Effective for all customers who signed up until 2019-02-06, starting: November 1, 2017 (view archive)
Through the Omnisend software product, Soundest LLC (ID 302530363) and/or affiliated entities (“Omnisend”, “we” or “us”) provide business owners with a variety of tools and resources to enable them to collect visitor and customer email addresses, shopping data and other information to create, launch, and manage online email campaigns (the “Services”).
As a customer of the Service or a representative of an entity that’s a customer of the Service, you’re a “Member” according to this agreement (or “you”).
1. Services and Support
1.1. Omnisend service is offered through the URL www.omnisend.com (the “Website”).
1.2. Modern browser such as Internet Explorer 11+, Firefox 30+, Safari 6+ or Google Chrome 40+ is required in order to use the Services. Additionally, a stable connection to the Internet is required. The Services may work in a limited manner on other web browsers, but the Services were not designed for use on web browsers other than those recommended above.
1.3. It is understood that Omnisend makes no guarantee that HTML messages will be rendered properly on all recipients’ email programs, due to the wide variety of HTML generation (viewing) tools available.
2.1. In order to use Omnisend, you must 1) be at least eighteen (18) years old and able to enter into contracts; 2) complete the registration process; 3) agree to the Terms including our Anti-Spam Policy; and 4) provide true, complete, and up to date legal and contact information. If you sign up for Omnisend on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.
2.2. By using Omnisend, you represent and warrant that you are business owner and/or represent business enterprise and will use Omnisend only for the business purposes.
2.3. By using Omnisend, you represent and warrant that you meet all the requirements listed above, and that you won’t use Omnisend in a way that violates any laws or regulations. Omnisend may refuse service, close accounts of any users, and change eligibility requirements at any time.
3.1. The Term begins when you sign up for Omnisend and continues as long as you use the Service. Clicking the button and entering your username means that you’ve officially “signed” the Terms.
4. Account and Password
4.1. The Services are provided to You via dedicated account on the Website. Every online store is linked to a separate account.
4.2. You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to, whether or not you authorized the use. You’ll immediately notify us of any unauthorized use of your accounts.
4.3. We’re not responsible for any losses due to stolen or hacked passwords.
4.4. We don’t have access to your current password, and for security reasons, we may only reset your password.
5. Fees, Payments and Refunds
5.1. We provide both free (“Free plan”) and paid (“Standard plan” and “Pro plan”) Services. Free plan and paid services are provided on per account basis.
5.2. All charges for the paid services (“Charges”) are posted on the Website. You agree to pay for paid services according to these Terms.
5.3. Paid services is a prepaid month-to-month subscription service with monthly or annual payments. The subscription automatically renews at the end of the paid for period unless explicitly cancelled before the start of new billing period (see clause 5.7).
5.4. Monthly payments are due on the same date, or the closest date in that month, to the day you signed up with us or made your first payment. In case of unsuccessful charge to credit card, we’ll automatically suspend paid features of your plan (downgrade to Free plan) until monthly or annual payment can be processed.
5.5. If you go over your sending limit and reach another pricing level, then you’ll have to pay at the higher level on or before the next payment date.
5.6. As long as you’re using paid services, you’ll provide Omnisend with valid credit card information and authorize us to deduct the monthly charges against that credit card. You’ll replace the information for any credit card that expires with information for a different valid credit card. Anyone using a credit card represents and warrants that he or she is authorized to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected. If, for some reason, we’re unable to process your credit card order, we’ll try to charge 3 more times in the next few days. Consecutive charge retries does not change and/or extend your monthly or annual renewal date.
5.7. You may cancel your subscription to paid services at any time. After cancellation, no further amounts will be charged to your credit card. You have to explicitly cancel your subscription to paid services on the Website or by writing to [email protected] before the next payment date or your subscription will auto renew and you will be charged your next subscription fee. In case of auto renewal, all paid services will be provided to you for the next month including data import, data storage, data manipulation and access to all campaign tools. If you have more than one account with Omnisend, you have to cancel each account separately.
5.8. We provide refunds under these circumstances only: a) customer explicitly cancelled his account as mandated in the clause 5.7 but the cancellation request was not processed by us in time; or b) a system-wide malfunction prevented the system from rendering enabled paid services to customer for the majority of paid for period and customer reported the incident(s) with evidence to Omnisend support team during the paid for period; or c) customer was not actively using any features: collecting email addresses with signup forms and/or sending any emails with the system in the last month. In the latter case customer(s) will be refunded only for the last paying cycle. Customer(s) won’t be entitled to a refund from Omnisend under any other circumstances.
