Effective starting: May 12, 2022 (view archive)
1. General Provisions
1.1 Through its software product, Omnisend, UAB, legal entity code 302530363, address Verkių g. 25C-1, LT-08223 Vilnius, Republic of Lithuania, and/or its Affiliates (as defined below) (“Omnisend”, “we” or “us”) provide business owners and representatives with a variety of tools and resources to enable them to collect visitor and client email addresses, shopping data and other information to create, launch, and manage online email campaigns, text messages and push notifications (the “Services”).
1.3 In these Terms Order Form means any online or written form or other communication provided by Omnisend evidencing the initial designation of the Services by the Customer and any subsequent orders to purchase the Services. Each Order Form is hereby incorporated into Agreement and is subject to these Terms. In the event of a conflict with the terms contained in any Order Form and these Terms, the terms contained in the Terms shall prevail.
1.4 Customer hereby agrees Omnisend may provide some or all Services through its Affiliates (as defined herein), since we operate as a group of related legal entities. For purposes of this Agreement, an “Affiliate” means a third-Party controlled by, controlling, or under common control with Omnisend; 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. Omnisend Services may be provided through any of its Affiliates and Customer (as defined below) by agreeing to these Terms, agrees to such provision of the Services.
1.5 As a customer of the Services, you are referred hereby as a “Customer” (or “you”). In the context of the Terms, this definition means a person who represents a legal entity and wishes to subscribe for and subscribes to the Services for business or professional purposes, i. e. not for personal, family or household needs.
1.6 In the Terms, Omnisend and the Customer are collectively referred to as the “Parties” and each individually as a “Party”.
1.7 Omnisend and Customer each represents and warrants that: (i) it has full corporate right, power, and authority to enter into this Agreement and (ii) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or is otherwise bound.
2. Services and Support
2.1 Services are offered through the website which is accessible via the URL www.omnisend.com (the “Website”).
2.2 Modern browser such as the latest version of Microsoft Edge, Mozilla Firefox, Apple Safari or Google Chrome is required 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.
2.3 Customer agrees that Omnisend makes no guarantee that marketing messages will be rendered properly to all Customer’s clients, since Omnisend cannot control their internet connection, the electronic devices they use to open that message, etc.
2.4 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 the entire world.
2.5 Customers may permit its representatives and authorized users (the “Authorized Users”) to use the Services on behalf of the Customer. Customer shall be responsible for each Authorized User’s compliance with and breach of the Agreement.
2.6 Customer will not, and will not permit any Authorized User or other Party to: (i) modify, adapt, alter, translate, or create derivative works of the Services; (ii) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation (as defined below) to any third Party; (iii) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Omnisend); (iv) bypass, delete, or disable any copy protection or security mechanisms of the Services; (v) use or demonstrate the Services in any other way that is in competition with Omnisend; (vi) remove any notice of proprietary rights from the Services; (vii) attempt to gain unauthorized access to, or disrupt the integrity, performance or security of the Services or the data contained therein; (viii) use or copy the Services or Documentation, except as expressly allowed herein or (ix) use the Services in violation of the Terms. Omnisend shall have the right, but not the obligation, to review and monitor all use of the Services to ensure compliance with the terms and conditions of the Agreement.
2.7 Customer shall be responsible for setting up and configuring the Services, including without limitation any provisioning of access to the Services to its Authorized Users. Customer shall be responsible for obtaining and maintaining, at Customer’s expense, all the necessary telecommunications, computer hardware, software, services, and Internet connectivity required by Customer or any Authorized User to access the Services from the Internet. If Omnisend assists or advises Customer with any Services setup, configuration, or support, in no event shall such assistance or advice be construed as legal advice.
2.8 Omnisend shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event Omnisend determines, in its reasonable discretion, that (i) the Services are being used by Customer, or its Authorized Users, in violation of any applicable laws or regulations or this Agreement; (ii) the Services are being used by Customer in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the Services by Customer adversely affects Omnisend’s Services to others; (iv) Omnisend is prohibited by an order of a court or other governmental agency from providing the Services; (v) there is a denial of service attack or any other event which Omnisend determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (vi) there is a security incident or other disaster that impacts the Services or the security of the Services, Customer’s account or Target Data (as defined below); or (vii) any amount due under the Agreement is not received by Omnisend within fifteen (15) days after it was due. Without limiting the generality of this Section, Omnisend shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services pursuant to this Section.
