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END-USER SERVICES AGREEMENT

 

 

This End-User Services Agreement (“Agreement”) is an agreement between you, an individual or an individual acting on behalf of your employer, a corporation, partnership, or other legal entity that will be using SendEmails.com ’s services (“User”), SendEmails.com, Schillerstr. 1, 32602 Vlotho, Germany (“Company”). Company’s services, as described below in Section 2 and Exhibit A hereto (the “Services”), include proprietary materials, the use of which is subject to the terms and conditions of this Agreement. User accesses the Services through a member account (“Account”).

 

1. ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT

 

The Services, provided by Company, are provided to User under the terms and conditions of this Agreement and Exhibit A hereto, any amendments to this Agreement and/or Exhibit A, and any operating rules or policies that may be published from time to time by Company, all of which are hereby incorporated by reference. This Agreement comprises the entire agreement between User and Company regarding the use of Services and supersedes any prior agreements pertaining to the subject matter contained herein.

 

2. DESCRIPTION OF SERVICES

 

Company is providing User with any or all of the following services: (a) email delivery; (b) software to submit emails; and (c) any other services which Company may elect to provide on behalf of Client in the future.

 

Company also reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to User. User agrees that Company and their third party service providers shall not be liable to User or any third party for any modification or discontinuance of the Services.

 

3. USER'S REGISTRATION OBLIGATIONS

 

User must be at least thirteen (13) years old to register for the Services. In consideration of use of the Services, User agrees to: (a) provide true, accurate, current, and complete information about User as prompted by the registration form; and (b) to maintain and update this information to keep it true, accurate, current, and complete. If any information provided by User ("Registration Data") is untrue, inaccurate, not current, or incomplete, Company has the right to terminate Account and refuse any and all current and/or future use of the Services.

 

4. USE OF REGISTRATION DATA

 

User acknowledges that Registration Data may to be shared between Company and any 3rd Party service providers if necessary to provide the Services. Company agrees not to contact User if User informs Company of User's preference not to be contacted.

 

This Agreement includes the terms and conditions of Company's Privacy Policy, a copy of which is located at http://www.SendEmails.com/privacy.php, and which is hereby incorporated by reference. In the event that there exists any inconsistency between this Agreement and the Privacy Policy, the terms and conditions of the Privacy Policy shall take precedence.

 

5. USER CONTENT

 

Company considers email transmitted via the Services to be the private correspondence of the sender. Company will not monitor, edit, or disclose the contents of a User's private communications, except that User agrees that Company may do so: (a) as required by law; (b) to comply with legal process; (c) if necessary to enforce this Agreement; (d) to respond to claims that such contents violate the rights of third parties; or (e) to protect the rights or property of Company, its third party service providers, or others, or (f) if there are suspicious facts that User uses the Services for sending unsolicited emails (“spam”) (see 8. for a definition).

 

User understands and agrees that technical (and sometimes manual) processing of email communications and any other information supplied by User is and may be required: (a) to send and receive messages; (b) to conform to the technical requirements of connecting networks; (c) to conform to the limitations of the Services; or (d) to conform to other, similar technical requirements.

 

User acknowledges and agrees that Company, Client and their third party service providers do not endorse the content of any User communications and are not responsible or liable for any unlawful, harassing, libellous, privacy invading, abusive, threatening, harmful, vulgar, obscene, indecent, tortuous, or otherwise objectionable content, or content that infringes or may infringe the intellectual property or other rights of another.

 

6. USER NAME, MEMBER ACCOUNT, PASSWORD AND SECURITY

 

User be provide a username and password for the Account by company after completing the registration process for the Services.

 

User is responsible for maintaining the confidentiality of the password and Account, and is fully responsible for all activities that occur under User's Account. User agrees to immediately notify Company of any unauthorized use of User's password or Account or of any other breach of security.

 

6.1. PAYMENT

 

 User can sign-up for the Services on a monthly subscription basis. An Account can only be created or upgraded after receiving payment. Payments cannot be refunded. User can terminate the subscription and Account any time by sending an email indicating that he wants the subscription to be terminated. Late payment is subject to a fee of $25.00 USD.

 

7. USER CONDUCT

 

User agrees to abide by all applicable local, state, national, and international laws and regulations during use of the Services, and agrees not to interfere with the use and enjoyment of the Services by other users. User agrees to be solely responsible for the contents of User's private and public communications, whether uploaded, posted, emailed, or otherwise transmitted through the Services.

 

User agrees: (a) not to use the Services for illegal purposes; (b) not to interfere with or disrupt the Services or servers or networks connected to the Services; (c) to comply with all requirements, procedures, policies, and regulations of networks connected to the Services; (d) not to resell the Services or use of or access to the Services; and (e) to comply with all applicable laws regarding the transmission of technical data exported from Germany.

