BrandMail Terms and Conditions
1. Important Notice
This page sets out the terms and conditions upon which The Digital Crowds Pty Ltd, T/A BrandMail. (“We”, “Our” and “Us”) will provide Services to its customers (“You” and “Your”).
This page creates important legal rights and obligation upon Us, as well as You.
By clicking on the “Create Account” or “I Agree” button (see below) you offer to enter into the following terms and conditions with Us. When you click on “Create Account” you will be able to access a fee free account for a trial period.
If you do not agree with these terms and conditions You should not click on the “Create Account” or “I Agree” button.
If You decide to use the Services by clicking on the “Create Account” or “I Agree” button, these terms and conditions become a legally binding agreement between You and Us (“Our Agreement”).
In Our Agreement, the following words and phrases have the following meanings:
API means the BrandMail Application Programming Interface which allows remote access to the Services.
Availability means Your ability to access the Services on the BrandMail Server(s).
Business Day means a day upon which banks are ordinarily open for business in Brisbane, Queensland.
Commencement Date means the date that You clicked on the “Create Account” or “I Agree” button.
Content means data, information, images, and all other content that You put onto the BrandMail Servers.
Direct Debit Agreement means an agreement between us to administer payments by you to us for the purposes of settling any Fees.
Fees Our Fees apply once you have opted to upgrade to a plan. Fees are shown on Our website and are accessible from within the Services and may change from time to time. Any other Fees You and We agree upon at Our prevailing rates for any other Services.
Force Majeure means a circumstance beyond Our reasonable control results in Us being unable to observe or perform on time an obligation in Our Agreement, including:-
a) acts of God, lightning strikes, earthquakes, floods, storms, explosions, fires, power supply disruptions (howsoever caused), internet downtime and any natural disaster;
b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and
c) industrial action or strikes.
Harmful Code means viruses, worms, trojan horses, spyware, malware, backdoor, and other computer programs and software code that harm a computer or a computer program, or operate in some other harmful or destructive way to hardware, software, data, or communications systems.
ISP means Internet Service Provider being a company that offers its customers access to the Internet
Online Self Help Knowledge Base and Support Portal means the online help application forming part of the Services.
Post Paid Customer means You have been issued with a BrandMail debtor account where Your invoices will be raised and Your subsequent payments will be recorded against.
Programming Services means computer programming services the scope of which is agreed upon in writing from time to time between BrandMail and You.
RRP (Recommended Retail Price) means all fees exclusive of local taxes (where applicable).
Services means any product or service provided by Us to You pursuant to this Agreement.
SMS Credits are required to send an SMS message within the Services. SMS Credits are pre-paid and non-refundable.
Support Services means the Support and Training Services We provide to You as described on Our website.
System Maintenance Time means the time that the BrandMail Servers are inaccessible for reasons of systems maintenance, improvement, or upgrading.
Term means the term of Our Agreement, from the Commencement Date, until Our Agreement is terminated in accordance with clause 4.
Training Services means the personal training services the scope of which is agreed upon in writing from time to time between BrandMail and You.
BrandMail Server(s) means the hardware infrastructure where We host the Services.
Reseller means an authorised individual, partnership or company who has been duly authorised to resell the Services to their clients (Sub Accounts) through access being provided to a ‘Reseller Parent Account’.
Intellectual Property means all intellectual property rights, including without limitation all BrandMail logos, business names, copyrights, patents, products, Services, source codes, rights in software and technology designs, registered designs, trademarks, agreements, training, marketing and support materials and the right to have confidential information kept confidential
3.1 In this Agreement, unless the contrary intention appears:-
a) words in the singular number include the plural and vice versa;
b) words importing a gender include any other gender;
c) a reference to a person includes bodies corporate and unincorporated associations and partnerships;
d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
e) a reference to a party includes its successors and assigns (where permitted);
f) a reference to the any schedule includes a reference to any part of that schedule which is incorporated by reference;
g) the recitals to this Agreement do not form part of the Agreement;
h) monetary references are references to Australian currency.
3.2 If any term, covenant, clause or condition of this Agreement, or the application of it to any person or circumstance, is deemed to be invalid or unenforceable, the remaining terms, covenants and conditions will not be affected and will be valid and enforceable.
4. Term and Termination
4.1 Our Agreement commences on the Commencement Date.
4.2 Our Agreement continues until it is terminated by either party. If by You, using the online delete capability located within the Services, in writing or via email to Us. If by Us, where practical, giving prior written notice to You terminating Our Agreement. Following termination Your Data will be deleted within the confines of our Backup Cycles. No residual credit will be generated by termination or closing your account.