2.9 Customer acknowledges that Omnisend may continually develop, deliver, and provide to Customer on-going innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, Omnisend reserves the right to modify the Services from time to time. Some modifications will be provided to Customer at no additional charge. In the event Omnisend adds additional functionality to a particular Service, Omnisend may condition the implementation of such modifications on Customer’s payment of additional Charges.
2.10 The Customer undertakes to get acquainted with the Documentation (as described below) and demonstrational tutorials, which are accessible via the Website, to use the Services in the way it should be done. If Customer has any questions regarding the use of the Services, the Customer may contact Omnisend for guidance or support.
2.11 If Omnisend will perform professional services (e.g. importing of contact lists, setting up automations, email templates, etc) on behalf of the Customer 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.
3. Requirements for the Customer and/or Authorized User
3.1 To use Omnisend, you and/or Authorized User must: (i) be at least eighteen (18) years old and legally capable to enter contractual relationship; (ii) complete the registration following the instructions provided for on the Website; (iii) agree to the terms and conditions set forth in the Agreement; and (iv) provide true, complete, and up to date legal and contact information. If you sign up for Omnisend Services on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.
3.2 By using Services, you represent and warrant that you are business owner and/or represent a business enterprise and will use Services only for the business purposes.
3.3 By using Services, you represent and warrant that you meet all the requirements listed herein, and that you won’t use Services in a way that violates any laws or regulations. Omnisend may refuse Services, close accounts of any users, and change eligibility requirements at any time.
4. Agreement Term
4.1 The term of the Agreement (the “Agreement Term”) begins when you sign up for Omnisend Services 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.
5. Account and Password
5.1 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.
5.2 Customer is solely responsible for protecting its user-id, password, its account and all other data and access made available to it in connection with the execution and performance of the Agreement. Customer shall use reasonable efforts to prevent unauthorized access to or use of its account and the Services. Customer is solely and fully responsible for all activities that occur in connection with its account and its use of the Services. In the event Customer believes Customer’s account has been compromised, including any unauthorized use or access of the Services or any other known or suspected breach of security, Customer shall immediately notify Omnisend by email to [email protected], but not later than twenty-four (24) hours following discovery of such breach.
5.3 If the Customer provides incorrect, incomplete, or inaccurate data, Omnisend shall be entitled to apply all or any of the following measures immediately and without notifying the Customer: (i) refuse registration of the Customer; (ii) cancel the Customer’s registration; (iii) restrict or suspend the provision of all or part of the Services to the Customer; (iv) delete any Customer’s data processed by Omnisend.
5.4 You are solely responsible for any losses, damages, fees, or liability due to your lost, stolen, hacked or otherwise compromised user-ids and passwords.
5.5 We don’t have access to your current password, and for security reasons, we may only reset your password.
6. Charges and Payments
6.1 We provide both free (“Free plan”) and paid plans (e. g., “Standard plan” and “Pro plan”) Services. All the afore-mentioned Services are provided on a per account basis. All the features of the plans are posted on the Website.
6.2 All charges for the paid services (“Charges”) are posted on the Website or otherwise set forth in the Agreement. You agree to pay Charges for paid services according to these Terms. Charges paid by Customer are non-refundable.
6.3 The Services are a prepaid subscription service with monthly (30 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 canceled before the start of the new billing period.
6.4 The Customer undertakes to ensure that the Charges for the Services are paid promptly, but no later than fifteen (15) days after the start of the new billing period.
6.5 As long as you’re using paid Services, you’ll provide Omnisend’s third-party payment processor with valid credit or debit card (the “Card”) information and authorize us to deduct the monthly charges from that Card. You undertake to replace the information for any Card that expires with information for a different valid Card. Anyone using a Card represents and warrants that he or she is authorized to use that Card, and that all charges may be billed to that Card, and it won’t be rejected. If, for some reason, our third-party payment processor is unable to process your Card, we’ll try to charge more times in the next few days. Consecutive charge retries do not change and/or extend your monthly renewal date. No Card is required while using the Free plan.
6.6 Payments are due every thirty (30) days starting from your first payment. In case of an unsuccessful charge to a Card, we’ll automatically suspend paid features of your plan (downgrade to Free plan) until Charges for the Services can be successfully processed.
6.7 If Omnisend fails to resolve an issue with Customer resulting from a Card decline or expiration, Omnisend may automatically suspend paid features of the Services (downgrade to Free plan) until monthly Charges can be successfully processed or terminate the Customer’s account or/and the Agreement due to non-payment.
