Wiliam Pty Limited Standard Software Licence Agreement for sitecast™
This sitecast End User License Agreement ("Agreement") is by and between Wiliam Pty Ltd (“Wiliam”), of 14 Berry Street North Sydney, 2060, and you, and your heirs, assigns, agents and contractors (collectively, "You") and is made effective as of the date of electronic execution. This Agreement sets forth the terms and conditions of Your use of Wiliam´s sitecast email marketing software (the "Sitecast email marketing software") and represents the entire Agreement between You and Wiliam concerning the subject matter hereof. By using Wiliam´s sitecast email marketing software, You acknowledge and agree that You have read, understood, acknowledged and agreed to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies, including, but not limited to, the Universal Terms of Service that Wiliam may establish from time to time.
1. The sitecast software
Wiliam currently provides the sitecast email marketing software to its customers on a monthly subscription model based on email volume. Wiliam shall provide You with the ability to create, manage and maintain a permission-based subscriber list (with optional confirmed opt-in functionality), design and send targeted email campaigns (messages) to subscribers, and access valuable data used to generate reports on campaign and subscriber activity; provided, however, You abide by the terms and conditions set forth herein and in each of Wiliam `s policies and procedures, as may be amended by Wiliam from time to time.
sitecast allows You to:
1. add, access, manage and maintain a collection of subscribers based on email addresses or mobile phone numbers though manual inclusion and group importing of customer database files;
2. create email messages (campaigns) and distribute each campaign on a scheduled basis to recipients based on subscriber list members;
3. access campaign and subscriber data for reporting purposes, including; response rate reporting, membership reports and demographic reports.
Availability of Services
Subject to the terms and conditions of this Agreement, Wiliam shall use commercially reasonable efforts to provide sitecast email marketing software on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement. You acknowledge and agree that from time to time the sitecast email marketing software may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Wiliam may undertake from time to time; or (iii) causes beyond the control of Wiliam or that are not reasonably foreseeable by Wiliam , including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures.
You acknowledge and agree that Wiliam has no control over and has made no representation or warranty about the availability of the sitecast email marketing software on a continuous or uninterrupted basis.
2. Your obligations
By using the sitecast email marketing software, You acknowledge and agree that You are aged eighteen (18) years old or older. The sitecast email marketing software is available only to persons who can enter into legally binding contracts under applicable law.
You also acknowledge and agree that You shall not use the sitecast email marketing software to send or upload the following types of information:
1. personal information about minors without their parent´s consent,
2. pornography or nude pictures,
3. tasteless images,
4. excessively violent material,
5. links to web sites containing the serial numbers for unlocking software illegally,
6. pyramid schemes,
7. chain letters,
8. impersonations of another person,
9. encouraging the use of a controlled substance,
10. selling or promoting products that are unlawful in the location where the email is received,
11. advocating, promoting, or encouraging violence against any person, organization, or the government, or
12. links to web pages containing any of the aforementioned content.
You acknowledge and agree that You have provided accurate, current and complete information in the application process and that You shall notify Wiliam within five (5) business days when any of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Wiliam to determine the validity of information provided by You, shall constitute a material breach of this Agreement. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Wiliam has reasonable grounds to suspect that Your information is inaccurate, not current, false, misleading or incomplete, Wiliam has the absolute right, in its sole discretion, to terminate this Agreement and/or the Sitecast email marketing software and close Your account.
By using the Sitecast email marketing software, You represent and warrant that the information You use in any email campaigns is true, and that the email addresses You include are of subscribers who have granted You direct consent to receive email messages from You. You acknowledge and agree to comply with our Anti-Spam Policy, as well as the provisions of the Can-Spam Act of 2003. You agree that You shall include a valid and correct physical address on every email message, as well as a valid and correct "From" and "Reply-To" address in every email message. Any and all email campaigns shall require You to provide "Opt-In" verification for each subscriber. You acknowledge and agree that Wiliam has the right but not the obligation to copy and/or store Your subscriber content, contact lists, and other information. Wiliam shall not use this information in any way that violates its Privacy Policy, except as permitted or required by law.
Spam
Wiliam recommends that You carefully consider whether the email You are sending out may be considered spam. Generally, if You are not sure that You have received someone´s permission to send them email, then it is probably spam.
Intellectual Property
Except as expressly stated elsewhere in this Agreement, this Agreement does not grant You any rights in the sitecast email marketing software and all rights are reserved by Wiliam. You acknowledge and agree that the sitecast email marketing software and source code, the names and logos of Wiliam and all related product and service names, are the sole and exclusive property of Wiliam and its affiliates. You also agree that the sitecast software will remain on Wiliam servers and that all access to sitecast will be made through a web browser or other transport servies provided by Wiliam.
Storage and Security
At all times, You shall bear full risk of loss and damage to Your sitecast email marketing software. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with Your use of the sitecast email marketing software. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your email lists; (ii) maintain independent archival and backup copies of Your email lists; and (iii) ensure the confidentiality of Your password. Wiliam´s sitecast email marketing software are not an archive and Wiliam shall have no liability to You or any other person for loss, damage or destruction of any of Your content. If Your password is lost, stolen or otherwise compromised, You shall promptly notify Wiliam, whereupon Wiliam shall suspend access to Your sitecast email marketing software by use of such password and issue a replacement password to You or Your authorized representative. Wiliam shall not be liable for any loss that You may incur as a result of someone else using Your password or the sitecast email marketing software, either with or without Your knowledge and/or consent. However, You could be held liable for losses incurred by Wiliam or another party due to someone else using Your sitecast email marketing software or password.
