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Terms of use

Effective starting: January 12, 2020 (view archive)

Through its software product, Omnisend LLC (ID 302530363) and/or its Affiliates (as defined below) (“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, text messages and push notifications (the “Services”).

The Services are provided subject to these terms and conditions (these “Terms”), any ordering document executed by and between Omnisend and Customer (as defined below) that, by its terms, governs Customer’s use of the Services (each, an “Order Form”), our Anti-Spam Policy, our Privacy Policy, and any other guidelines, rules or operating policies that Omnisend may establish and post on the Website (as defined below) from time to time (collectively, the “Agreement”). The Agreement defines the terms and conditions under which you are allowed to use the Services and how we’ll treat your account while you are a Member (as defined below). Customer hereby agrees Omnisend may provide some or all Services through its Affiliates (as defined herein). For purposes of this Agreement, an “Affiliate” means a third party controlled by, controlling, or under common control with, a party; and “control,” in relation to any entity, means the ability to vote more than fifty percent (50%) of the voting securities of that entity or otherwise the ability to direct the management and policies of that entity.

As a customer of the Services, you’re a “Member” according to this agreement (or “Customer,” 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 Microsoft Edge, 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 marketing messages will be rendered properly on all recipients’ client programs like email readers, due to the wide variety of delivery gateway and generation (viewing) tools available.

1.4. Subject to the terms and conditions in the Agreement, during the Agreement Term (as defined below), Omnisend hereby grants you limited, non-exclusive, non-transferable, non-sublicensable, Territory (as defined herein)-wide, and revocable rights to access and use the Services solely for your internal business purposes. You agree your subscription to access and use the Services is not contingent on delivery of any future functionality or features or the delivery of any other services. For purposes hereof, “Territory” means, with respect to Customers located in the U.S., the entire world, excluding countries that are the subject of embargoes or sanctions by the U.S., or with respect to which trade is otherwise prohibited by any instrumentality of the U.S; and, for Customers located outside the U.S., the entire world.

1.5. If Omnisend will perform professional services (the “Professional Services”) for you pursuant to the Agreement, you understand Omnisend’s ability to meet the deadlines in the Agreement related to Professional Services are conditioned on your timely response to Omnisend’s requests for information and other inputs. You agree Omnisend is not in breach of the Agreement for delays caused by your failure to provide timely responses, and those delays do not affect your payment obligations under the Agreement.

 

2. Account

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 and conditions set forth in the Agreement; 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 herein, 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. Agreement Term

3.1. The term of the Agreement (the “Agreement Term”) begins when you sign up for Omnisend or first use the Services and continues as long as you use the Services. Clicking the button and entering your username means that you’ve officially “signed” these Terms.

 

4. Account and Password

4.1. The Services are provided to Customer via a dedicated account on the Website, pursuant to which Customer will create a unique user-id and password. Every online store is linked to a separate account.

4.2. You’re responsible for keeping your user-id and password confidential. You’re also responsible for any use of 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. You are solely responsible for any losses, damages, fees or liability due to your lost, stolen, hacked or otherwise compromised user-ids and 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 plans (e.g., Standard plan, Pro plan, and Enterprise 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, or otherwise set forth in the Agreement. You agree to pay for paid services according to these Terms. Charges paid by Customer are non-refundable.

5.3. The Services are a prepaid subscription service with monthly (30 days) or annual (360 days) payments. Except to the extent otherwise set forth in an Order Form, the subscription automatically renews at the end of the paid period unless explicitly cancelled before the start of new billing period.

5.4. Monthly payments are due every 30 days starting from your first payment (or 360 days in case of an annual plan). In case of an 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.

5.6. As long as you’re using paid services, you’ll provide Omnisend’s third party payment processor 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, our third party payment processor is 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. 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.

5.8. 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 purposes only and might fluctuate due to exchange rate changes.

5.9. You are responsible for any taxes imposed on the Services except in cases where EU legislation requires us to collect the taxes.

5.10. 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.

5.11. Reselling of the Services to third parties is permitted only if you sign reseller (partner) agreement with Omnisend.