6.8 Customer agrees to notify Omnisend of all billing disputes within fourteen (14) days of the start of new billing period, and disputes not made within that time are waived. Late payments, including those resulting from Card declines, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Omnisend must initiate a collections process to recover Charges due and payable hereunder, then Omnisend shall be entitled to recover from Customer all costs associated with such collection efforts, including but not limited to reasonable attorneys’ charges. In the event Omnisend delivers to Customer an invoice for any Charges or interest payments owed hereunder, such invoiced amounts shall be due within fifteen (15) days of the date of such invoice.
6.9 If you go over your sending limit and reach another pricing level, your plan will be automatically upgraded to the higher paid tier during the next billing cycle. However, in such scenario the Customer may upgrade to the higher paid tier earlier manually.
6.10 We may introduce new or cancel existing free and paid Services and features at any time and change Charges from time to time. You will be informed about any of the changes at least thirty (30) days in advance via email and/or on our Website. Customer’s continued use of the Services after a Charges increase will constitute Customer’s agreement to the increase in Charges.
6.11 All Charges for Services are calculated in US dollars and your Card will be charged in US dollars. Charges in other currencies are provided for information purposes only and might fluctuate due to exchange rate changes.
6.12 You are responsible for any taxes imposed on the Services except in cases where EU, UK, USA, or any other legislation requires us to collect the taxes.
6.13 Reselling of the Services to third Parties is permitted only if you sign a specific written agreement or reseller (partner) agreement with Omnisend, as described in the Omnisend Partner Terms and Conditions (the “Partner Terms”).
7. Termination and Inactivity
7.1 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 and Services that you have subscribed to. You must 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 automatically renew, and you will be charged for subscription of the Services. 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 marketing campaign tools. If you have more than one account with Omnisend, you must cancel each account separately.
7.2 We may at any time terminate the Agreement if: (i) 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); (ii) we are required to do so by law (for example, where the provision of the Services to you is or becomes unlawful); (iii) the provision of the Services to you by us is, in our opinion, no longer commercially viable; or (iv) we have elected to discontinue the Services (or any part thereof).
7.3 Upon termination or expiration of this Agreement for any reason: (i) all rights and obligations of both Parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); (ii) each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party; and (iii) Omnisend will permanently delete Customer’s Target Data, Target Communications and any other data contained in the Customer’s account.
7.4 If you do not log in to your account for four (4) months or more, we may treat your account as “inactive” and permanently delete the account and all the data associated with it.
7.5 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.
7.6 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.
8. Intellectual Property Rights
8.1 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, 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.
8.2 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 during Omnisend’s performance of the Services, you retain all right, title and interest in and to the Customer Content.
8.3 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 the intellectual property rights associated with the Documentation.
8.4 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.
8.5 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 or freelancer for the benefit of your client, please refer to the Partner Terms.
8.6 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 Omnisend 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. All our marks shall be used in a manner specified in the Omnisend Brand Guidelines. 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.
8.7 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. Customer hereby grants Omnisend, on behalf of itself and its Authorized Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Omnisend products and Services.
9. Services Integration Terms
9.2 It is your responsibility to understand how your use of the available ecommerce automations and features will impact your Connected Site, including whether a particular ecommerce automation or feature will cause your Connected Site to deploy any tracking technologies.
9.4 In addition to the above, you also understand and agree:
9.4.1 Omnisend may modify, change, or discontinue the ability to integrate Connected Sites with your Omnisend account at any time;
9.4.2 Omnisend may refuse or limit, suspend, or terminate your use of Connected Sites integrations at any time, with or without cause;
9.4.5 The ability to connect a Site is considered as a part of the Services offered by Omnisend.
9.5 All signup forms that you create on Omnisend have an automatic tracking through cookies. It is your responsibility to understand how your use of those cookies will impact your signup forms.
9.8 The ability to create a signup form is considered as a part of the Services offered by Omnisend. You hereby accept and agree that you have the sole responsibility for lawfully compliant use of any signup forms that you create or that are generated through your use of the Services. As such, it is your sole responsibility to ensure that any signup forms that you create or that are generated through your use of the Services comply with all applicable laws, including, but not limited to, the Americans with Disabilities Act (ADA) and any similar foreign laws. Additionally, Omnisend makes no warranty that any signup forms will be available 100% of the time when integrated with your Site via the Services, that they will work properly with any and all third party user reader software that is not controlled by Omnisend, or that any signup forms will be error free. You are solely responsible for any issues, problems, or damages that you experience because of a mistake or error you make, or a third party software failure, in connection with creating or generating a signup form using the Services.
