Effective Date: March 1, 2016
The Service is offered subject to acceptance without modification of all of the terms and conditions contained herein (the "Terms of Service"), which terms also incorporates SmartrMail's Privacy Policy and all other operating rules, policies and procedures that may be published from time to time on the Site by SmartrMail, each of which is incorporated by reference and each of which may be updated by SmartrMail from time to time with notice to you (the "Policies"). In addition, some services offered through the Service may be subject to additional terms and conditions of SmartrMail from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
SmartrMail is an email publishing application for ecommerce email marketing.
When you visit this site, send emails to SmartrMail or request information via email or other mobile device, you are communicating with us electronically and consenting to receive communications electronically. This consent also includes receiving Notices posted to this Service electronically.
Subject to these Policies, SmartrMail may offer to provide the Services, as described more fully on the Site, and which are selected by you, solely for your own use, and not for the use or benefit of any third party. Services shall include, but not be limited to, any services SmartrMail performs for you authorized by SmartrMail, as well as the offering of any materials displayed or performed on or through the Site or the Services (including Content (as defined below)).
As a condition to using certain aspects of the Service, you are required to signup to SmartrMail and to provide SmartrMail with accurate, truthful, and complete information (including, but not limited to your name and e-mail address) and to keep your registration information accurate and up-to-date (the "User" "User Account").
You shall not provide any false personal information to SmartrMail or signup for anyone other than yourself. False information is a direct violation of FTC's CAN SPAM Law and can lead to penalties by the FTC.
SmartrMail reserves the right to refuse a User in its sole discretion. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your SmartrMail password. You shall never use another User's account nor are you permitted to allow another to access your User Account. You will immediately notify SmartrMail in writing of any unauthorized use of your account, or other account related security breach of which you are aware. Any unauthorized use of an account is a violation of these Terms of Service and will result in the suspension of that account.
SmartrMail charges for the Service based on the number of your newsletter subscribers in your User Account. For a list or current pricing please refer to the Pricing Page.
SmartrMail will automatically charge you based on your number of Subscribers.
The billing cycle is determined based on date User signs up for the Service.
The User may cancel their account at any time through the User Account page. Cancellations happen immediately and it is within SmartrMail's discretion to refund any unused portion of the User's balance.
IMPORTANT NOTICE: Your purchase is NOT exempt from tax merely because SmartrMail has elected not to collect the tax from you at the time of your purchase. Unless you live in Alaska, Delaware, Montana, New Hampshire. or Oregon, your state most likely requires purchasers to report all purchases that are not taxed and pay tax on those purchases. The tax may be reported and paid on your individual income tax return or by filing a consumer use tax return. For more information, please visit your state's department of revenue website.
SmartrMail DOES NOT COLLECT SALES TAX in any states NOT listed above because SmartrMail is not required to collect sales or use tax in these states. SmartrMail DOES NOT COLLECT SALES TAX in any states NOT listed above because SmartrMail is not required to collect sales or use tax in these states.
FOR OUR TAX EXEMPT CUSTOMERS: SmartrMail DOES NOT COLLECT SALES TAX if we have your exemption certificate on file, or you are shipping your order to a state that does not collect state or local sales or use tax.
By uploading any content to the Site, the User warrants that the User either owns the content or has written permission to use the User Content. It is the User's responsibility to research and clear the content and/images for potential Intellectual Property issues. Client gives SmartrMail a limited license to utilize and create derivative works of said content and/or images for the purpose of fulfilling the Service.
User Content and your use of the Services must be for legal purposes only. So please, no porn or otherwise questionable/illegal content.
The Service or Site may link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Site. When you access third party websites, you do so at your own risk. These other websites are not under SmartrMail's control, and you acknowledge that SmartrMail is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by SmartrMail or any association with its operators. You further acknowledge and agree that SmartrMail shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such Content, goods or services available on or through any such website or resource.
The Service is available only to individuals who are at least 18 years old. You represent and warrant that you are of legal age to form a binding contract, and that all information you submit is accurate and truthful. SmartrMail may, in its sole discretion, refuse to offer the Service to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Service is revoked in such jurisdictions.
SmartrMail reserves the right, at its sole discretion, to modify or replace any of the Terms of Service at any time by posting a notice on the Site or by sending you an email. SmartrMail reserves the right, at its sole discretion to modify, replace, or change, suspend, or discontinue the Service (including without limitation, the availability of any feature, database, or content) at any time with or without notice to you. SmartrMail may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability. It is your responsibility to check the Terms of Service periodically for changes. Your continued use of the Service following the posting of any changes to the Terms of Service constitutes acceptance of those changes.
As a condition of use, you promise not to use the Service for any purpose that is prohibited by the Terms of Service. The Service (including, without limitation, any Content (as defined below)) is provided only for your own use. You are responsible for all of your activity in connection with the Service. For purposes of the Terms of Service, the term "Content" includes, without limitation, any videos, illustrations, animations, graphics, photographs, other visuals, audio, information, data, text, software, scripts, and interactive features generated, provided, or otherwise made accessible by SmartrMail or its partners on or through the Service.
