IMPORTANT - READ CAREFULLY:
The Most Important Sections
WARNINGS OF SERIOUS LEGAL CONSEQUENCES
(Applies to All Subscribers of Maxmail)
1. Who We Are:
"Maxmail" is a trade name and registered service mark of Genesis Interactive, a New Zealand based limited liability company, that owns and operates the website with the URL: http://www.MaxmailHQ.com (the "Website").
We require that any Subscriber be at least eighteen (18) years of age. By using the Services, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Services does not violate any applicable law or regulation. Your uploads may be deleted and your subscription may be terminated without warning, if we have reason to believe you are under eighteen (18) years of age.
5. Charges and Payments:
A. Monthly Plans
5.1 Charges for monthly plans are posted on our Website and may be changed from time-to-time. Payments are due for the full month for which any part of the month is included in the "Term." Payments are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly payment (the "Pay Date").
5.2 As long as you are a Subscriber or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.
5.3 We do not provide any refunds.
6. Term, Termination and Removal:
Either party may terminate the Term of this Agreement at any time for any reason by providing notice to the other party. We may suspend our services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment or reimburse you for unused email credits if we terminate you without cause. We will not refund and/or reimburse you in such manner, if there is cause, such as your using our system to send bulk Emails to people with whom your relationship does not meet the requirements of 11(b) below. Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our website and any other storage.
7. Account and Password:
You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
8. Proprietary Rights Owned by Us:
You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.
9. Proprietary Rights Owned by You:
You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
10. General Rules:
You agree to the following:
(a) You will not incorporate into your Email any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email or you are not otherwise permitted to use.
(b) You will not post on the Website, including in any Emails created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.
(c) You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
(d) You will not share your password.
(e) You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
(f) You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party's rights, including, but not limited to, copyrights and privacy and publicity rights.
(g) You consent to receiving occasional email communication from us concerning your account, upgrade offers, educational information and/or blog updates.
11. Anti-Spam and Abuse Related Rules:
You agree to the following:
(a) Definition of SPAM: We have adopted the definition of Spam set forth on the Spamhaus website at http://www.spamhaus.org/definition.html. The first line of the Spamhaus definition reads:
It is a concern to us if you use Maxmail to send any unsolicited email to anyone with whom you have no relationship. It is much more of a concern, and more likely to cause our system to be blocked by various ISP's, for you to send an unsolicited email to an entire list of people you don't know.
(b) Permission Lists Only: You may use Maxmail only to send Emails to individuals and entities that either:
Possibility 1 - Consent Obtained
(A) Gave or give you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission and either:
(i) Consent Given Recently gave you the permission within the prior 12 months; or
Possibility 2 - Sold or Negotiated to Sell Product or Service
(B) Gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:
(i) Recent Sale or Negotiation such sale or negotiations occurred within the previous 12 months; or
(c) Requirements: You agree that you will use:
You should only use Maxmail to send newsletters, updates, and promotions to people who specifically requested email from you, or otherwise meet the requirements of 11(b) above. Don't have a permission list yet? Maybe your company’s too new and you have no customers. Feel free to set up a Maxmail account, run through the List Setup Wizard, and add a signup form to your website so that you can grow your list.
(d) We're In This Thing Together: We do what we can to keep our system clean, but you agree to pitch in too. Here's how:
(e) CRM and API Imported Lists CRM tools are great for maintaining relationships with prospects and leads, then converting them into paying customers, or just nurturing your customer relationships. But CRM tools are built for one-to-one communication. Email marketing tools like Maxmail are built for one-to-many communication. They are not the same. Spam laws apply when you do one-to-many email marketing.
(f) Prohibited Content and Industries. Don't use Maxmail to send anything offensive, to promote anything illegal, or to harass anyone. You may not send:
(g) Who Can Use Maxmail. If you do not meet these eligibility requirements, you may not use the Maxmail service:
1. You must be at least 18 years of age, and be able to form legally binding contracts under applicable law.
(h) Bandwidth Abuse: Image hosting, API, Tracking. You may not use our bandwidth for anything other than your Maxmail email marketing. In this regard, you agree to the following:
(i) Fees, Refunds, Account Suspensions, Etc. You agree:
1. Maxmail reserves the right to change our fees at any time by posting a new fee structure to our Website.
2. If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
3. If, for some reason, we are unable to process your credit card order, we will attempt to contact you by email and we will suspend usage of your account until your payment can be processed.
4. You agree to pay for your account even if messages are blocked by any third party (we have no control over your recipients' email servers, ISP availability, personal spam filter settings, etc)
(j) Avoiding Spam Related Problems. As an email marketing service provider, we feel it's our duty to be extra vigilant about preventing spam related abuses. It's not just bad for the Internet community in general---if illegal and/or abusive spam gets sent from our system, we'd get blocked by all major ISPs, which would make our system useless for the thousands of users who depend on us.