10.1 Omnisend shall be acting as the controller of the personal data in relation to the data provided by the Customer during registration.
10.2 When providing the Services, Omnisend shall be acting as a processor of personal data acting on behalf of the Customer and shall process and store Target Data (as defined below) controlled by the Customer only as long as the Services are provided. Such processing is governed by the DPA, which is hereby incorporated into this Agreement by reference.
10.4 The Customer undertakes to ensure that the processing of personal data controlled by the Customer, which is necessary for the purposes of using the Services, does not infringe the rights and legitimate interests of data subjects or other third parties. Accordingly, the Customer shall bear all the associated risks.
10.6 We may view, copy, and internally distribute content from your Target Communications and account to create algorithms and programs (“Tools”) that help us spot problem accounts. We use these Tools to find Customers who violate these Terms or applicable laws.
10.7 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 Protection Regulation (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 DPA provided by Omnisend, which is incorporated herein by reference.
10.8 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; and (ii) without infringement or misappropriation of any intellectual property right or other rights of a third party.
10.9 Each Target Communication sent by e-mail will: (i) clearly identify Customer as “Sender,” within the message; and (ii) 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 10.11. below.
10.10 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: (i) violated or is violating any applicable law, statute or regulation in connection with Customer’s use of such Services; (ii) breached or is breaching any term or condition set forth in this Agreement; or (iii) 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.
10.11 Customer hereby agrees not to: (i) 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 laws and regulations governing export control, unfair competition, false advertising, consumer protection, issuance or sale of securities, trade in firearms, privacy, private or public data transfer and/or telecommunications; (ii) perform or facilitate any act which, directly or indirectly, causes to be transmitted to, uploaded by or downloaded by, any end user any Spam as defined in the Section 13 of these Terms; (iii) 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 (iv) 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.
11. Storage and Security
11.1 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.
11.2 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.
11.3 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.
11.4 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 upon a reasonable request of the Customer will provide Customer 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).
11.5 Omnisend values the security of our users and their information. We encourage anyone who discovers a security vulnerability related to our platform to report it immediately by emailing [email protected]. We acknowledge and appreciate the efforts of security researchers who bring such vulnerabilities to our attention. In line with our commitment to security, we pledge to review and respond to all reported vulnerabilities within 72 hours.
12. Third Party Products and Services
12.1 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.
13. Anti-spam, Target Consent, Target Communication and Opt-out Rules
13.1 Customer may not use the Services to directly or indirectly send, transmit, handle, distribute or deliver: (i) Spam (as defined below); (ii) communicate to a recipient obtained via internet harvesting methods or any impermissible electronic collection of address or other information; or (iii) communicate to a recipient record that is incomplete, inaccurate and/or not updated for all applicable opt-out notifications.
13.2 “Spam” is any commercial communication that is transmitted without the permission of the Target. This definition includes junk mail, chain letters, pyramid schemes, or any other form of solicitation.
13.3 To communicate to Targets using Services, you must have obtained their express consent to receive promotional or marketing communications. This could be done, for example, through:
13.3.1 A subscribe form on your web site;
13.3.2 An opt-in checkbox. This checkbox must not be checked by default, the person completing the form must willingly select the checkbox to indicate they want to hear from you.
13.4 In connection with your use of the Services, you agree not to:
13.4.1 harvest or scrape Target Data from third party websites;
13.4.2 purchase or rent Lists (as defined below) (whether they are opt-in or not), or otherwise use any recipient list containing email addresses and phone numbers for which you did not obtain permission yourself;
13.4.3 include a pre-checked field on any subscription form;
13.4.4 have a subscription form that subscribes customers to an unrelated list;
13.4.5 send out unrelated offers or unrelated content to your List;
13.4.6 add a Target into a List without the Target’s permission;
13.4.7 communicate to a Target who has requested to be removed from your List;
13.4.8 utilize a List older than 12 months without reconfirming the Targets’ consent to receive communication.
