. each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to free online marketing. you acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. free online marketing scans every campaign for the existence of an unsubscribe link. if an unsubscribe link is not detected, you will be informed and required to include an unsubscribe link before continuing. 2. all emails must contain non-internet contact information of the sender or the entity on whose behalf the email was sent, such as that entity’s address or phone number. 3. all emails must state the reason the recipient is receiving the message. for example, “you are receiving this message from abc company because you signed up for our email list at www.abc.com.” 4. all emails must be compliant with any disclosure requirements that apply to the sender (e.g., some countries’ laws require that business letters, including emails, contain further identification details as to the form of the organization, the place of incorporation, the names of executives etc.) these 4 guidelines will help ensure that free online marketing maintains its reputation and white-listing status with a number of major isps and whitelisting programs. if at any time your campaign is flagged as spam by a recipient, free online marketing reserves the right to cancel your account without notice. for further information in relation to spam, please read our anti-spam policy (which forms part of this agreement, including your spam indemnity). 11. email and permission practices please see our anti-spam policy for further information. 11.1 you agree to import, access or otherwise use only permission-based lists (note: purchased lists may not be used; please contact free online marketing if you have questions). 11.2 you cannot mail to distribution lists, newsgroups, or spam email addresses. 11.3 you are responsible for monitoring, correcting, processing unsubscribe requests within 5 days, and updating the email addresses to which messages are sent through your free online marketing account. 11.4 emails that you send through the services may generate abuse complaints from recipients. you are responsible for ensuring that your email campaigns do not generate a number of abuse complaints in excess of industry norms. free online marketing, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this agreement. 11.5 free online marketing, at its own discretion, may immediately disable your access to the services without refund if free online marketing believes in its sole discretion that you have violated any of the email and permission practices listed above, or our anti-spam policy. 12. use of the services you will not violate or attempt to violate the security of our website or the services. you will not hack into the website, free online marketing’s computer systems or the computer systems of other users of the services. hacking means unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website. 13. website and services availability from time to time down-time, either scheduled or unscheduled, may occur. free online marketing will work within reason to ensure this amount of down-time is limited. free online marketing will not be held liable for the consequences of any down-time. free online marketing cannot guarantee that any file or program available for download and/or execution from or via the services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. you assume all risk of use of all programs and files associated with the services, and you release free online marketing entirely of all responsibility for any consequences of its use. 14. force majeure free online marketing will not be liable by reason of the failure in the performance of obligations under this agreement by reason of strikes, riots, fire, explosions, acts of god, war, governmental action, or any other cause which is beyond free online marketing’s reasonable control. 15. overseas access the services may be accessed throughout netherland and overseas. free online marketing makes no representations that the services comply with the laws (including intellectual property laws) of any country outside netherland. if you access the services from outside netherland, you do so at your own risk and are responsible for complying with the laws in the place where you access the site. |