You shall not, as determined in SmartrMail's sole discretion: (i) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (ii) bypass any measures SmartrMail may use to prevent or restrict access to the Service; (iii) share or otherwise allow another's access to your Account, or share the materials downloaded from the Site; or (iv) use manual or automated software, devices, or other processes to "scrub," "crawl" or "spider" any page of the Site.
You shall not in any way: (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Service; (ii) modify, translate, or otherwise create derivative works of any part of the Service; or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
SmartrMail does not guarantee that any Content will be made available on the Site or through the Service. SmartrMail has no obligation to monitor the Site, Service or Content.
SmartrMail does not allow affiliate marketing emails unless explicitly approved by SmartrMail in writing prior to account creation.
SmartrMail does not allow purchased, scraped, or transfered list. All subscribers must be at minimum single opt in and have explicitly opted in to emails from the store you are sending from.
SmartrMail, in its discretion, reserves the right to remove, edit or modify any Content from the Site or Service at any time, without notice to you and for any reason, or for no reason at all.
This is a brief overview of the CAN SPAM Law. Some of these points are addressed for you in the SmartrMail Templates, we ask you to be mindful of these points when developing your Newsletters. Do not use false or misleading header information. Your "From," "To," "Reply-To," and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
You agree that the Service contains Content specifically provided by SmartrMail and that such Content is protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. You shall abide by and maintain all copyright notices, information, and restrictions contained in any Content accessed through the Service. Specifically, SmartrMail, and its logo is a trademark of SmartrMail as well as the text, graphics, templates, website design, software, functionality, etc. is subject to copyright protection by SmartrMail.
SmartrMail grants each user of the Site and/or Service a limited, non-exclusive, non-sublicensable and non-transferable license to use the Content, solely for personal use. Use, reproduction, modification, distribution or storage of any Content for other than expressly allowed use is expressly prohibited without prior written permission from SmartrMail. You shall not sell, license, rent, or otherwise use or exploit any Content in any way that violates any third party right.
SmartrMail may terminate access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your registration as well as forfeiture of fees paid to SmartrMail for the Service.
Strictly no refunds will be issued for breaches in relations to Prohibited Content or SPAM.
If you wish to terminate your User Account or Subscription, you may do so at any time by following the instructions on the Site and/or Newsletter Service. Cancellation of your Account is effective immediately and are not eligible for refunds of any unused balance.
SmartrMail has no special relationship with or fiduciary duty to you. SmartrMail has no control over, and no duty to take any action regarding: which users gains access to the Site; what Content you access via the Site; User Content; what effects the Content and/or User Content may have on you; how you may interpret or use the Content or User Content; or what actions you may take as a result of having been exposed to the Content or User Content. You release SmartrMail from all liability for you having acquired or not acquired Content or User Content through the Site or User Newsletter. While we try to tailor third party content to our audience, the Site may contain, or direct you to websites containing information that some people may find offensive or inappropriate. SmartrMail makes no representations concerning any Content contained in or accessed through the Site, and SmartrMail will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Site, the Service or User Newsletters.
The service is provided "as is" and "as available" and is without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. SmartrMail, and its directors, employees, agents, suppliers, partners and content providers do not warrant that: (a) the service will be secure or available at any particular time or location; (b) any defects or errors will be corrected; (c) any content or software available at or through the service is free of viruses or other harmful components; or (d) the results of using the service will meet your requirements. Your use of the service is solely at your own risk.
Electronic communications privacy act notice: SmartrMail takes every measure to ensure the security of the services, but given the nature of the internet, makes no guaranty of confidentiality or privacy of any communication or information transmitted or stored on the site or any website linked to the site.
You shall defend, indemnify, and hold harmless SmartrMail, its affiliates and each of its affiliate's employees, contractors, directors, suppliers and representatives from all liabilities, claims, and expenses, including reasonable attorneys' fees, that arise from or relate to your use or misuse of, or access to, the Site, Service, Content, your violation of the Terms of Service, or infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. SmartrMail reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with SmartrMail in asserting any available defenses.
In no event shall SmartrMail, nor its directors, employees, agents, partners, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the service: (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, or consequential damages of any kind whatsoever, substitute goods or services (however arising); (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination); or (iii) for any direct damages in excess of (in the aggregate) user's payments for the service. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations and exclusions may not apply to you.
A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
The Terms of Service shall be enforced, governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the United States of America. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Southern District of New York or state courts located in New York, New York.
The Policies are the entire agreement between you and SmartrMail with respect to the Service and use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and SmartrMail with respect to the Site. If any provision of the Policies is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Policies will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
The Policies are personal to you, and are not assignable, transferable or sublicensable by you except with SmartrMail's prior written consent. SmartrMail may assign, transfer or delegate any of its rights and obligations hereunder without consent.
No agency, partnership, joint venture, or employment relationship is created as a result of the Policies and neither party has any authority of any kind to bind the other in any respect.
All notices under the Policies will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.
The User is responsible for all content they upload to their newsletters ("User Content"). We reserve the right to ban any User with repeat infringement notices.
If you feel any material is infringing on your Intellectual Property, please contact at [email protected]
You may contact SmartrMail at the following address: [email protected]. Thank you for being part of SmartrMail. We hope you have fun with it.
We pride ourselves on our high delivery rates so please familiarise yourself with our policy on SPAM and Prohibited Content which can be found here.