5.9. We may introduce new or cancel existing paid services and features at any time and change pricing from time to time. You will be informed about any of the changes at least one month in advance via email and/or on our Website.
5.10. All prices for Services are calculated in US dollars and your credit card will be charged in US dollars. Prices in other currencies are provided for information purposed only and might fluctuate due to exchange rate changes.
5.11. You are responsible for any taxes imposed on the services provided under this agreement except in cases where EU legislation requires us to collect the taxes.
5.12. We reserve the right to shut down campaigns at any time if we feel that you are abusing our system in any way. If we determine that you have abused the system in any way, and we shut down your account, we do not provide refunds for unused services.
5.13. Reselling of the Services to third parties is permitted only if you sign reseller (partner) agreement with Omnisend.
6. Cancellations and Inactivity
6.1. You or Omnisend may terminate this Agreement at any time and for any reason by giving Notice to the other party. Termination of the agreement means that you will lose access to your account.
6.2. We may at any time terminate our agreement with you if (a) you have breached any provision of these Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms); (b) we are required to do so by law (for example, where the provision of the Services to you is, or becomes, unlawful); (c) the provision of the Services to you by us is, in our opinion, no longer commercially viable; or (d) we have elected to discontinue the Services (or any part thereof).
6.3. Once terminated, we may permanently delete your account and all the data associated with it, including your emails from our Website.
6.4. If you do not log in to your account for 4 or more months, we may treat your account as “inactive” and permanently delete the account and all the data associated with it.
6.5. If Omnisend terminates this Agreement because you breached this Agreement or any applicable laws, no refund will be issued even if you have unused, prepaid amounts for Services under this Agreement.
6.6. For all accounts, Omnisend may charge an account Reactivation fee should an account need to be Reactivated by a customer after an account has become de-activated due to breach of this Agreement and/or long period of inactivity.
7.1. This is an Agreement for the Services, and you are not granted a license to any software under this Agreement (except to the extent required for you to use the Services). Except to the extent that applicable laws prevent Omnisend from doing so, you will not, directly or indirectly: (i) 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”); (ii) remove any proprietary notices or labels from the Services or any Software; reproduce or copy the Software or the Services or any part thereof; (iii) modify, translate, or create derivative works based on the Services or any Software; (iv) copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software; (v) create any derivative product from any of the foregoing; (vi) without our express written permission, introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Services; (vii) perform or publish any performance or benchmark tests or analyses relating to the Services or the use thereof; or (viii) allow third parties to gain access to the Services or to otherwise use the Services in any manner other than as expressly permitted in this Agreement.
7.2. The Services shall be used for your internal business purposes only and you shall not use the Services or any Software for the benefit of a third party. If you intend to use the Services as an agency for the benefit of your client, please contact Omnisend in advance about it.
7.3. You acknowledge and agree that the Services, the Software, the Company names and logos and all related product and service names, design marks and slogans, and all other material comprising the Software or the Services, are the property of the Company or its affiliates or suppliers (collectively, the “Marks”). Unless stated otherwise, all Marks are protected as the copyright, trade dress, trademarks and/ or other intellectual properties are owned by Omnisend or by other parties that have licensed their material to Omnisend. 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 Omnisend. 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. All ownership rights remain in Omnisend or its third party suppliers, as the case may be.
7.5. You are solely responsible for any content and other material that you submit, publish, transmit, or display on, though, or with our Services (“Content”). You grant us a non-exclusive, worldwide, royalty-free and fully paid license to use the Content, as necessary, for purposes of providing the Services to you and other users of the Services. All rights in and to the Content not expressly granted to us in this Agreement are reserved by you.
7.6. You acknowledge and agree that any comments, ideas and/or reports provided to Omnisend (“Feedback”) shall be the property of Omnisend and you hereby irrevocably transfer and assign to Omnisend such Feedback, and all associated intellectual property rights, provided however that you shall be free to use such Feedback in the ordinary conduct of your business.
8.1. In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to Omnisend. Omnisend 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 Services, or to communicate separately with you.
8.3. We may view, copy, and internally distribute content from your Emails and account to create algorithms and programs (“Tools”) that help us spot problem accounts. We use these Tools to find Members who violate these Terms or laws.
8.4. Omnisend will not use any of your subscriber lists or any other customer information for any other purposes than those related to the Services. Your customer information will not be shared with any other parties.
9.1. You must not use the Services to distribute illegal contests, pyramid schemes, chain letters, multi- level marketing campaigns, or any other prohibited material.