 

6. Cancellations and Inactivity

6.1. Except as otherwise set forth in an Order Form, 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. You have to explicitly cancel your subscription to paid services on the Website or by writing to support@omnisend.com 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.

6.2. We may at any time terminate the Agreement 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. Rights

7.1. Unless we expressly agree otherwise in the Agreement, all Software (as defined below), the Services, and all intellectual property rights associated with the Software and Services, are the sole and exclusive property of Omnisend. Subject to your full and complete payment of all amounts due to Omnisend therefor, to the extent Omnisend provides you or your end users with audio, visual, audiovisual, textual, and/or interactive works or materials, in any form, as part of the Services (individually and collectively, the “Omnisend Content”), Omnisend grants you a non-exclusive, non-transferable, non-sublicensable, revocable, Territory-wide, limited license to use the Omnisend Content solely in connection with your use of the Services. You agree not to use, copy, remove, publish, distribute, perform or display any Omnisend Content, or any portion thereof, in any other context or website or in connection with any other service. Except for the license granted in this Section 7.1, this is an agreement for services and you are not granted any licenses under the Agreement. You will not take any actions inconsistent with our ownership of each of our rights in the Software and the Omnisend Content.

7.2. Omnisend acknowledges and agrees you are the exclusive owner of all creative content provided to Omnisend by or on your behalf under the Agreement (the “Customer Content”); provided, you hereby grant to Omnisend a non-exclusive, Territory-wide, revocable, limited, fully-paid up license to use the Customer Content and the intellectual property rights associated with the Customer Content in connection with our performance of the Services. Except as otherwise expressly permitted in the course of Omnisend’s performance of the Services, you retain all right, title and interest in and to the Customer Content.

7.3. In connection with the rights and licenses granted by Omnisend under the Agreement, Omnisend may provide you with user manuals, reference manuals, releases, application and methodology notes, written utility programs, and other materials (collectively, the “Documentation”). Omnisend is the sole and exclusive owner of all right, title and interest in and to the Documentation and all of the intellectual property rights associated with the Documentation.

7.4. You agree 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, Omnisend Content 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, sell, license, sublicense, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services, the Omnisend Content, 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; (viii) upload, link to or post any portion of the Software and/or the Omnisend Content on a bulletin board, intranet, extranet or website; (ix) use or distribute the Software and/or the Omnisend Content in violation of any applicable laws, regulations or export restrictions; (x) possess or use the Software in any format other than machine-readable format; (xi) use the licenses and rights granted under the Agreement to design, develop or distribute a commercial product or service that competes with the Services; (xii) circumvent or attempt to circumvent any technological measures designed to enforce certain limitations or instructions with respect to your use of the Services; (xiii) use the Services to send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; or (xiv) 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. Omnisend reserves all rights in the Services not explicitly granted herein. If Customer uses the Services in any country within the European Union, the prohibitions set forth herein will not affect Customer’s rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.

7.5. 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.

7.6. 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.

7.7. 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.

7.8. 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. Privacy Policy; Target Data; Target Communications

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.

8.2. We may use and disclose your information in connection with its provision of the Services, according to our Privacy Policy. From time to time, we may modify the Privacy Policy, which modifications shall become effective once posted on https://www.omnisend.com/privacy/.