13.5 Every Target Communication you send using the Services must include the following:
13.5.1 Target’s email address, phone number or any other identification data;
13.5.2 True and accurate header, subject and routing information (e. g. “From,” “To,” Reply-To”), which is not in any way misleading;
13.5.3 An identification the email message is an advertisement, if applicable;
13.5.4 The name and physical address of the Customer as well as current and accurate full legal entity name in communication channels where required by law. If you are sending communication on behalf of your client, you need to include your client’s details instead;
13.5.5 An advisement that the Target may unsubscribe, opt-out or otherwise demand that use of its email address or phone number cease with respect to any or all communication purposes;
13.5.6 Information on one or more methods by which the Target may notify Customer of its election to unsubscribe, opt out or otherwise demand that use of its information cease with respect to any or all communication purposes;
13.5.7 A single-click unsubscribe link that instantly removes the Target from your subscription List in channels where required by law. No input from the Target, other than confirmation, should be required. Once they unsubscribe, Customer can never communicate to them again, other than sending final confirmation/reminder regarding successful unsubscribing or necessary confirmed order related communication.
13.6 Customer warrants it will comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests.
13.7 The Services will automatically unsubscribe Targets with respect to whom emails are consistently returned as undeliverable.
13.8 Customer shall be responsible for compliance with all applicable laws and regulations applicable to Customer’s use of the Services. Customer acknowledges and agrees that Omnisend (i) does not control or monitor Target Communications, or guarantee the accuracy, integrity, security, or quality of such Target Communications and (ii) is not responsible for obtaining any necessary consents or permissions from recipients of Target Communications.
14. Spam Verification procedures
14.1 Omnisend has various layers of approval and monitoring to ensure you comply with our anti-Spam rules:
14.1.1 The Services are integrated into third-party spam reporting systems used by some of the biggest ISP’s and e-mail service providers. If you don’t have permission and someone marks your campaign as Spam, we’ll know about it the moment that button is pressed. If you receive a complaint rate greater than 0.1% of all Targets (that’s 10 complaints for every 10,000 recipients), bounce rate greater than 4% of all delivered emails, unsubscribe rate greater than 2%, or “removed” rate greater than 5% you will receive a warning email requesting an explanation and giving you advice. “Removed” rate is a sum of bounce, complaint and unsubscribe rate. Higher levels of complaints and/or bounces will result in accounts being marked as spamming, locked, and/or terminated. Getting two or more warning emails (as described in this Section) during 3-month period will result in your account being locked or terminated and all special bonuses like discounts or extra features being removed.
14.1.2 Our team might verify Target Communication lists (the “Lists”) imported into our system.
14.1.3 Omnisend monitors internet service provider and email service filter blacklists and the Services’ abuse warning system all day every day. Omnisend can pinpoint who is causing delivery problems or attracting complaints very easily.
14.1.4 If Omnisend notices your Lists contains one or multiple spam traps, you’ll be asked to clean your List. If you do not clean your List within given period, your account will be suspended or terminated. A spam trap is an email address traditionally used to expose illegitimate senders who add email addresses to their lists without permission. But they are also set up to identify email marketers with poor permission and list management practices. Omnisend will assist you in cleaning your List with instructions, personal advice from the Omnisend support team and, in some instances, paid service of List cleaning.
14.2 If we discover that Customer is sending Spam or breaching any of the rules of these Terms, we reserve the right to terminate Customer’s account immediately.
15. Other Target Communication and Services Compliance Rules
15.1 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.
15.2 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.
15.3 If you’re located in the European Economic Area (the “EEA”) or send to anyone in the EEA, you represent and warrant that in creating your List, sending Target Communications via the Service, and collecting information because of sending Target Communications, you:
15.3.2 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 Services. If you’re subject to regulations and you use our Services, then we won’t be liable if our Services doesn’t meet those requirements;
15.3.3 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 Omnisend to receive and process Target Data and send communications to that individual on your behalf;
15.3.4 Agree to indemnify and hold us harmless from any losses, including attorney fees, that result from your breach of any of your representations and warranties set forth herein.
16. Limitation of Liability
16.1 To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Services. We and/or Affiliates 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. 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.
16.2 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.
16.3 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.
17. Representations and Warranties
17.1 To the maximum extent permitted by law, we provide 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. 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.
17.2 From time to time down-time of the Services, either scheduled or unscheduled, may occur. Omnisend will work within reason to ensure this amount of down-time is limited. We shall not be held liable for:
17.2.1 Temporary and/or permanent downtime and/or malfunction, temporary unavailability of the Services, provided it was caused by objective reasons;
17.2.2 Loss of or damage to the Customer’s data, unless this occurred due to our fault or gross negligence;
17.2.3 Storage of information and data – transferred by the Customer to the Omnisend server while using the Services – upon termination of the use of the Services.