4.3 You or We may terminate Our Agreement at any time, without giving any reason for termination.
4.4 Notwithstanding the termination of Our Agreement, You must pay all amounts owing to Us for Services provided up to the time of termination which date is determined by clause 4.2.
4.5 Subject to clause 4.4, after the date of termination, any Content required to be extracted, where possible, from the Services will attract additional Fees.
4.6 Our agreement endures should you opt to ‘close your account’ within the service. The ‘close your account’ feature is specifically provided to allow you to re-activate your account at a later date. Should you however not re-activate your account within 12 months, BrandMail reserves the right to treat your account as deleted and therefore applying clause 4.2 – 4.4.
5.1 We will promptly provide to You all necessary login codes to access the Services on the BrandMail Servers.
5.2 For the Term, We will provide the Services to You by enabling You (through the login codes notified by Us to You) to access the Services in accordance with Our Agreement.
5.3 You acknowledge that internet servers and links are susceptible to hacking, crashes and down time.
5.4 Subject to a Force Majeure Event, and to System Maintenance Time, We will ensure (by ping test) that the Servers are available through the internet, 24 hours per day, for at least 99.8% of the time.
5.5 We do not warrant any response rate or download time in relation to the Services.
5.6 Keeping the Services up and running with as little interruption to your access is extremely important for both of us. We go out of our way to ensure whenever we need to perform maintenance we firstly explore ways in which this can be done without any interruption to the Services. In the event we cannot avoid disruption, We may, at Our own discretion, temporarily suspend the Services for the purpose of system repair, maintenance or improvement.
5.7 When it is reasonably practicable under the circumstances, We will provide You prior notice of any System Maintenance Time, the time of its commencement, and likely duration.
5.8 In the event of any service outage, We will restore the Services as soon as is reasonably practicable.
5.9 You acknowledge that it is impossible to maintain flawless security, but We will take reasonable steps to prevent security breaches in Your server’s interaction with the BrandMail Servers.
5.11 BrandMail will comply with Chapter 2 of the Information Privacy Act 2009.
5.12 You acknowledge that any Content uploaded for public view in the Online Knowledge Base is free of copyright and We may edit, redisplay or remove that Content at Our sole discretion at any time.
5.13 As an email service provider with thousands of customers just like you, we feel it’s our duty to protect You and Us from any spam related activity. Where the Services are used for spam we get blocked by major ISPs which directly affects Your ability to send emails. So here are a few things we do to protect us all:
a) We, our employees and contractors may view, copy and transmit copies of your emails to help build monitoring tools, educational material, content for training courses and to spot problem accounts.
b) We and Our employees monitor bulk uploading of contacts and individual accounts that result in high bounce rates. We may view email addresses to look for patterns consistent with bought lists, lists procured by prohibited methods, or lists that can cause damage to Our and Your reputation. In the event that we uncover this type of activity, We reserve the right to suspend or terminate Your access to the Services.
c) BrandMail monitors spam notifications, and where a threshold is breached, we take appropriate action which may include deactivating the senders account. To avoid the negative consequences associated with spam related activity, we recommend you take the necessary steps as outlined in Clause 6. Your Responsibilities
6. Your Responsibilities
6.1 You represent and warrant that Your use of BrandMail will comply with all applicable laws and regulations. You’re responsible for determining whether Our Services are suitable for You to use in light of any regulations like HIPAA, GLB, EU Data Privacy Laws, or other laws. You may not use Our Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce. You must comply with the SPAM Act 2003, CAN SPAM Act or any other laws that apply to electronic messaging. If you’re subject to any such regulations, laws or acts and You use Our Service, then we won’t be liable if Our Service doesn’t meet those requirements.
If You’re located in the European Economic Area (EEA) or send to anyone in the EEA, you represent and warrant that in creating your Email contact list, sending Emails via BrandMail, and collecting information as a result of sending Emails, you:
2. Have complied, and will comply, with all regulations, as well as data protection, electronic communication, and privacy laws that apply to the countries where You’re sending any form of email through BrandMail.
3. Have collected, stored, used, and transferred all data relating to any individual in compliance with all data protection laws and regulations. You have the necessary permission to allow BrandMail to receive and process data and send communications to that individual on Your behalf.
4. Agree to indemnify and hold us harmless from any losses, including legal fees, that result from your breach of any part of these warranties.
