Terms of Use

By using emailezy in any way, shape or form, you’re agreeing to these terms. This is a legal agreement, so please read these terms carefully as they are legally binding.

Definitions

Agreement means this these Terms & Conditions and the Site Quote.
Business days means any day being a Monday Tuesday Wednesday Thursday or Friday excluding public holidays in the State of New South Wales.
Claim means any claim, action, demand, suit, proceedings, demands, liability, compensation, damages, remedy, reimbursement and/or costs whether at common law, in equity or statute.

Client Login Page means a webpage interface provided by emailezy to the Client to facilitate provision of the Services.

Confidential Information means all information that is confidential or proprietary or relates to the business or assets of the parties and is not generally known by the public.

Intellectual Property Rights means copyright, trade mark, design, patent, semiconductor or circuit layout rights relevant to, inter alia:
(a) the design, layout and graphical material displayed on the Website;
(b) the User interface of the Website including but not limited to screens, organisation, patents and operation or control features, and
(c) all computer software associated with the Website.
Force Majeure means a circumstance beyond the reasonable control of the parties which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:
(a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, epidemics, pandemics, fires and any natural disaster;
(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution;

Insolvency Administration, in relation to a party, means any of the following events:
(a) the party ceases to (or is unable to) pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to do so;
(b) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to that party;
(c) such party enters into, or resolves to enter into, a scheme of arrangement, compromise or composition with any class of creditors;
(d) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of that party; or
(e) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction;

Materials means any textual, graphical, audio or like materials together with any information, data, computer programs, computer software, applications, hardware, and any materials required by emailezy to provide the Services to the Client.

emailezy Tools means the proprietary computer software tools used by emailezy to supply the Services under this Agreement.

Services means the services that allows you to create, send, and manage email newsletters and subscribers (each message is called an “Email”, or an “EDM”) to recipients.

Support Services means commercially reasonable technical support to maintain and update the website with these Services.
Use means to access, use, download, copy or otherwise benefit from using the functionality of emailezy in accordance with this Agreement.
User means a person other than the parties who seeks access to the Website over the internet.

Design means the design, layout and artistic and graphical material displayed on the Website.

Website means the website created by emailezy for the Client under this Agreement.

Representing and warranting is like making a legally enforceable promise.

Term is the period of time the Plan signed up to consists of and automatically rolls over into the new Term unless cancelled.

Emailezy is owned by SMART DIGITAL GROUP PTY. LTD ACN 611 319 647. Emailezy has employees, independent contractors, and representatives ("The Team").  As a (paid or free) customer using the ‘Service’ or using it on behalf of an entity that’s a customer of the Service, you're a “Member” according to these terms.

These Terms of Use (“Terms,” include our Privacy Policy, Acceptable Use Policy) define the terms and conditions under which you’re entitled to use emailezy and how we’ll treat your account while you’re a Member. For any questions about our terms, contact us here.

Changes

We may change any of the Terms at any time by updating this policy on our website or by   sending an email to the last email address provided by you to us under your account profile. If you do not agree with the revised Terms, you have 7 days to terminate your account. We reserve the right to change the Website, the Service, or any features/functions of the Service at any time. Should you wish to terminate your account at any time due to changes, no refunds for any of the unused periods will be provided.

Account

1. Eligibility

By using the Service, you represent and warrant that you meet all the requirements listed below. In order to use our Service, you must:

  1. be at least eighteen (18) years old and warrant you have the ability to enter into contracts;
  2. complete the registration process;
  3. agree to all Terms; and
  4. provide accurate, complete, and up-to-date contact information.
  5. agree not to use this Service for spamming purposes or any other way that violates any laws or regulations

emailezy retains the right to refuse service, suspend, close or delete accounts of any users, and change eligibility requirements at any time.

2. Term

The Term begins when you sign up for emailezy and continues as long as you use or have access to the Service. Logging into the site (entering a username and password) means that you’ve officially “signed” the Terms. If you sign up for emailezy on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.

3. Closing/Suspending Your Account

You or emailezy may terminate this Agreement at any time and for any reason by giving Notice to the other party. With or without cause we may suspend our Service to you at any time. Where Termination is due to a direct violation of any of our Terms, there will be no refunds or reimbursement. Where termination is without cause, we'll refund any unused portion as a prorated amount of your monthly prepayment.

Once terminated, we reserve the right to permanently delete your account and all the data associated with it, including your emails and reporting history from our Website.

Inactive accounts: If you don’t log in to your account for 6 or more months and have no active paid subscription, we may treat your account as "inactive" and permanently delete the account and all the data associated with it.

4. Account Disputes

The representative signing up for the account takes full responsibility for that account. Emailezy will not enter into any disputes with a company as to who owns the account. We will not provide private information to the non-account holder, which includes any account holder information, or any data contained within the account.

Where the account holder has left the company and the email associated with the account is no longer Active, we may accept forms of identification to allow us to provide a company account holder access to the account.

As it is the responsibility for the account holder to cancel a subscription, where an account still has an active subscription but unused, no refunds will be provided for any unused periods.

