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
The Services are provided subject to these terms and conditions, which also
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
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 websites 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
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
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
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
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 websites.
Such materials and websites 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 websites (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
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
(b) does not in any way diminish Free Online Marketing’s right to enforce
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
3.2 You must:
(a) enter into a binding contractual relationship with Your Customer on
Marketing Anti-Spam Policy;
your local law and is no less onerous in terms of your obligations to Your
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  Days of the date of
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
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
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
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.
8.1 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
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
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
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
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
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
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