8.3. We may view, copy, and internally distribute Content from your Target Communications (as defined below) 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. In connection with the Services, you will make available to Omnisend, and we will consolidate, analyze and make use of data about third parties that consent to receive marketing and other content from you, or that otherwise interact electronically with you (each such third party, a “Target” and such third party data, the “Target Data”). You represent and warrant to Omnisend that you obtained each Target’s consent for Omnisend to collect, process, and use their Target Data, and to communicate with them in the manner contemplated under this Agreement. Omnisend will not own any Target Data, but Customer grants to Omnisend: (i) a non-exclusive, limited, fully-paid up, Territory-wide license to use Target Data in connection with the Services; and (ii) a non-exclusive, perpetual, irrevocable, fully-paid up, sublicensable, Territory-wide license to use, compile, license and distribute data derived from the interaction of non-personally identifiable Target Data with the Services, and non-personally identifiable Target Data in aggregate and blinded formats that do not identify, reference or imply an association with, Customer or its Targets for the purposes of creating benchmarking, statistical, research and marketing analyses, surveys, reports and studies. Customer is not permitted to collect or submit any Target credit card information or personal medical or health-related information in the Services. Omnisend will not be responsible or liable for any loss or correction of any Target Data. To the extent Omnisend processes Target Data subject to the General Data Privacy Regulations (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and/or the California Consumer Privacy Act (AB-375), such processing will be subject to the terms and conditions set forth in a data processing agreement provided by Omnisend, which is incorporated herein by reference.

8.5. Customer has and retains sole responsibility for all content (to the extent not developed or provided by Omnisend hereunder) delivered to Targets, by mail, e-mail, SMS or any other media (“Target Communication”). Customer warrants its use of the Target Data is and will at all times be: (i) in accordance with: (A) all terms, conditions, rules, procedures, policies or other guidelines published by each Third Party Account (as defined below), and (B) all applicable laws, rules and regulations, including, without limitation, laws related to the sending of duplicative, unsolicited, or deceptive messages (including spam); and (ii) without infringement or misappropriation of any intellectual property right or other rights of a third party. Each Target Communication sent by e-mail will: (x) clearly identify Customer as “Sender,” within the message; and (y) include a reasonable, working internet-based mechanism for the Target to unsubscribe, including, but not limited to, the e-mail address to which the Target Communication was sent. Customer hereby agrees to comply with the communication use restrictions set forth in Section 8.6 below. Omnisend may suspend the Services upon delivery to Customer of a written notice at least three (3) days prior to the effective date of such suspension that describes the basis for such suspension if Omnisend reasonably believes Customer: (1) violated or is violating any applicable law, statute or regulation in connection with Customer’s use of such Services; (2) breached or is breaching any term or condition set forth in this Agreement; or (3) violated or is violating any third party rights. Omnisend and Customer agree to use diligent efforts to resolve such issues to Omnisend’s reasonable satisfaction during such three (3)-day period. If such issues are not resolved to Omnisend’s reasonable satisfaction during such three (3)-day period, Omnisend may suspend any such Services until Customer provides Omnisend with information and material supported by appropriate legal and factual evidence or explanations sufficient for Customer to demonstrate to Omnisend that Customer resolved such issues.

8.6. Customer hereby agrees not to: (a) use the Services to transmit or attempt to transmit any Target Communication that violates any applicable law, statute, ordinance or regulation governing communication practices, including, but not limited to, the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, the laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, trade in firearms, spam, privacy, private or public data transfer and/or telecommunications, including, but not limited to, the Telephone Consumer Protection Act of 1991; (b) perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded by or downloaded by, any end user any “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other like form of solicitation; (c) perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded or downloaded by, or a Target any software viruses, worms, Trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Services; or (d) use the Services in a manner, or content, that infringes or misappropriates any intellectual property rights or rights of publicity, including by failing to obtain all required permissions to receive, upload, download, display, distribute or execute programs or perform other works or utilize derivative works protected by intellectual property laws or removal or alteration of applicable copyright, trademark or patent notices.

 

9. Storage and Security

9.1. Omnisend agrees the Target Data will be processed and stored through the Services in a secure data center owned by the Hosting Service Provider (as defined below). Omnisend shall not change such data center in which the Target Data is processed and stored without providing Customer with reasonable prior written notice thereof and shall ensure that any such relocation does not materially and adversely affect Customer. Any such relocation shall be at Omnisend’s sole cost and expense.

9.2. To the extent under Omnisend’s control, we will establish security measures in accordance with commercially reasonable industry practices, designed to protect against unauthorized access to, or alteration, loss, or destruction of, your Confidential Information (as defined below) under Omnisend’s control.