Wiliam shall not disclose the information you place in the sitecast email marketing software without your express permission, in accordance with our Privacy Policy, except and permitted or required by law. Wiliam does not sell personal information. Wiliam shall not disclose or sell the information of Your customers that You store in the sitecast email marketing software, except as permitted or required by law.
3. Fees and Payments
3.1 Fees will be billed on a 30 day cycle in your selected currency (Australian dollar) for Services. The Fees are based on the volume package you select and any excess message fees from the previous billing cycle. You are responsible for reviewing the Fee Schedule from time to time and remaining aware of the Fees charged by Wiliam. The Fee Schedule, for both standard subscriptions and excess message fees, is subject to change at any time at Wiliam’s discretion. Wiliam will attempt to notify you via email prior to the effectiveness of any change to the fee schedule. In many cases, existing subscribers will be able to retain current pricing for 12 months, but that is also at Wiliam’s sole discretion.
3.2 You acknowledge and agree that you are responsible for paying Fees for all email messages sent through Wiliam, regardless of whether delivery of such messages to their intended recipients is prevented or blocked by any third party.
3.3 You acknowledge and agree that you are responsible for any excess message fees charged to your account. These are for emails sent through the Services over and above your allotted monthly subscription volume. These charges will appear on your invoice for the next billing cycle. In the event you cancel your account prior to the next billing cycle, you are still responsible for paying the excess message fees in full. You hereby grant Wiliam authorization invoice you for any such fees.
3.4 In the event that fees are not paid within 14 days of the monthly due date, Wiliam reserves the right to suspend Your use of sitecast until such fees are paid.
4. Responsibilities and Restrictions
4.1 Wiliam will not use your customer list or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties unless required by law. Wiliam will, at times, access your subscriber list to help with the management of it.
4.2 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services ("Software"); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.
Unless you are expressly authorized by Wiliam, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Services or the Software. Violation of these restrictions may result in the termination of this Agreement.
4.3 You acknowledge and agree that the Services and the Wiliam company names and logos and all related product and service names, design marks and slogans, are the property of Wiliam or its affiliates or suppliers (collectively, the "Marks"). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of Wiliam. Your use of the Services confers no title or ownership in the Services, the Software or the Marks and is not a sale of any rights in the Services, the Software or the Marks.
4.4 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement, the federal SPAM ACT and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). You agree you will not access or otherwise use third-party mailing lists in connection with preparing or distributing unsolicited email to any third party. You hereby agree to indemnify and hold harmless Wiliam and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. In addition, you acknowledge and agree that Wiliam has the right to seek damages when you use the Services for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. Although Wiliam has no obligation to monitor the content provided by you or your use of the Services, Wiliam may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
4.5 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates Australian federal, state or other laws that may apply in this jurisdiction or your local area is prohibited.
4.6 In using the varied features of the Services, you may provide information (such as name, address, contact information, and other registration information) to Wiliam. Wiliam may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you. Wiliam will not provide information to companies you have not authorized for that purpose unless required by law or if you are terminated from Wiliam due to unsolicited commercial email being sent from your account.
4.7 For every email message sent in connection with the Services, you acknowledge and agree that the Services may automatically add an identifying footer stating "sent by sitecast" or a similar message or graphic. You agree to cooperate with and provide reasonable assistance to Wiliam in promoting and advertising the Services.
5. Termination
5.1 Unless otherwise specified elsewhere, You may terminate this Agreement at any time by calling or emailing Wiliam. There are no refunds for any fees paid. Termination will only be effective when receipt of your call or email is confirmed.
5.2 Wiliam may terminate this Agreement or the Services, or disable your account, in each case at any time with or without cause, and with or without notice. Wiliam shall have no liability to you or any third party because of such termination or action.
5.3 If your account, at Wiliam’s sole discretion, is classified as inactive for over 150 days, Wiliam has the right to permanently remove your subscriber data. Wiliam will attempt to contact you via email and/or telephone prior to taking any permanent removal actions.
5.4 Wiliam will delete any of your archived data within 30 days after the date of termination. After termination, you are required to process all unsubscribe requests within 20 days of your last email campaign. Wiliam, upon request, will provide the list of unsubscribe requests from your last campaign. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
6. Warranty Disclaimer; Remedies
USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WILIAM DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED "AS IS" AND WILIAM DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your exclusive and sole remedy for any failure or nonperformance of the Services shall be for Wiliam to use commercially reasonable efforts to adjust or repair the Services.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL WILIAM OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, ACCOUNT PROVIDERS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "WILIAM") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF WILIAM SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, WILIAM IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF WILIAM TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
8. Miscellaneous
8.1 Wiliam and you agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
8.2 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
8.3 No partnership, agency, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Wiliam in any respect whatsoever.
8.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
8.5 It is the intention of the parties to this Agreement that this Agreement and the performance under this Agreement, and all suits and special proceedings under this Agreement, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the state of NSW (in Australia), without regard to the jurisdiction in which any action or special proceeding may be instituted.