 

User agrees not to upload, email, or otherwise transmit through the Services: (a) any unlawful, harassing, libellous, privacy invading, abusive, threatening, harmful, vulgar, obscene, indecent, tortuous, or otherwise objectionable material of any kind; (b) any material that violates the rights of another, including, but not limited to, the intellectual property rights of another; (c) any material that violates any applicable local, state, national, or international law or regulation; or (d) unsolicited or unauthorized advertisements, promotional materials, "junk mail," unsolicited emails (“spam”), (see 8. for a definition of unsolicited emails) "chain letters," or other forms of solicitation. User agrees not use misleading email header information. User agrees to set email header information which must be accurate and identify the person, who initiated the email. User agrees not to use deceptive subject lines. User agrees to use subject lines, which do not mislead the recipient about the contents and subject matter of the message. If User sends commercial emails, User agrees to clearly mark these emails as an advertisement and to include User's valid physical postal address in the email message. User agrees to not use tracking of opened emails, clicked links or geographical location of recipients if User's recipients have not agreed to or have not been informed of this practice. User agrees to assure that tracking of opened emails, clicked links or geographical location of recipients confirms to User's local laws. User must include the Services' unsubscribe link in all emails transmitted through the Services (see 9. for a definition of unsubscribe link). User agrees not to attempt to gain unauthorized access to other computer systems or networks connected to the Services. User acknowledges and agrees that Company may ban User from future use of the Services if User does not comply with Company's standards of conduct, even if User attempts to use the Services through another Client or under a different name. User acknowledges that Company may terminate the Services at its sole discretion anytime for no specific reason, e.g. if emails sent by User promotes products, services or web sites that does comply with the ethic  standards of Company. User acknowledges and agrees that Company may recover damages from User if User violates these terms and may charge a penalty of up to $10,000 USD per incident.

 

8. UNSOLICITED EMAILS


Any email sent to an address that is not confirmed opt-in (signup plus confirmation) is per Company’s definition an unsolicited email. Confirmed opt-in means, that (1) User’s recipient must have signed up to User's newsletter for a well defined purpose, for example using a subscription form, and (2) that the email address was verified to belong to same recipient who has signed up. User must either use the confirmed opt-in mechanism provided by the Services or use its own confirmed opt-in mechanism and provide company with proof of subscription if an address is in question. Also, an email sent to a confirmed opt-in address becomes an unsolicited email by Company's definition, if (1) the recipient has unsubscribed and the unsubscribe request was not honored within 24 hours, (2) the content or (3) frequency do not fit for the purpose for which recipient has subscribed to User's newsletter.

 

9. UNSUBSCRIBE LINK

The Services include an automatic way to unsubscribe from User’s newsletter using unsubscribe links. User agrees to place the Services’ unsubscribe link in all emails transmitted through the Services. The unsubscribe link may not be made invisible, unreadable by using a small font size and its function may not be misrepresented. User may only use one way of unsubscription which is unsubscription method provided by the Services.

 

10. ACCOUNT LIMITATIONS

 

Account is limited in the size and the maximum number of emails, which can be processed per calendar month. The maximum size of emails is 500,000 byte including header information, emails message (plain text part, HTML part and personalization data) and email attachments. The maximum number of emails, which can be processed per calendar month, depends on the Service's plan for which has User has signed up.

 

11. INDEMNITY

 

User agrees to indemnify and hold Company and their third party service providers, and their parents, subsidiaries, affiliates, officers, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of User's use of the Services, User's connection to the Services, User's violation of this Agreement, or User's violation of any rights of another party.

 

12. STORAGE OF COMMUNICATIONS

 

Company and its third party service providers assume no responsibility for the deletion or failure to store email messages, communications, or other content maintained or transmitted through the Services. Company may establish in its sole discretion an upper limit on the extent of message storage it will maintain for User.

 

13. TERMINATION

 

(a) User agrees that Company or its third party service providers may terminate User's password, Account, or use of the Services if Company or its third party service providers believe: (i) that User has violated or acted inconsistently with the letter or spirit of this Agreement; or (ii) that User has violated the rights of Company or its third party service providers or other Users or parties. User further agrees that Company and its third party service providers may terminate User's password, Account, or use of the Services when User fails to provide payment for the service.

 

(b) User agrees Company and Client may immediately delete User's Account and all related information, communications, and files, and may bar any further access to such account, communications, files, or the Services under any provision of this Agreement. User also acknowledges and agrees that termination of any of the Services may be effected without prior notice.

 

 (c) User acknowledges that Company may discontinue the service anytime without further notice.

 

14. LINKS

 

The Services may provide, or users may include in email, links to other Web sites or resources. However, User agrees not to include in email (or elsewhere via the Services) any "deep link" which leads to a web page, other than the home page, of another party's web site unless such a link is authorized by the owner of that web site. User acknowledges and agrees that Company and its third party service providers are not responsible for the availability of such external sites or resources, or for User's use of deep links, and that Company, Client, and their third party service providers do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.

 

15. COMPANY'S PROPRIETARY RIGHTS

 

User acknowledges and agrees that content, including, but not limited to, text, software, music, sound, photographs, graphics, video, or other material contained in sponsor advertisements or information presented to User through the Services or third party advertisers is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. User acknowledges and agrees that User is permitted to use this material and information only as expressly authorized by Company or advertisers, as applicable, and may not copy, reproduce, transmit, distribute, or create derivative works of such content or information without such express authorization.