5. Have agreed to our Data Processing Schedule located in your Account and can also be found here https://brandmail.com.au/gdpr-data-processing-schedule/
6.2 You must ensure the security of Your login codes to the Services, and that only properly authorised persons have access to those codes.
6.3 You must pay the Fees in relation to the Services accessed with Your login codes by any person to whom You have provided Your login codes or who obtained those login codes from You, whether authorised by You or not.
6.4 You will procure that Your employees and other persons authorised by You to access the BrandMail Servers comply with Our Agreement.
6.5 You agree that You are solely responsible for implementing Your own procedures to satisfy Your own requirements for accuracy of data input and output and Content, and for maintaining a means external to Us for the reconstruction of any of Your lost data or Content.
6.6 You warrant that the Content will not infringe the copyright or other intellectual property rights of another person.
6.7 You must not disseminate through the Services any Content that is:
a) abusive, harassing or obscene,
c) illegal in Australia,
d) illegal in any country to which the dissemination occurs,
e) Harmful Code, or,
f) defamatory or offensive.
6.8 When sending emails to a list You should ensure that each recipient on Your list has given You permission to receive emails from You. When You send emails to people who have not given You permission, ISPs may block future emails from Your company. To help protect your deliverability You agree to never upload into the System or cause to send an email to any:
a) Purchased lists
b) Rented lists, or
c) 3rd party lists (e.g. one your friend gave you)
6.9 Some industries generate larger than acceptable bounces and spam complaints. As a consequence this puts at risk the entire deliverability of our Services. As we are measured on providing You with the highest possible deliverability rates, the following industries or providers of content and services that fit into these categories are not permitted to use our Services:
a) Get rich quick schemes
b) Illegal substances
d) List brokers
e) List rental services
f) Multi-level marketing
g) Affiliate programs
There are other industries that are associated with spam and generating large amounts of complaints. You probably know yourself whether You fit into this category. If so, We do not judge Your business. However, We cannot risk Our deliverability and therefore cannot provide Your business Services. If You fit into this category We urge you to look elsewhere for sending Your emails.
6.10 You indemnify Us from and against any loss or damage (including loss of profits) that We may suffer arising from:
a) Any breach by You of the terms of Our Agreement,
b) Any misuse of Your login codes by You, or by any person whose access to Your login codes was from You, or Your failure to maintain the security of Your login codes, including any misuse that results in Content loss or misuse or Harmful Code upon the BrandMail Servers, or
c) Any breach by You of Our Agreement or any misuse of Your login codes resulting in any IP Address becoming subject to blacklisting (for example by SORBS), including the cost (approximately $150 per IP Address) to Us of remedying any blacklisting.
6.11 To ensure you can access our Services in the quickest and most efficient manner, it’s important You do not cause an overload through improper usage, including but not limited to the use of automated methods to extract data from the Services (not including the API).
6.12 If You integrate with Our Services using the API, You must use efficient programming methods that will not cause too many requests to be made over a short period of time. If We feel Your usage of Our API is unacceptable, We reserve the right to throttle Your API connections or suspend or terminate Your access to the Services. Please refer to the API website for the most efficient methods to use when integrating with the API.
6.13 You are responsible for Your and any of Your clients Content and shall be responsible for maintaining a backup copy of the Content.
6.14 You agree not to use the Service for any other purpose than that for which it is intended.
7. Support Services
7.1 We will provide the Support Services during usual business hours between 8.30am and 5.00pm on Business Days.
7.2 Support Services will be provided in the first instance by on line help accessible within the Services, in the second instance by email, and in the third instance by telephone (contact details available on Our webpage).
7.3 Free Support Services are limited to “How To” questions on product usage. Other Support Services may attract fees. At all times You will be notified prior to any fees being charged to You.
8. Other Services
8.1 You and We may agree in writing that We will undertake Programming Services, Training Services, or specific Support Services.
8.2 Any such agreement in writing will set out
a) the scope of the work to be undertaken,
b) the remuneration to be paid by You to Us, and
c) the timeframe for the work to be undertaken.
9.1 You must pay the Fees to Us inclusive of the RRP (plus any applicable taxes for Australian Based Customers) as specified in Our invoices.
9.2 Australian based clients will be provided with an invoice complying with the A New Tax System (Goods and Services Tax) Act 1999.
9.3 If You are using a prepaid service all invoices are due and payable when issued. You are required to record a credit card on Your account to use this service. We will direct debit Your credit card in accordance with Clause 9.6.