9.3. To the extent under its control, Omnisend shall establish and implement commercially reasonable disaster recovery procedures. Omnisend shall update and test the operability of the disaster recovery plan from time to time, at its discretion. All such testing shall be performed in such a manner as to minimize disruption to the Services.

9.4. Omnisend stores Customer information with a globally recognized third party hosting service provider (the “Hosting Service Provider”). Unless prohibited by applicable law or contract, Omnisend will provide you with copies of audit reports with respect to the Hosting Service Provider that Omnisend receives from such Hosting Service Provider (subject to your execution of the Hosting Service Provider’s standard non-disclosure agreement, if applicable).

 

10. Third Party Products and Services

The Services interact with information provided through Customer’s accounts with certain third party services and products (the “Third Party Accounts”). Any business relationship, exchange of data or other interaction between Customer and a third party and/or any purchase, download or use by Customer of any product or service offered by a third party, is solely between Customer and such third party. Customer acknowledges and agrees Omnisend may collect Target Data through the Third Party Accounts in connection with the performance of the Services. While Omnisend may recommend a third party and/or rely on data or information provided or generated by a third party’s products and services, Customer acknowledges Omnisend does not warrant the accuracy, reliability or completeness of any third party data and information. Customer also agrees Omnisend is not liable for any acts or omissions based on its reliance on third party data and information, or any loss or liability caused by a third party. The termination of Customer’s access to, or use of, any Third Party Account will not terminate the Agreement and Omnisend is not responsible for any effect on the Services arising from such termination.

 

11. Compliance

11.1. You must not use the Services to distribute illegal contests, pyramid schemes, chain letters, multi- level marketing campaigns, or any other prohibited material.

11.2. You must not use the Services to send email campaigns , text messages and push notifications 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.

11.3. 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.

11.4. You agree to import, access or otherwise use only permission-based lists. Purchased and rented recipient 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.

11.5. 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.

11.6. 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.

11.7. 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.

11.8. 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 Target Communications distribution list, sending Target Communications via the Service, and collecting information as a result of sending Target Communications, you:
Will clearly describe in writing how you plan to use any data collected, including for your use of the Services. You’ll get express consent to transfer data to Omnisend as part of this process, and you’ll otherwise comply with whatever privacy policy you have posted.
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.
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.
Agree to indemnify and hold us harmless from any losses, including attorney fees that result from your breach of any your representations and warranties set forth herein.

 

12. Limitation of Liability

12.1. 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 won’t be liable for any special, indirect, incidental, exemplary, lost profits, remote, cover, 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 Services in any month will be no more than what you paid us for the Services the month before. No claim may be asserted by a party against the other party more than twelve (12) months after the date the Agreement terminates or expires. Solely if any to the extent required in order for the limitation of liability set forth in this Section 12.1 to be enforceable outside of the U.S., nothing set forth herein shall exclude or limit liability to a greater extent than is permitted by applicable law, or shall exclude or limit liability for fraud, fraudulent misrepresentation or for death or personal injury caused by negligence.

12.2. You acknowledge we do not control the transfer of data over communication facilities, including the internet, and the Services may be subject to problems inherent in the use of such communication facilities. We will not be liable for any delays, delivery failures or other damage resulting from issues outside our control.

12.3. The parties agree they enter into the Agreement in reliance upon the limitations of liability above, which allocate risk between Omnisend and you and form a basis of the bargain between the parties.

 

13. Warranties

13.1. To the maximum extent permitted by law, we provide the Documentation and the Services as is and as available. That means that except to the extent expressly set forth in the Agreement, we don’t provide warranties of any kind, either express or implied, including, but not limited to, we may use or disclose your materials only as we describe in these Terms and our Privacy Policy, non-infringement, title and fitness for a particular purpose or use. We do not warrant the Services will meet your requirements nor do we provide any warranty about results that may be obtained by using the Services. The Services may rely on third party software and hardware, and we make no representations, promises or guarantees regarding third party software and hardware. Omnisend does not warrant the Services will be uninterrupted or error-free. The Services are not intended to replace your professional skills or judgment.

13.2. 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.

13.3. 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.

