Terms and Conditions for SmartEmails Software and Services
This Agreement (“Agreement”) is by and between Gladnet Pty Ltd t/as Smart Emails (Smart Emails) as a Victorian Company registered with the Australian Securities & Investments Commission and you, your heirs, agents, successors and assigns (“You”), and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of SmartEmails software (“Software”) and services (“Services”) and explains SmartEmails obligations to You and Your obligations to SmartEmails in relation to the Software and Services You purchase.
This Agreement as well as any additional SmartEmails policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and SmartEmails concerning Your use of SmartEmails Software and Services, and supersede and govern all prior proposals, agreements, or other communications. All SmartEmails policies and agreements specific to particular Software and Service are incorporated herein and made part of this Agreement by reference, including the Acceptable Use Policy (“AUP”). By purchasing SmartEmails Software or Services, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which SmartEmails may establish from time to time, and any agreements that SmartEmails is currently bound by or will be bound by in the future.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You’ve established with SmartEmails, whether or not the transactions were in Your behalf. You acknowledge that SmartEmails acceptance of any application made by You for Services provided by SmartEmails will take place at SmartEmails registered offices located in Seaford, Victoria, Australia.
The General Terms in Section A apply to all customers of SmartEmails. The Software and Services Specific Agreements incorporated in Section B apply only to customers who have purchased those referenced Services.
You agree that SmartEmails may modify this Agreement and the Services from time to time. You agree to be bound by any changes SmartEmails may reasonably make to this Agreement when such changes are made. If You have purchased Services or Software from SmartEmails, the term of this Agreement shall continue in full force and effect as long as You take advantage of and use the Software or Services. In the event You terminate Your usage, SmartEmails any amounts You have paid. You agree that SmartEmails shall not be bound by any representations made by third parties who You may use to purchase Services from SmartEmails, and that any statement of a general nature, which may be posted on SmartEmails Web site or contained in SmartEmails promotional materials, will not bind SmartEmails. SmartEmails may offer certain promotions with different charges and features.
You agree that You will be responsible for notifying SmartEmails should You desire to terminate Your use of SmartEmails Services. Notification of Your intent to terminate must be provided to SmartEmails no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date.
You agree to maintain accurate information by providing updates to SmartEmails, as needed, while You are using SmartEmails Services. You agree You will notify SmartEmails within five (5) business days when any change of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by SmartEmails to determine the validity of information provided by You will constitute a material breach of this Agreement.
You agree You are entirely responsible for maintaining the confidentiality of Your customer number/email login, password and credit card number (collectively, the “Account Access Information”). You agree You are entirely responsible for any and all activities that occur under Your account. You agree to notify SmartEmails immediately of any unauthorised use of Your account or any other breach of security. You agree SmartEmails will not be liable for any loss that You may incur as a result of someone else using Your Account Access Information, either with or without Your knowledge. You further agree You could be held liable for losses incurred by SmartEmails or another party due to someone else using Your Account Access Information. For security purposes, You should keep Account Access Information in a secure location and take precautions to prevent others from gaining access to Your Account Access Information. You agree that You will be responsible for all activity in Your account, whether initiated by You, or by others on Your behalf, or by any other means. SmartEmails specifically disclaims liability for any activity in Your account, whether authorised by You or not.
As a condition of Your use of SmartEmails Software and Services, You agree not to use them for any purpose that is unlawful or prohibited by these terms and conditions, and You agree to comply with any applicable local, state, federal and international laws, government rules or requirements. You agree You will not be entitled to a refund of any fees paid to SmartEmails if, for any reason, SmartEmails takes corrective action with respect to Your improper or illegal use of its Services.
SmartEmails reserves the right at all times to disclose any information as SmartEmails try to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in SmartEmails sole discretion.
If You have purchased Services, SmartEmails has no obligation to monitor Your use of the Services. SmartEmails reserves the right to review Your use of the Services and to cancel the Services in its sole discretion. SmartEmails reserves the right to terminate Your access to the Services at any time, without notice, for any reason whatsoever.
SmartEmails reserves the right to terminate Services if Your usage of the Services results in, or is the subject of, legal action or threatened legal action, against SmartEmails or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.
Except as set forth below, SmartEmails may also cancel Your use of the Services, if You are using the Services, as determined by SmartEmails in its sole discretion, in association with spam or morally objectionable activities. Morally objectionable activities will include, but not be limited to: activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of Australia and/or foreign territories in which You conduct business; activities designed to encourage unlawful behaviour by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; illegal access to other computers or networks (i.e., hacking); distribution of Internet viruses or similar destructive activities; and activities designed to harm or use unethically minors in any way. In the event SmartEmails deletes Your Services because they are being used in association with spam or morally objectionable activities, no refund will be issued. You agree You will not be entitled to a refund of any fees paid to SmartEmails if, for any reason, SmartEmails takes corrective action with respect to Your improper or illegal use of its Services.
You agree SmartEmails may immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition, if actual damages cannot be reasonably calculated then You agree to pay SmartEmails liquidated damages of $1 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with Your account, otherwise You agree to pay SmartEmails actual damages.