17.3 Omnisend cannot guarantee that any file or program available 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.
17.4 Each Party represents and warrants that: (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.
18.1 Customer will indemnify, defend, and hold Omnisend, its officers, directors, Affiliates, subsidiaries, licensors, agents, and employees harmless from and against all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ charges and court costs.
18.2 The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (i) the indemnified Party shall promptly notify the indemnifying Party in writing of any threatened or actual claim or suit; (ii) the indemnifying Party shall have sole control of the defense or settlement of any claim or suit; and (iii) the indemnified Party shall cooperate with the indemnifying Party to facilitate the settlement or defense of any claim or suit.
19. Liquidated Damages
19.1 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:
19.1.1 If you send Target Communications that violate applicable laws and/or these Terms, then the liquidated damages will be 1100 USD;
19.1.2 If you send Target Communications with inappropriate content as listed in the Agreement, then the liquidated damages will be 900 USD;
19.1.3 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.
20. Equitable Relief
20.1 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.
21.1 We aren’t responsible for the behavior of any advertisers, linked websites, or other Customers.
22.1 You may not assign any of your rights under the Agreement to anyone else. We may assign our rights to Affiliate, any other individual or entity at our discretion.
23. Choice of Law and Jurisdiction
23.1 Republic of Lithuania’s laws will apply to any dispute related to the Agreement or the Services.
23.2 All disagreements between Omnisend and the Customer regarding the implementation of these Terms shall be resolved through negotiations. If the Parties fail to resolve the dispute through negotiations, within thirty (30) days from the initiation of negotiations, such dispute shall be finally settled in the courts in accordance with the laws of the Republic of Lithuania.
24. Force Majeure
24.1 If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated hereunder and/or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause. Notwithstanding anything herein to the contrary, the Party prevented from performing hereunder by a force majeure event shall nevertheless use its best efforts to recommence its performance hereunder as soon as reasonably practicable and to mitigate any damages resulting from its non-performance hereunder.
25. Survivability and Amendment of the Terms
25.1 As the Services are constantly improving and evolving to ensure a more convenient and safer use, we reserve the right to amend the Terms unilaterally.
25.2 Omnisend will notify the Customer of any amendments to the Terms by sending them to Customer by email or via its account. Amendments to the Terms will take effect after thirty (30) days after sending them to the Customer.
25.3 By continuing the use of the Services, including but not limited to extending the Services, ordering new Services after the taking effect of amendments to the Terms, the Customer acknowledges that he has acquainted itself with such amendments and fully agrees to them.
25.4 The Services ordered before the amendment of the Terms shall be provided in the order and within the terms established in the Terms in force at that time.
26.1 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 Agreement will still be valid.
27. Amendments and Waiver
27.1 Amendments or changes to the Agreement won’t be effective until we post revised Terms on the Website. If we don’t immediately act on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still act at some point.
27.2 Omnisend will inform Customer about the amendments of the Terms five (5) days prior posting them on the Website via an email address specified by the Customer during the registration on the Website.
27.3 If you have a written agreement (the “Written Agreement”) with us or our authorized reseller to use Omnisend Services and there’s a conflict between these Terms and the Written Agreement, the Written Agreement will prevail. You are bound by these Terms in all matters that are not covered by the Written Agreement.
27.4 Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
28. Notification of Security Breach
28.1 In the event of a security breach that may affect you or anyone on your Lists, 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 undertake to promptly do it.
29.1 Omnisend shall send notices and otherwise keep in touch via the email address or telephone number, provided during the Customer’s registration, or in any other way the Customer can be reached.
29.2 Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Email: [email protected], our customer support chat (for more general questions) or any other addresses as we may later post on the Website or in any other form.
29.3 The Parties agree that the presence of a copy of an e-mail or other message addressed to the Customer on our server (database or other device storing the relevant information) shall be an appropriate proof of the sending of any information.
30.1 Customer agrees that Omnisend may refer to Customer by name, logo, and trademark in Omnisend’s marketing materials and the Website. Customer acknowledges and agrees that Omnisend does not certify or endorse, and has no obligation to certify or endorse, any of Customer’s products, services, or content.
31.1 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.
31.2 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.
31.3 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).
32. Relationship of the Parties
32.1 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.