13.4. Each party represents and warrants: (i) it is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation; (ii) it has the full right, power and authority to enter into the Agreement and to perform its obligations under the Agreement; and (iii) the Agreement has been duly executed by its authorized representative and is legally binding upon it and enforceable in accordance with its terms.

 

14. Indemnity

You agree to indemnify, defend and hold us 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 or applicable law.

 

15. 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:
If you send Target Communications that violate anti-Spam laws and/or our Anti-Spam Policy, then the liquidated damages will be 1100 USD.
If you send Target Communications with inappropriate content as listed in the Agreement, then the liquidated damages will be 900 USD.
If you host images for anything other than your Target Communications, or use our resources in any way that’s not permitted by the Agreement, then the liquidated damages will be 550 USD.

 

16. Equitable Relief

If you violate the Agreement, then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.

 

17. Disclaimers

We aren’t responsible for the behavior of any advertisers, linked websites, or other Members.

 

18. Assignments

You may not assign any of your rights under the Agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.

 

19. Choice of Law

Republic of Lithuania’s laws will apply to any dispute related to the Agreement or the Services. Any dispute related to the Agreement or the Services itself will be decided by the state and federal courts in Lithuania, and each party will be subject to the jurisdiction of those courts.

 

20. Force Majeure

We won’t be held liable for any delays or failure in performance of any part of the Services, 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.

 

21. Survivability

Even if the Agreement is terminated, the following sections will continue to apply: Rights, Compliance, Limitation of Liability, Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.

 

22. Severability

If it turns out that a section of the 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.

 

23. Interpretation

The headers are provided only to make this agreement easier to read and understand.

 

24. Amendments and Waiver

24.1. Amendments or changes to the Agreement won’t be effective until we post revised terms on the Website. That aside, additional terms may apply to certain features of the Services (the “Additional Terms“). The Additional Terms will be considered incorporated into the Agreement 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.
24.2. 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 bound by these Terms in all matters that are not covered in the Written Agreement.

 

25. Notification of Security Breach

In the event of a security breach that may affect you or anyone on your Target Communication 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.

 

26. Notices

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 or in an order form.

 

27. Confidentiality

27.1. The Receiving Party (as defined herein) will hold confidential, not use except as otherwise authorized herein, and protect from unauthorized disclosures to third parties the Confidential Information of a Disclosing Party (as defined herein). For purposes hereof, “Confidential Information” means any information disclosed or otherwise made available by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party and that reasonably should be known to the Receiving Party to be confidential or proprietary to the Disclosing Party due to the circumstances of disclosure or the nature of the information disclosed. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by a Receiving Party; (ii) was in a Receiving Party’s possession prior to receipt of the same hereunder, as evidenced by such Receiving Party’s prior written records; (iii) was received from a third party who was not known by such Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated applicable law; or (iv) is approved in writing for release by the Disclosing Party.
27.2. Nothing set forth herein shall be construed to prohibit Omnisend from disclosing a Customer’s Confidential Information to any third party that has a need to know such information in connection with the Agreement or with Omnisend’s enforcement of its rights under the Agreement.
27.3. From time to time, a Receiving Party may be required to disclose a Disclosing Party’s Confidential Information by order or other requirement of a court (e.g. subpoena), administrative agency, or other governmental body or applicable law. In such event, the Receiving Party is permitted to disclose such information to the extent necessary to comply with such order or legal requirement. Before any such disclosure, the Receiving Party will notify such Disclosing Party in writing of the applicable order or subpoena (unless it is prohibited by applicable law from doing so), and will provide such Disclosing Party with a reasonable opportunity to stop disclosure of such information.

 

28. Entire Agreement

This Agreement and any Additional Terms you’ve agreed to make up the entire agreement and supersede all prior agreements, representations, and understandings.

 

29. Relationship of the Parties

The relationship of the parties established by the Agreement is that of independent contractors, and nothing contained in the Agreement shall be construed to create a joint venture or partnership between the parties or to give either party the power to act as agent for the other or to enter into any agreement on behalf of the other party.