9.4 If You are a Post Paid Customer You must pay invoices within the time notified upon Our invoices. Alternatively, where You have provided credit card details we will direct debit Your credit card in accordance with Clause 9.6.
9.5 Should Your account become overdue or Your prepaid direct debit fail, Your Service functionality will be reduced until payment is received. You will still be able to access the Services to update Your credit card details. Should Your account remain unpaid for 30 days we reserve the right to deactivate Your account in accordance with Clause 4.
9.6 By recording Your credit card on Your account You authorise for your credit card to be credit/debit, with any associated invoices, fees, chargebacks, corrections and negative settlements created in relation to the provision of the Service on the invoice issue date or shortly thereafter.
9.7 You are responsible for keeping Your credit card details up to date and that there are sufficient funds available on Your credit card for Us to obtain payment in accordance with this Agreement. You allow Us the option of contacting You in the event of a direct debit failure, and as a reminder that Your credit card details will be shortly expiring.
10. Exclusions and Limitations of Liability
10.1 You use the Services, including the Services entirely at Your own risk.
10.2 You acknowledge that We have not made any representation or warranty that is not expressly contained in Our Agreement.
10.3 You do not rely upon any statement or representation by Us or on Our behalf that is not expressly contained in Our Agreement.
10.4 You acknowledge that We have not made any warranty or representation as to
a) the suitability of any Service for any purpose or any particular purpose;
b) whether any Service is of merchantable quality; or
c) whether any Service will be free of errors or bugs.
10.5 We exclude any liability for any Harmful Code that You may download from Our website.
10.6 We shall have no liability to You arising from any system downtime, any System Maintenance Time, or any Force Majeure Event, and You are not entitled to any setoff, discount, refund or credit arising from any of the foregoing.
10.7 Our maximum liability to You for any loss or damage whatsoever shall be the re-performance of the Services.
11. SMS Services
11.1 To send SMS messages You will need to pre-purchase SMS Credits at the listed RRP price on our Website (plus any applicable taxes for Australian Based Customers) as specified in our invoices.
11.2 The maximum number of characters per SMS sent is 160 characters which is equal to one SMS Credit. If You send an SMS containing more than 160 characters, you will require the usage of an additional SMS Credit for each additional 160 characters.
11.3 An SMS Credit is deemed to have been used once the SMS have been sent from the Services to Our SMS gateway on Your behalf.
11.4 We do not warrant SMS delivery, which You recognise may be impacted by many factors beyond Our control, such as ‘phone turned off’ or ‘disconnected’.
12. Reselling The Services
12.1 This clause is only applicable to authorised resellers. We may choose to authorise You to resell Our services. If You are authorised You will be given access to a Reseller parent account (Parent Account) within the Services.
12.2 You will be able use the Services for Your own marketing purposes and also be able to grant access to Your clients (Sub Accounts) which You can add and manage from within the Parent Account.
12.3 You must prepay to us Your own and any Sub Account fees You have added to Your account inclusive of the Wholesale Price (plus any applicable taxes for Australian Based Customers) as specified in Our invoices.
12.4 Should You choose the ‘client can pay’ option, on the 1st business day of each month We will transfer to Your nominated bank account any mark up owed to You minus any costs and any other outstanding fee obligations You may have with Us. No mark up will be transferrable to You if Your Sub Account payment remains outstanding. Your Sub Accounts will receive an invoice from ‘mailsnd.com’ or other domains as used from time to time for sending invoices and are due and payable when issued, they will be direct debited in this name. We will direct debit their credit card in accordance with Clause 9.6.
12.5 As you are using a prepaid service all invoices are due and payable when issued. We will direct debit Your credit card in accordance with Clause 9.6.
12.6 Should Your direct debit fail, certain functionality within the Services will be reduced for both You and Your Sub Accounts until payment is received. You will still be able to access the Services to update Your credit card details. Should Your payment details not be updated within 30 days We reserve the right to deactivate Your account in accordance with Clause 4.
12.7 Where a Sub Accounts pays Us and their direct debit fails only the Service within that Sub Account will be reduced until payment is received. They will still be able to access the Services to update their credit card details. Should their payment details not be updated within 30 days we reserve the right to deactivate their account in accordance with Clause 4.
12.8 You can set Your own pricing for Your Sub Account, however it should not be below the wholesale rate charged by Us to You for that service.
