1. Services and Support
1.1 The Services are provided subject to this Agreement, as it may be amended by EmailOut, and any guidelines, rules or operating policies that EmailOut may establish and post from time to time (the “Agreement”). By posting updated versions of the Agreement at the EmailOut web site, or otherwise providing notice to you, EmailOut may modify the terms of the 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 Service.
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, please do not use the Services.
1.3 The Services enable corporate web sites, small business web sites, and community sites to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute e-mail communications with visitors and other targeted prospects.
1.4 Both the number of e-mail messages sent and the number of KiloBytes of data transferred are metered by EmailOut. Normal EmailOut accounts allow you to send an unlimited number of e-mail messages. The total KiloByte data transfer of each message can be no more than 100kb.
1.5 All email delivery prices are subject to change at any time. All fees paid to EmailOut for EmailOut are non-refundable, unless an account is terminated by EmailOut for a reason other than violation of the Anti-Spam Policy. Payment for Services will be made by a valid credit card accepted by EmailOut, unless other payment arrangements have been made between you and an authorized EmailOut representative. You hereby authorize EmailOut to charge your credit card for such amounts whenever you send a campaign to more than 5 recipients. Fees are payable in US dollars or Australian dollars. If EmailOut is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail. All prices are subject to change and you are responsible for reviewing the Pricing Schedule from time to time and remaining aware of the Fees charged by EmailOut.
1.6 For all accounts, EmailOut may charge an account re-activation fee should an account need to be re-activated by customer after an account has become de-activated due to non-payment or an untimely authorization for payment.
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 e-mail address and password for your EmailOut account. You are responsible for maintaining the security of your account, passwords, and files, and for all uses of your account and of the Services in your name. EmailOut reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
1.8 It is understood that EmailOut makes no guarantee that HTML messages will be rendered properly on all recipients’ e-mail programs, due to the wide variety of HTML generation tools available. EmailOut makes every attempt to make sure that all e-mail messages sent through our servers follow e-mail standards, but we cannot guarantee that messages will look consistent across all e-mail platforms due to the number of different HTML composition tools available. For example, if you use Microsoft Word to generate HTML e-mail messages, it is expected that recipients of your message using a non-Microsoft e-mail application may have difficulty reading your message. For best results EmailOut recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards.
2. Restrictions and Responsibilities
2.1 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. 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, 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, 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.
2.2 You acknowledge and agree that the Services and the EmailOut company names and logos and all related product and service names, design marks and slogans, are the property of EmailOut or its affiliates or suppliers (collectively, the “Marks”). 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 EmailOut. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in EmailOut 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 the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party. You hereby agree to indemnify and hold harmless EmailOut 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. Although EmailOut has no obligation to monitor the content provided by you or your use of the Services, EmailOut 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 Australian federal, state 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 EmailOut. EmailOut 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 Service, or communicate separately with you.
2.6 EmailOut will not use any of your subscriber lists or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties. In addition, EmailOut will not use your customer information for the purpose of sending unsolicited commercial e-mail.
2.8 You may not use EmailOut to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns
2.9 You may not use EmailOut 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.
3.1 You may terminate this Agreement at any time by sending an e-mail message to [email protected] Correspondence must include your first name, last name, and EmailOut username. No refunds will be issued if you terminate this agreement.
3.2 EmailOut may terminate this Agreement or the Services at any time with or without cause, and with or without notice. EmailOut shall have no liability to you or any third party because of such termination. If EmailOut terminates this agreement because you violated the Anti-Spam policy, no refund will be issued.
3.3 EmailOut may delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
3.4 If you do not log into your account for more than 120 days, the account will become inactive. When an account is classified (at EmailOut’s sole discretion) as inactive, EmailOut 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 THE EmailOut DATABASE.
4. Warranty Disclaimer; 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. EmailOut DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED 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 EmailOut 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 EmailOut to use commercially reasonable efforts to adjust or repair the Services.
5. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL EmailOut 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 “EmailOut “) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF EmailOut SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, EmailOut 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), THE LIABILITY OF EmailOut TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
6. Export of Services or Technical Data
You may not remove or export from Australia 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 Australia or any other applicable country.
7.1 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.
7.2 EmailOut and you agree that the 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.
7.3 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 EmailOut in any respect whatsoever.
7.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
7.5 The Agreement shall be governed by the laws of the State of Victoria Australia 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, Australia.
8. System Requirements
It is understood that in order to use EmailOut, a Windows PC with Internet Explorer 4.0 or higher must be used. Additionally, a stable connection to the Internet is required. EmailOut may work in a limited manner on Macintosh, Unix, and other platforms, but there is no guarantee of functionality on non-Windows platforms. Additionally, EmailOut may work in a limited manner on a non-Internet Explorer web browser (such as Netscape Navigator), but there is no guarantee of full functionality on web browsers other than Microsoft’s Internet Explorer.
9. Compliance rules for sending e-mail
All EmailOut customers must follow the rules of the federal CAN-SPAM act and EmailOut’s Anti-Spam policy when sending e-mail through the service. Accordingly, we require the following of e-mail messages sent through the EmailOut system:
All e-mails must contain a one-click unsubscribe link as provided by the EmailOut service. EmailOut scans every campaign for the existance of an unsubscribe link. If an unsubscribe link is not detected, the user is informed and is required to include an unsubscribe link before continuing.
All e-mails must contain non-Internet contact information of the sender, such as your company’s address, or your company’s phone number.
All e-mails 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 e-mail list at www.abc.com.”
These 3 guidelines will help ensure that EmailOut 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 an AOL recipient, EmailOut reserves the right to cancel your account without notice.
10. Email and Permission Practices
10.1 Every email message sent in connection with the Services 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 EmailOut. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link.
10.2 You agree to import, access or otherwise use only permission-based lists (note: purchased lists may not be used; please contact EmailOut if you have questions).
10.3 You cannot mail to distribution lists, newsgroups, or spam email addresses.
10.4 You are responsible for monitoring, correcting, processing unsubscribe requests within 10 days, and updating the email addresses to which messages are sent through your EmailOut account.
10.5 Emails that you send through the Service 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. EmailOut, 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.
10.6 EmailOut, at its own discretion, may immediately disable your access without refund to the Services if EmailOut believes in its sole discretion that you have violated any of the email and permission practices listed above, or the EmailOut Anti-Spam Policy.