9.2. You must not use the Services to send email campaigns that link to or display nudity, obscene content, gambling related content, illegal software, viruses, sales of social media followers or to distribute any other content that we deem inappropriate.
9.3. You must not use the Services for the sending of unsolicited email (sometimes called “spam”). See our Anti-Spam Policy (which forms part of this Agreement) for further information.
9.4. You agree to import, access or otherwise use only permission-based lists. Purchased and rented mailing lists must not be used. You cannot mail to distribution lists, newsgroups, or spam email addresses. Omnisend has the right to automatically filter your email list at the time of import or sending out campaign to temporarily (“quarantine”) or permanently exclude suspicious email addresses from being used.
9.5. The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates EU or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights. If you violate any of these rules, then we may suspend or terminate your account.
9.6. You may only use our bandwidth for your Omnisend emails. We provide image hosting only for your email campaigns, so you may not host images on our servers for anything other than your email campaigns (like a website). We may throttle your sending or connection through our API at our discretion.
9.7. You represent and warrant that your use of Omnisend 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. If you’re subject to regulations (like HIPAA) and you use our Service, then we won’t be liable if our Service doesn’t meet those requirements.
9.8. 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 distribution list, sending Emails via Omnisend, and collecting information as a result of sending Emails, you:
- B. 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 Omnisend.
- C. 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 Omnisend to receive and process data and send communications to that individual on your behalf.
- D. Agree to indemnify and hold us harmless from any losses, including attorney fees that result from your breach of any part of these warranties.
10. Limitation of Liability
10.1. To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Website and the Services, including any downloads from the Website. We and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages. Our total liability for all claims made about the Service in any month will be no more than what you paid us for the Service the month before.
11. No Warranties
11.1. To the maximum extent permitted by law, we provide the material on the Website and the Service as is. That means we don’t provide warranties of any kind, either express or implied, including but not limited to warranties of merchantability and fitness for a particular purpose.
11.2. From time to time down-time, either scheduled or unscheduled, may occur. Omnisend will work within reason to ensure this amount of down-time is limited. Omnisend will not be held liable for the consequences of any down-time.
11.3. Omnisend cannot guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of all files associated with the Services, and you release Omnisend entirely of all responsibility for any consequences of its use.
You agree to indemnify and hold us and our Team harmless from any losses (including attorney fees) that result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. You also agree to indemnify and hold us harmless from any losses (including attorney fees) that result from third-party claims that you or someone using your password did something that, if true, would violate any of these Terms.
13. Liquidated Damages
In some cases, a breach of these Terms could cause damages, but proving the actual damages would be impossible. These cases will result in the corresponding liquidated damages, which are a reasonable pre-estimate of the damages:
- A. If you send Emails that violate anti-Spam laws and/or our Anti-Spam Policy, then the liquidated damages will be 1000 EUR.
- B. If you send Emails with inappropriate content as listed in this Terms, then the liquidated damages will be 800 EUR.
- C. If you host images for anything other than your Emails, or use our resources in any way that’s not permitted by these Terms, then the liquidated damages will be 500 EUR.
14. Equitable Relief
If you violate these Terms then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
We and our Team aren’t responsible for the behavior of any advertisers, linked websites, or other Members.
You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.
17. Choice of Law
18. Force Majeure
We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third-party internet service providers.
Even if this Agreement is terminated, the following sections will continue to apply: Rights, Compliance, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.
If it turns out that a section of this Agreement isn’t enforceable, then that section will be removed or edited as little as necessary, and the rest of the Terms will still be valid.
The headers are provided only to make this agreement easier to read and understand.
22. Amendments and Waiver
22.1. Amendments or changes to these Terms won’t be effective until we post revised Terms on the Website. That aside, additional terms may apply to certain features of the Service (the “Additional Terms“). The Additional Terms will be considered incorporated into these Terms when you activate the feature. Where there’s a conflict between these Terms and the Additional Terms, the Additional Terms will control. If we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.
22.2. If you have written agreement (the “Written Agreement”) with us or our authorized reseller to use Omnisend and there’s a conflict between these Terms and the Written Agreement, the Written Agreement will control. You are bount by these Terms in all matters that are not covered in the Written Agreement.
23. Notification of Security Breach
In the event of a security breach that may affect you or anyone on your Email distribution lists (each a “List”), we’ll notify you of the breach and provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that information to anyone on your Lists, you’ll promptly do it.
Any notice to you will be effective when we send it to the last email or physical address you gave us or posted on our Website. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn. Legal Department, Soundest LLC, Verkiu str. 25C, Vilnius, Lithuania, or any addresses as we may later post on the Website.
25. Entire Agreement