You agree that SmartEmails or its licensor holds all rights, title and interest in all Software and Services and all intellectual property, including other rights related to intangible property, unless otherwise indicated. You acknowledge that no title or interest in such Intellectual Property Rights is being transferred to You and You agree to make no claim of interest in any such Services or Software.
You understand and agree that all content and materials contained in this Agreement, other policies, the SmartEmails website, and any affiliated websites, are protected by the various copyright, patent, trademark, service mark and trade secret laws of Australia, as well as any other applicable proprietary rights and laws, and that SmartEmails or its licensor expressly reserves its rights in and to all such content and materials. You further understand and agree that You are prohibited from using, in any manner whatsoever, any of the content or materials described above without the express written permission of SmartEmails or its licensor. No licence or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to You or conferred upon You by this Agreement or otherwise.
If You have licensed software from SmartEmails, SmartEmails grants You a limited, non-exclusive, non transferable and non-assignable license to use the software for such purposes as are ordinary and customary. You are free to use the software on any computer, but not on two or more computers at one time.
You agree to not alter or modify the Software. You agree You are not authorised to combine the Software with any other software program, create derivative works based upon the Software, nor are You authorised to integrate any plug-in or enhancement which uses or relies upon the Software. You further agree not to reverse engineer, decompile or otherwise attempt to uncover the source code.
SmartEmails and its licensors reserve all rights to the Software. The Software and any copies You are authorised to make are the intellectual property of SmartEmails and its licensors. The source code and its organisation are the exclusive property of SmartEmails and its licensors, and the Software is protected by copyright, including Australian Copyright Law. Except as expressly provided for in this section, this Agreement does not grant You any rights in the Software and all rights are reserved by SmartEmails.
SMARTEMAILS PROVIDES THIS SOFTWARE “AS IS” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
As consideration for the Software or Services purchased by You and provided to You by SmartEmails, You agree to pay SmartEmails at the time You order. All fees are due immediately and are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term. SmartEmails expressly reserves the right to modify pricing through email notification and/or notice on its Web site. Payment may be made by You by providing either a valid credit card, or if applicable a sufficiently funded PayPal account (collectively, the “Payment Method”). Your Payment Method on file must be kept valid if You have any active products in Your account.
If You signed up for an annual payment plan, and You elected the automatic renewal option, SmartEmails will automatically renew Your Services when they come up for renewal and will take payment from the Payment Method You have on file with SmartEmails, at SmartEmails then current rates.
If for any reason SmartEmails is unable to charge Your Payment Method for the full amount owed to SmartEmails for the Services provided, or if SmartEmails is charged a penalty for any fee it previously charged to Your Payment Method, You agree that SmartEmails may pursue all available remedies in order to obtain payment. If You pay by credit card and if for any reason SmartEmails is unable to charge Your credit card with the full amount of the Services provided, or if SmartEmails is charged back for any fee it previously charged to the credit card You provided, You agree that SmartEmails may pursue all available remedies in order to obtain payment. You agree that among the remedies SmartEmails may pursue in order to effect payment, shall include but will not be limited to, immediate cancellation without notice to You of any domain names or Services registered or renewed on Your behalf. SmartEmails reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular Services, including additional costs that it may incur in providing the Services and pass along to You. These include, but are not limited to, customer service issues that cannot be handled over email but require personal service, fees incurred by third parties You have elected to use as payment methods, including PayPal, and disputes that require legal services. These charges will be billed to the Payment Method we have on file for You.
You agree that You are solely liable for arranging that Your Services are renewed, and that SmartEmails shall not be liable to You or any third party if it is unable to charge Your Payment Method in order to renew Your Services.
While all transactions are processed in Australian dollars, SmartEmails may provide an estimated conversion price to currencies other than Australian dollars. You acknowledge and agree that the pricing displayed during the checkout process is an estimate. Due to potential slight time delays between actual purchase and the payment settlement, the actual price charged may fluctuate. SmartEmails makes no representations or warranties that the estimated price will be the same or substantially similar to the actual price You will pay and You waive any and all claims based upon any discrepancy between the estimate and the actual price and the price paid and any subsequent refund. In addition, you may be charged, GST or other localised taxes, based on the country indicated in Your billing address section. Any amounts to be charged are included during the checkout process.
By using SmartEmails pay by PayPal, Inc. (“PayPal”) option (“Pay by PayPal”), You can purchase SmartEmails Software and Services using PayPal. In consideration for the Software and Services purchased by You and provided to You by SmartEmails, You agree to allow PayPal to debit the full amount of this transaction from Your PayPal account balance or the Preferred Funding Source You established with PayPal, which is non-refundable.
It is Your responsibility to keep Your PayPal Account current, to have available funds in it and to have Your PayPal Account backed by a valid credit card. You agree that PayPal and SmartEmails will not be responsible for payments that fail to go through as a result of Your Funding Source no longer existing, or holding insufficient funds. If for any reason PayPal is unable to withdraw the full amount owed for the Services provided, You agree that PayPal and SmartEmails may pursue all available remedies in order to obtain payment. You agree that if the transaction is returned unpaid, You will pay a service charge of $25.00 or the maximum amount allowed by law, which may be debited from Your account by PayPal or charged to Your Preferred Funding Source.