Right to Review Email Campaigns
Feedback Loops w/ISPs
Maxmail has been delivering emails since 2007, and has established relationships with most major ISPs. They know us. We know them. We're on feedback loops (FBL) and reporting systems with most ISPs and anti-spam organizations:
When a recipient clicks their "this is spam" button in their email program, a FBL report is sent to us. We analyze the data, trace it back to the sender that caused the complaint, remove the complainer from the sender's list, and track future complaints about that campaign. If complaints exceed a reasonable threshold based on list size, we take appropriate action (which sometimes means permanently shutting down a Maxmail account) to keep our servers clean and off blacklists. To prevent this from happening to you, please read section 11(d) (e) and (f) above.
We take abuse reports seriously at Maxmail. If you've received spam that you think came from a Maxmail user, we want to hear about it. Please report the fact that you received spam from what appears to be a Maxmail user to us by emailing firstname.lastname@example.org
Report Bad Senders
Every campaign sent from Maxmail has an embedded Campaign Tracking ID (CID) in the email's header that makes it easy for recipients to report suspected spam.
Account Audit Policy
Because of one of the major causes of ISP level blocking, we've implemented a new Tool that allows us to check if the email addresses imported in your list are valid email addresses. This Tool is activated in two cases.
The list cleanup Tool runs straight after you have imported a list and if the total number of "bad" addresses exceeds 25% then your account will be referred to our Audit Team whereby you will need to provide us with some additional information that will help us validate your account. Until the audit is complete, you will not be able to send any campaigns from Maxmail. In most cases, the Audit results in the account being re-instated within 48 hours with specific recommendations as to how you can import clean lists in future. One way to avoid account audits and suspension is to make sure the list you are importing is
12. No Warranties:
To the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.
13. Limitation of Liability:
To the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and the services including any downloads from the website. Under no circumstances shall we or any of our employees or representatives be liable for any indirect, punitive, special or consequential damages even if we or any of our employees or representatives have been advised of the possibility of such damages. Our total liability in any event is limited to the amount, if any, actually paid by you for use of the website and the services for the one month period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation
You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims not permitted under this Agreement due to a "Limitation of Liability" or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this Website or the Services. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.
15. Liquidated Damages:
16. Attorney Fees:
In the event we file an action against you claiming you breached this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney's fees in addition to any damages or other relief which we may be awarded.
We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.
18. Reporting Violations:
If you become aware that any other person is violating any of the terms and conditions of this Website, please notify us immediately. If you believe that any person has posted material in violation of any copyrights that you may have, you may notify us in accordance with our Copyright Policy. If you believe that any user of this Website has posted materials in violation of any other rights that you may have, you may notify us in accordance with our Removal Policy.
You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity at our discretion.
20. Compliance With Law:
In using the Services, you agree that you will comply with all applicable laws.
21. Applicable Law and Jurisdiction:
(Applies to All Subscribers to the extent they Use Maxmail to Send Any Form of Email to Residents of the European Economic Area ("EEA") Which Is Composed of the Subscribers of the European Union ("EU") Together with Iceland, Norway and Liechtenstein)
22. Warranties of Compliance:
22.1 You represent and warrant that in compiling your Email distribution list, sending Emails via the Maxmail Services and collecting information as a result of individuals visiting your website or otherwise, with respect to your customers and potential customers who reside in the EEA, you:
(b) Represent and warrant that you have complied, and will comply, with all data protection and privacy laws and regulations applicable to the countries in which you are sending any form of email via Maxmail including, for example, with respect to the United Kingdom, the Data Protection Act, and the regulations relating to the European Union Privacy and Electronic Communications Directive. In this regard, you represent and warrant that you have collected, stored, used and transferred all data relating to any individual in accordance with all data protection laws and regulations relating to the country in which such individual resides and obtained all necessary consents to enable Maxmail to receive and process that data and forward communications to that individual on your behalf.
You further agree to indemnify and hold us harmless from any losses, including attorney fees, resulting from your breach of any part of the foregoing warranties.
(Additional Provisions Applicable to All Subscribers)
23.1 NO Consent Required: Once your trial account expires, you may receive upgrade and promotional offers for up to two (2) years without there being a need for us to reconfirm your consent to receive such information. However, if, at any stage you express your desire to opt out of receiving such communication, you may do so by either clicking on the "Opt out" link in the email (if available) or by replying with "STOP" in the subject line to the email you received opting you out from receiving any such information in the future.
23.2 Force Majeure. We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slowdowns over the internet or any third party internet service providers.
23.3 Survivability. The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.
23.4 Severability. The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
23.5 Interpretation. The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.
23.8 Further Actions. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
23.9 Notification of Security Breach. In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a "List"), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.
23.10 Amendments. No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.
23.11 No Changes in Agreement at Request of Subscriber. Because of our huge number of Subscribers, we cannot, as a practical matter, change this Agreement for any one Subscriber or group of Subscribers. If we did that, keeping up with the changes alone would be a logistical nightmare. In addition, one reason we are able to offer one of the most powerful email/electronic newsletter creation, distribution and management systems at a low price is that we are able to use this Agreement to reduce our financial risks.