 

16. EXCLUSIVITY

 

User is not allowed to use any software provided by Company with servers other than those provided by Company.

 

17. FREE ACCOUNTS

 

Company offers free accounts for testing purposes. One free Account may be created by User and domain. For sign up an email address must be used which matches the domain of User's homepage. Free and shared email providers are not eligible for sign up. Emails sent through a free Account may only contain links pointing to User's homepage. A free Account is a time limited beta version (have a look at 15.) BETA VERSION). Company reserves the right to cancel a free Account at any time. In no circumstances may Company be made responsible for any damaged caused by usage of the Services or non availability of the Services. User has no right to receive a free Account. Free accounts are a time limited promotion which may be cancelled at any time. Company may terminate a free Account, which has not been used for longer than 30 days.

 

18. BETA VERSION

 

Company may declare versions of the Services as "beta versions". Company makes no guarantees regarding any function or availability of the Services. Beta versions may not be usable at all. Beta versions may contain programming errors leading to data loss, data corruption, loss of sent emails or other serve unexpected behaviour. User agrees to backup his data prior to use beta versions and to verify all actions taken by the Services. In no circumstances may Company be made responsible for any damaged caused by usage of the Services or non availability of the Services.

 

19. ACCURACY OF STATISTICS AND REPORTS

 

There is a technical uncertainty of the statistics provided by the Services. Statistics of the Delivery Report are created by interpreting the response code of receiving email servers. If an email has been successfully sent, it still might not reach the recipient’s inbox due to filters applied by the receiving side. Statistics for Opened Emails are created by counting the number of load requests of an invisible image added to the email body. Some email clients prevent to load this image and thus these recipients will not appear in the statistics.

 

20. CLICK REPORTS

 

If User decides to activate tracking of clicked links, the Services will replace links with redirection links pointing to Company’s web servers. In no circumstances may Company be made responsible for the linked content. These redirection links are just for statistical tracking and the linked content does not reflect the opinion of Company at all. Company’s web servers might be non functional or overloaded for a period of time, so the links of User’s email will not be accessible. In no circumstances may Company be made responsible for damages caused by non availability of User’s linked content. User may not use this feature, if availability of User’s linked content must be guaranteed.

 

21. BILLING

 

User is billed by processed and not by sent emails. For User’s transparency User is only billed for one email, even if an email needs to be sent more than one time due to temporary failures of the receiving email server. If an email’s recipient is known to be invalid (list “Permanent Error”) or has unsubscribed (list “Unsubscribed”) or is stored more than one time in User’s database (list “Duplicate Address”) this email will not be sent, but it is accounted as an processed email and is thus billed.

 

22. DESKTOP SOFTWARE

 

User may use software provided by Company only as long as User has a valid Account. If User cancels his account or if User’s account is suspended, deactivated or cancelled by Company, User must remove all software provided by Company within 3 days from all his computers.

 

23. DISCLAIMER OF WARRANTIES

 

(a) USER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT USER'S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

 

(b) COMPANY AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM 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.

 

(c) COMPANY AND ITS THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET USER'S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES COMPANY OR ITS THIRD PARTY SERVICE PROVIDERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.

 

(d) USER UNDERSTANDS AND AGREES THAT ANY INFORMATION, CONTENT, DATA, OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH OR FROM THE SERVICES IS OBTAINED AT USER'S OWN DISCRETION AND RISK, AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.

 

(e) COMPANY AND ITS THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.

 

(f) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM COMPANY OR ITS THIRD PARTY SERVICE PROVIDERS, OR THROUGH OR FROM THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

 

(g) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO SOME USERS.

 

24. LIMITATION OF LIABILITY

 

(a) USER AGREES THAT COMPANY AND ITS THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICES, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED, OR FROM MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, EVEN IF COMPANY OR ITS THIRD PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

(b) USER FURTHER AGREES THAT COMPANY AND ITS THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION, OR TERMINATION OF SERVICES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION, OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.

 

(c) Company has a policy providing for termination of the Services to account holders who are repeat offenders. However, USER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

 

(d) IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY AND ALL MATTERS RELATING TO THIS AGREEMENT FOR ANY AGGREGATE AMOUNT IN EXCESS OF $50 USD.

 

(e) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SOME USERS.

 

(h) Company may place limits on mail a user can send in a given period of time in order to protect the health of the company's network. These limitations may be different by the Account type user has ordered.

 

 

25. AMENDMENT

 

Company may modify this Agreement at any time, and such modifications shall be effective immediately upon posting or other method of notification to User, which notice may be provided on the Web pages through which User accesses or uses the Services. User's continued access or use of the Services shall be deemed to be User's conclusive acceptance of the modified Agreement.

 

26. GENERAL

 

Company's third party service providers are intended beneficiaries of this Agreement. This Agreement and the relationship between User and Company shall be governed by the laws of Germany without regard to its conflict of law provisions. User and Company agree to submit to the personal and exclusive jurisdiction of the courts located within Germany . The failure of Company and its third party service providers to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties' intentions as reflected in the provision and rule that the other provisions of this Agreement remain in full force and effect. User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

 


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