By clicking the box labeled “I agree” to the terms of the Pay by PayPal terms, You authorise the information provided to be used for the creation of an electronic funds transfer (EFT), and You authorise a debit of THE FULL AMOUNT of Your order from Your PayPal Account or Preferred Funding Source.
You, or the individuals who electronically execute this Agreement on behalf of You hereby represent and warrant that they have the right, power, legal capacity and appropriate authority to enter into this Agreement, and that they own and have not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement. You represent and warrant that You are 18 years of age or older, or that You have an agent authorised by law to represent You who is 18 years of age or older who is entering into this Agreement on Your behalf. You warrant that each action You make is being done so in good faith and that You have no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party’s trademark or trade name.
SmartEmails expressly reserves the right to deny, cancel or transfer any domain name registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of SmartEmails, as well as its affiliates, subsidiaries, officers, directors and employees. SmartEmails also reserves the right to freeze a domain name during resolution of a dispute.
IN NO EVENT SHALL SMARTEMAILS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTIES, EITHER EXPRESS OR IMPLIED, ANY BREACH OF THIS AGREEMENT OR ITS INCORPORATED AGREEMENTS AND POLICIES YOUR INABILITY TO USE THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF THE SOFTWARE OR SERVICES, YOUR LOSS OF DATA OR FILES OR OTHERWISE, EVEN IF SMARTMAILS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions may not allow such a broad exclusion or limitation on liability for damages as contained herein. In such jurisdictions, SmartEmails liability is limited to the full extent permitted by law. You agree that in no event shall SmartEmails maximum aggregate liability exceed the total amount paid by You for the particular Software or Service in dispute purchased from SmartEmails.
SMARTEMAILS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SUCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SPORTSMAIL MAKES NO WARRANTY THAT ITS SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. SMARTEMAILS DOES NOT WARRANT, NOR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR RESULTS OF, ANY OF THE SERVICES IT PROVIDES, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
You agree to defend, indemnify and hold harmless SmartEmails and its contractors, agents, employees, officers, directors, shareholders, and affiliates from any loss, liability, damages or expense, including reasonable attorneys’ fees, resulting from any third party claim, action, proceeding or demand related to Your (including Your agents affiliates, or anyone using Your account, software or services with SmartEmails whether or not on Your behalf, and whether or not with Your permission) use of the Software or Services You purchased from SmartEmails or Your breach of this Agreement or incorporated agreements and policies. In addition, You agree to indemnify and hold SmartEmails harmless from any loss, liability, damages or expense, including reasonable attorneys’ fees, arising out of any breach of any representation or warranty provided herein, any negligence or wilful misconduct by You, or any allegation that Your account infringes a third person’s copyright, trademark or proprietary or intellectual property right, or misappropriates a third person’s trade secrets. This indemnification is in addition to any indemnification required of You elsewhere. Should SmartEmails be notified of a pending law suit, or receive notice of the filing of a law suit, SmartEmails may seek a written confirmation from You concerning Your obligation to indemnify SmartEmails. Your failure to provide such a confirmation may be considered a breach of this agreement. You agree that SmartEmails shall have the right to participate in the defence of any such claim through counsel of its own choosing. You agree to notify SmartEmails of any such claim promptly in writing and to allow SmartEmails to control the proceedings. You agree to cooperate fully with SmartEmails during such proceedings.
You agree You will not be entitled to a refund of any fees paid to SmartEmails if, for any reason, SmartEmails takes corrective action with respect to Your improper or illegal use of its services.
This agreement shall be deemed entered into in the State of Victoria. You agree that the laws and judicial decisions of Vitoria, Australia, shall be used to determine the validity, construction, interpretation and legal effect of this Agreement. You agree that any action relating to or arising out of this Agreement shall be brought in the courts of Melbourne, Victoria, Australia. You agree to waive the right to trial by jury in any proceeding that takes place relating to or arising out of this Agreement.
You agree that all notices (except for notices concerning breach of this Agreement) from SmartEmails to You may be posted on our Website. Notices concerning breach will be sent either to the email or postal address You have on file with SmartEmails. SmartEmails In either case, delivery shall be deemed to have been made five (5) days after the date sent.
Notices from You to SmartEmails shall be made either by email or sent to the address provided on the SmartEmails Website.
The headings in the Agreement are descriptive only and in the event of a conflict between a heading and the underlying terms of this Agreement, the terms of this Agreement shall control.
You agree that this Agreement including the policies and agreements it refers to constitute the complete and only Agreement between You and SmartEmails regarding the Services contemplated herein.
You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect.
The failure of SmartEmails to enforce any of the provisions within this Agreement or its incorporated agreements and policies against You or others shall not be construed to be a waiver of the right of SmartEmails thereafter to enforce such provisions.
SmartEmails will make every effort to keep its Web site and Services operational. However, certain technical difficulties and other factors outside of its control may, from time to time, result in temporary service interruptions. You agree not to hold SmartEmails liable for any of the consequences of such interruptions.
Sections 1, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive any termination or cancellation of this Agreement.
Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.