12.9 As the Reseller You are responsible for all Support Services required by Your client. We will provide Your Parent Account representatives with Support Services as outlined in Clause 7.
a) We will identify any Marketing, Support and Training materials which You can re-purpose during the life of this Agreement as Your own, otherwise normal copyright requirements must be respected with any content You receive from Us.
12.10 Your Sub Accounts are required to act in a manner consistent with the obligations outlined in Our Agreement with You. Therefore You must enter into a contracted agreement with Your Sub Accounts which at a minimum is consistent with the requirements of this Agreement.
12.11 If this Agreement is Terminated We reserve the right to offer continuity of Service to the effected Sub Accounts.
a) In the event of termination You will immediately cease to use any of Our Intellectual Property You have obtained during, or prior to, this Agreement. If requested by Us You will agree to return or dispose of any Intellectual Property owned by Us that is in Your possession.
12.12 Nothing in this agreement will constitute or be construed as constituting a partnership, joint venture or contract of employment between You and Us. The Reseller is an independent contractor without authority to bind Us contractually or otherwise and is not an agent or employee of Us by virtue of this Agreement.
12.13 You do not have the capacity to assign or transfer this agreement without the express written permission from Us.
12.14 Our maximum liability to You (the Reseller), or any of Your Sub Accounts, for any loss or damage whatsoever, shall be the re-performance of the Services. You also agree to indemnify Us for all costs (of any type) arising from the use of Our Services by You or Your Sub Accounts.
12.15 If You are an existing Reseller, Your Partner Agreement continues to operate as normal for You and Your existing Sub Accounts, where any conflict exists, the terms of Your existing Partner Agreement shall prevail. All new Sub Accounts will be bound by this Agreement only.
13.1 We will maintain the Content in confidence, and will not disclose the Content without Your prior written consent.
13.2 Clause 11.1 does not apply to the extent that We have a legal obligation to disclose the Content.
13.3 We will not sell the Content to any person.
13.4 You acknowledge that some of Your Content (such as email addresses in your database/s) may at the same time be part of the content of Our other customers.
13.5 You acknowledge that We have an obligation to report any illegal act by You, and accordingly We are under no obligation of confidentiality in relation to any such illegal act by You.
14. Intellectual Property
This agreement does not grant you a licence of the Services or supporting documentation. You will not make any attempt to reverse engineer, discover, reproduce, modify or copy in any form Our Intellectual Property. In the event of expiry or termination of Our Agreement, You will cease to use any of Our Intellectual Property You have obtained during, or prior to, this Agreement.
15.1 We will promptly notify each other in writing of any dispute in connection with Our Agreement.
15.2 Upon the written notification of a dispute, You and We shall use our best endeavours to resolve the dispute in good faith, and expeditiously.
15.3 If a dispute has not been resolved within 5 Business Days, You and We will refer the matter to our respective Chief Executive Officers (or a senior person delegated by a Chief Executive Officer), who shall use their best endeavours to resolve the dispute in good faith, and expeditiously.
15.4 If the dispute has still not been resolved with a further 5 Business Days, You and We will use our best endeavours in good faith to within a further 5 Business Days agree upon an alternative dispute resolution process (such as mediation, arbitration, conciliation, or expert determination) to resolve the dispute, and shall in good faith implement that alternative dispute resolution process.
15.5 Neither You nor We may commence legal proceedings against the other until You and We have complied with clauses 15.1 to 15.4.
15.6 Clause 15.5 does not apply to any urgent interlocutory relief.
16. Variation of our Agreement
16.1 We may vary any term of Our Agreement at any time. Notification of any variation will be posted within the Services.
16.2 The variation takes effect 30 days after notice of the variation is posted, expected;
a) where there is a legal risk or we are compelled by law to update Our Agreement with you immediately or within a specified time.
16.3 Except for clause 16.2 a), if You do not agree to be bound by the variation, You may by logging into the Services, terminate this Agreement before the expiration of that 30 day period.
17.1 We may assign or transfer this Agreement to any other entity at Our sole discretion.
18. Service of Notices
18.1 Any notice (including a notice under clause 14) may be served by delivery to, or sending it by post or facsimile to the party to be served, or by sending it by email:
a) if to Us, send to BrandMail or any other email We may post, or
b) if to You, to an email address notified by You to Us in Your management of Your online BrandMail account.
18.2 A notice that is posted shall be deemed received seven days after the date of posting.
19. Governing Law
19.1 Our Agreement is governed by and to be construed according to the law of Queensland.
19.2 You and We irrevocably submit to the non-exclusive jurisdiction of the courts of Queensland.