5. Access: Account and Password

The account holder is responsible for keeping their username and password confidential. Whether or not you have authorised access to the account, you take full responsibility with how your account has been used. emailezy are not responsible for any losses due to stolen or hacked passwords.  If you feel there has been any unauthorised access or use of your account, you must notify us immediately. To protect your security, emailezy do not have access to your password(s). We only have the ability to reset your password.

Rights

6. Our Proprietary Rights

You shall respect our proprietary rights in the Website and the software used to provide emailezy. You may only use our brand assets where you have written approval or followed our guidelines for emailezy brand usage. Proprietary rights include patents, trademarks, service marks, intellectual property rights and copyrights.

7. The Client warrants:

a. it holds the rights to use all information and Materials used within the Service and that it is compliant with all third party intellectual property rights of images, content, design and Materials used for the provision of Services under this Agreement, and

b. It is compliant with the Privacy Act 1988, and all Materials used including images and content in whatever format used by the Client do not breach any privacy law in any jurisdiction.
emailezy may use or disclose your materials only as we describe in these Terms and our Privacy Policy.

8. Right to Review Accounts

We reserve the right to access any account and view or copy any information contained within your account to identify problems or areas for improving our Service.

9. Privacy Policy

Please refer to our Privacy Policy for how we treat data and personal information. Our Privacy Policy form part of these Terms.

Payment

10. Subscription Plans

Our plan charges are posted on our Website and may be changed from time to time. Plans have usage limits and to use more than these limits will require a plan increase. Should a plan be cancelled at any time, payment for that month is still due for the full month and no prorated amounts will be refunded. Should a plan be increased, the unused portion of the old plan is refunded (based on an average of 30.42 days in a month) and the new plan commences with a new subscription date. A plan is based on a full month and not the number of days in a month.

If payment cannot be processed for any reason emailezy reserves the right to suspend the account immediately.

11. Refunds

Refunds are only provided for one Term, and where plan increases take place as described under ‘Subscription Plans’ above, or where we Terminate your account for no reason.

12. Plan Changes

We reserve the right to change our fees at any time by placing a new pricing structure on our Website and/or sending you a notification by email.

Rules and Abuse

13. General Rules

  1. You will only use The Service for lawful purposes
  2. You will not use this service to send Spam! The definition of Spam can be found on the Spamhaus website. In summary, spam is an unsolicited email(s) sent without a senders permission.
  3. You won’t make use of purchased, rented, or third-party lists of email addresses for this Service.
  4. You won’t violate our Acceptable Use Policy, which forms part of this Agreement.

Any violation of these rules, may result in immediate suspension or termination of your account.

14. Your responsibilities

You  agree that each email sent by you in connection with the Services shall contain the an “unsubscribe” link that allows a recipient to remove themselves from your mailing list. You are prohibited from mailing any recipient who has clicked on the unsubscribe link without their permission in writing. You shall process all manually requested unsubscribe requests received by any means including but not limited to email, phone call, postal message, within 14 days of request by a your email recipient. Any complaints received by emailezy as a result of inaction to unsubscribe a recipient may result in a termination of your account by emailezy.

You agree to only use permission based lists, and not use third party mailing lists for the purposes of creating groups and sending email campaigns. By definition, a permission based list is a list in which each recipient has explicitly granted their permission to receive emails or other communications from you.  Any complaints received by emailezy as a result of such action may result in a termination of your account by emailezy.

17. Reporting Abuse

We take reports of abuse very seriously. If you believe anyone is in violation of these Terms, please notify us immediately here. Abuse may be in the form of:

  1. Spam
  2. Breaches of copyright

18. Bandwidth Abuse/Throttling

Our hosting services are only for your email campaigns. They may not be used for any other purposes such as storing/accessing images, files or any other kind of documents.

19. Compliance with Laws

You are responsible for making sure you comply with your local laws when using this Service.

Indemnity

You agree to release, indemnify (and keep indemnified) and hold harmless emailezy, its related entities, directors, employees, agents, contractors and third party providers (Those Indemnified) against any and all Claims, liabilities, loss, costs, damages, fees or expenses (including reasonable solicitors costs) arising from or in any way related to:

a. the use of any and all third party Materials for the provision of Services under this Agreement,
b. the use of any and all images, photos and artwork provided by you for the provision of Services under this Agreement,
c. a breach of this Agreement by the you including outstanding payments and breach of intellectual property,
d. any Material provided by the you,
e. any delay in the delivery of the Services,
f. the use or misuse of the Service,
g. any disruption to the Client due to the non availability of the Website,
h. any online payment facility on the Website,
i. any infringement or alleged infringement by any of Those Indemnified of any third party Intellectual Property Rights arising out of the use by those indemnified of any Material supplied to them by the you or anyone acting on your behalf

Your liability to indemnify emailezy under this clause will be reduced proportionally to the extent that any fault on emailezy’s part contributed to the relevant loss, damage, expense, or liability.

19.3 emailezy’s right to be indemnified under this clause is in addition to, and not exclusive of, any other right, power, or remedy provided by law.

Fair Use Policy

Liability

20 Limitation of Liability

20.1 The Client agrees that in no event shall emailezy be liable for any damages of any type (including loss of data, revenue, profits, opportunity, future earnings, use or other economic advantage) arising out of or in any way connected with:
a. the Services;
b. Client Materials;
c. modifications, alterations or changes made to the Service by the Client or any third party;
d. the interaction of the Service with third party applications;
e. a third party Material provided or specified by emailezy;
f. the functionality of the third party applications;
g. errors or defects in the Service;
h. the security of your account;
i. suspension or termination of the Services for any reason, or
j. any interruption, inaccuracy, error or omissions, regardless of the cause whether such damages arise in contract, in tort, in equity, under statute, at law or otherwise.

20.2 Subject to clause 20.1, emailezy’s aggregate liability to the Client for any claims arising out of or in connection with this Agreement (whether based in contract, tort or under statute) is limited in the aggregate to the amount paid by the you to emailezy in the 12 months’ immediately preceding the event giving rise to the Claim.

21. Warranties and Disclaimer of Warranties

21.1 Except for the express representations and warranties stated in this agreement, emailezy makes no warranties and explicitly disclaims any other representation, warranty or guarantee, express, implied, statutory (to the extent permitted by law) or otherwise that:

a. the Service will be 100% error free in their construction;
b. the use of Services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, computer program, system or data;
c. any data stored will be accurate or reliable;
d. errors or defects can be corrected;
e. the Services or the server(s) that make the Service available are free of viruses or other harmful components

Warranties of Merchantability

Since people use emailezy for many varied reasons, we cannot guarantee that it will meet each users specific requirements.

23. Legal Fees

If action in which we prevail, including legal proceedings, is necessary as a result of a breach of these Terms, you agree you will pay all emailezy’s costs and expenses and any other damages or other relief we may be awarded.

If we are required to provide information in response to a subpoena about your account, we may charge additional fees. These range from general Admin costs, our employees (or contractors) time, through to any legal costs we incur.

24. Disclaimers

Emailezy are not responsible for the behaviour of any advertisers, linked websites, or other Members.

Other

These Terms & Conditions are to be construed in accordance with the laws of New South Wales.

25. Force Majeure

Neither party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

The party affected by a Force Majeure event must notify the other party as soon as practical of any anticipated delays.

If a delay or failure of a party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that party’s obligations will be suspended. Both parties must agree to a reasonable extension of the time to complete the Services, or failing agreement, determine an appropriate extension of time by the dispute resolution procedure set out in clause 23.

If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 30 days, either party may immediately rescind the Agreement on providing notice in writing to the other party.

If this Agreement is rescinded pursuant to clause 24.4, each party releases the other party from:
(a) any further obligation to perform this Agreement; and
(b) any new claim of loss or damage with respect to this Agreement at law or statute that is not subsisting at the time of rescission.

26. Survivability

The operation of these clauses 2, 4, 9, 10, 15, 17, 18, 19, 20, 21, 22 and 25 survives the expiration or earlier termination of these Terms & Conditions.

Even if this Agreement is terminated, the following sections will continue to apply: Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.

27. Severability

Any provision, or the application of any provision (or part thereof), of this Agreement which is prohibited in any jurisdiction is, in that jurisdiction, ineffective only to the extent of that prohibition.
Any provision of, or the application of any provision of, this Agreement which is void, illegal or unenforceable in any jurisdiction does not affect the validity, legality or enforceability of that provision in any other jurisdiction or of the remaining provisions in that or any other jurisdiction.

If a clause is wholly or partly void, illegal or unenforceable, it may be wholly or partly severed (as appropriate) without affecting the enforceability of the remaining part of the clause, or any other clause in this Agreement.

28. Assignments

You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.

29. Waiver

A failure or delay by a party at any time to exercise any right it holds under this Agreement will not operate as a waiver of that right. A waiver by either party of a breach of any provision must not be held to be a waiver of any succeeding breach of the provision or a waiver of the provision itself.

A single or partial exercise by a party of any right it holds under this Agreement will not prevent that party from exercising that right again or exercising that right to the extent it has not already been exercised. In this clause, the word “right” means a right or remedy provided by this Agreement or at law.

30. Amendments

Amendments or changes to these Terms won’t be effective until we post or email revised Terms on the Website, or notify you directly in any other written form. Where additional terms may apply to other features of the Service, The additional terms will be considered incorporated into these Terms when you activate the feature. Where there’s a conflict between these Terms and the Additional Terms, the Additional Terms will take a higher priorty.

Member request Changes: These terms cannot be changed for any specific members under any circumstances no matter the member or entity requesting.

31. Security Breach

In the event of a security breach that may affect you or anyone on your Email distribution lists (each a "List"), we’ll notify you of the breach and provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that information to anyone on your Lists, you’ll promptly do it.

40. Notices

Any notice to you will be effective when sent to the last email or physical address you provided. Any notice to us will be effective when submitted through this form.

41. Entire Agreement

All Terms contained on our Website are incorporated into this agreement. These include:  our Privacy Policy, Acceptable Use Policy, , and any Additional Terms you’ve agreed to make up the entire agreement and supersede all prior agreements, representations, and understandings.

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