Terms and Conditions of Use

The Sales App Centre and its suppliers (known as “youmail”) provide web site operators and other individuals tools and resources to collect visitor e-mail addresses and to create, launch and manage online e-mail campaigns, and support with the creating, sending and managing of email campaigns.  (“the Services”). youmail may not be used for the sending of unsolicited e-mail (sometimes called “spam”). See our Anti-Spam Policy. The following are the terms and conditions for use of the Services. By using youmail you are deemed to have accepted these terms and conditions.

1. Services and Support

1.1 The Services are provided subject to this Agreement, as it may be amended by youmail and any guidelines, rules or operating policies that youmail may establish and post from time to time. By posting updated versions of these Terms of Use on the youmail web site, or otherwise providing notice to you, youmail may modify these terms and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Terms on this webpage.

1.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services.

1.3 The Services enable business and community customers to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute e-mail communications with visitors and other targeted prospects. The Services also include the provision of support to clients wishing to contract The Sales App Centre to create, manage and send campaigns on their behalf.

1.4 Both the number of e-mail messages sent and the number of KiloBytes of data transferred are metered by youmail. Normal youmail accounts allow you to send an unlimited number of e-mail messages. The total KiloByte data transfer of each message can be no more than 100kb.

1.5 All email delivery prices are subject to change at any time. All fees paid to youmail are non-refundable, unless an account is terminated by youmail for a reason other than violation of the Anti-Spam Policy. Payment for Services should be made according to the payment arrangements made between you and your youmail Account Manager. All prices are subject to change and you are responsible for reviewing the Pricing Schedule from time to time and remaining aware of the Fees charged by youmail.

1.6 For all accounts, youmail may charge an account re-activation fee should an account need to be re-activated after becoming de-activated due to non-payment or some other reason.

1.7 You confirm that at the time of account activation you will provide true, accurate, current, and complete information about yourself as requested by your Account Manager. As part of the registration process, you will identify an e-mail address and password for your youmail account. You are responsible for maintaining the security of your account, passwords and files, and for all uses of your account and of the Services in your name. youmail reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.

1.8 Where you require the assistance of The Sales App Centre to create, manage, send or otherwise support your email marketing efforts, the required services will be set out in a project proposal as agreed by both parties.

1.9 youmail warrants that it has the experience and expertise to perform the requested services in a timely and professional manner.

1.10 Both parties agree to fully comply with all statutory, licensing or other related provisions or obligations that relate to the Services provided.

1.11 It is understood that while youmail makes every attempt to make sure that all e-mail messages sent through our servers follow e-mail standards, but we cannot guarantee that messages will look consistent or perform in a consistent manner across all e-mail platforms due to the number of different HTML composition tools and email clients available. For best results youmail recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards. You are solely responsible for determining if use of the Services sufficiently meets your requirements.

2. Restrictions and Responsibilities

2.1 This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software, modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party.

2.2 You acknowledge and agree that the Services and the youmail company names and logos and all related product and service names, design marks and slogans, are the property of youmail or its affiliates or suppliers (collectively, the “Marks”). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of youmail. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in youmail or its third party suppliers, as the case may be.

2.3 You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party. You hereby agree to indemnify and hold harmless youmail against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. Although youmail has no obligation to monitor the content provided by you or your use of the Services, youmail may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.

2.4 The Services may only be used for lawful purposes. Transmission or solicitation of any material that violates New Zealand or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libellous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.

2.5 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to youmail who may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you.

2.6 youmail will not use any of your subscriber lists or any other customer information for any other purposes than those intended with the service. Your customer information will not be shared with any other parties. In addition, youmail will not use your customer information for the purpose of sending unsolicited commercial e-mail.

2.7 You will adopt and maintain the Privacy Policy, which may be modified by youmail from time to time.

2.8 You may not use youmail to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns

2.9 You may not use youmail to send email campaigns that link to or display nudity, obscene content, gambling related content, unauthorised pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.

3. Termination

3.1 You may terminate this Agreement at any time by sending an e-mail message to info@youmail.co.nz or by sending written notice to youmail, PO Box 33 463, 17 Esmonde Road, Takapuna, Auckland, New Zealand. Correspondence must include your first name, last name and youmail username. No refunds will be issued if you terminate this agreement.

3.2 youmail may terminate this Agreement or the Services at any time with or without cause, and with or without notice. youmail shall have no liability to you or any third party because of such termination. If youmail terminates this agreement because you violated the Anti-Spam policy, no refund will be issued.

3.3 youmail may delete any of your archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

3.4 If you do not log into your account for more than 120 days, the account will become inactive. When an account is classified (at youmail’s sole discretion) as inactive, youmail will flag that account as inactive. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM THE youmail DATABASE.

4. Warranty Disclaimer; Remedies

USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. youmail DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND youmail DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

Your sole and exclusive remedy for any failure or non-performance of the Services shall be for youmail to use commercially reasonable efforts to adjust or repair the Services.

5. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL youmail OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “youmail“) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF youmail SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, youmail IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF youmail TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE.

6. Pricing and Payment

6.1 All work undertaken between you and youmail will fall under one of three project types:
(i) Fixed Price Project – where a project proposal specifies a fixed price for the Service, you will pay the fixed price stated on the project proposal according to the agreed payment schedule. Should youmail undertake any additional project work which falls outside the fixed price project proposal, this project work will be provided on a time and materials basis.
(ii) Time and Materials – where the project proposal specifies time or materials for the Services, you will pay charges based on the time taken to perform the Services. The current charge out rates for time and materials will be provided by your Account Manager.
(iii) License and Transaction Fees – where the project includes use of the youmail email marketing software, database hosting or third party software you will pay all license and transaction costs as per the schedule of costs provided to you by your Account Manager.

6.2 You will pay all youmail invoices without deduction or set off within 30 days following receipt of an invoice.

7. Miscellaneous

7.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

7.2 youmail and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

7.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind youmail in any respect whatsoever.

7.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.

7.5 The Agreement shall be governed by the laws of New Zealand. All legal actions in connection with the Agreement shall be brought New Zealand.

8. System Requirements

It is understood that in order to use youmail, a Windows PC with Internet Explorer 4.0 or higher must be used. Additionally, a stable connection to the Internet is required. youmail may work in a limited manner on Macintosh, Unix, and other platforms, but there is no guarantee of functionality on non-Windows platforms. Additionally, youmail may work in a limited manner on a non-Internet Explorer web browser (such as Firefox), but there is no guarantee of full functionality on web browsers other than Microsoft’s Internet Explorer.

9. Compliance rules for sending e-mail

All youmail clients must follow the rules of the federal CAN-SPAM act and YouMail’s Anti-Spam policy when sending e-mail through the service. Accordingly, we require the following of e-mail messages sent through the youmail system:

All e-mails must contain a one-click unsubscribe link as provided by the youmail service. youmail scans every campaign for the existence of an unsubscribe link. If an unsubscribe link is not detected, the user is informed and is required to include an unsubscribe link before continuing.

All e-mails must contain non-Internet contact information of the sender, such as your company’s address, or your company’s phone number.

All e-mails must state the reason the recipient is receiving the message. For example, “You are receiving this message from ABC Company because you signed up for our e-mail list at www.abc.co.nz.” 
These 3 guidelines will help ensure that youmail maintains its reputation and white-listing status with a number of major ISPs and white-listing programs. If at any time your campaign is flagged as SPAM by an AOL recipient, youmail reserves the right to cancel your account without notice.

10. Email and Permission Practices

10.1 Every email message sent in connection with the Services must contain an “unsubscribe” link or other mechanism that allows subscribers to remove themselves from your mailing list. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to youmail. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link.

10.2 You agree to import, access or otherwise use only permission-based lists (note: purchased lists may not be used; please contact youmail if you have questions).

10.3 You cannot mail to distribution lists, newsgroups, or spam email addresses.

10.4 You are responsible for monitoring, correcting, processing unsubscribe requests within 10 days, and updating the email addresses to which messages are sent through your youmail account.

10.5 Emails that you send through the Service may generate abuse complaints from recipients. You are responsible for ensuring that your email campaigns do not generate a number of abuse complaints in excess of industry norms. youmail, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.

10.6 youmail, at its own discretion, may immediately disable your access without refund to the Services if we believe in our sole discretion that you have used the Services for unlawful or prohibited purposes, violated any of the email and permission practices listed above, or the youmail Anti-Spam Policy.

11.Confidentiality and Privacy

youmail agrees that it will:
(i) only use the personal or commercial information provided by you which is handled by youmail for the purpose of providing the Service in connection to which access to the personal information has been granted;
(ii) take reasonable steps to ensure that the personal information used or held as part of the provision of the Services, is protected against misuse and loss, and from unauthorised access, modification or disclosure;
(iii) not disclose any personal or commercial information without written authority from you (except to the individual to whom the personal information relates) and will notify you immediately if youmail becomes aware that a disclosure of personal information may be required by law;
(iv) not knowingly do anything with the personal or commercial information that will cause you to breach your obligations under applicable laws and regulations.

12. Ownership and Copyright

12.1 A royalty free license to use all creative concepts, media and templates custom developed by youmail for you will pass to you once youmail’s invoices have been paid in full.

12.2 You agree if that if you, or an agent of your other than youmail attempts to alter or modify your email and an error occurs as a result, that you will be liable for the cost to repair the errors at youmail’s standard hourly rates at that time.

12.3 All your customer email database records uploaded and stored on the youmail servers remain at all times your property. youmail has no rights to ownership or use of customer email database records except for the express purposes outlined in our project proposal as agreed between you and youmail.

12.4 You agree that any ideas, concepts or other intellectual property rights related in any way to the techniques, knowledge or processes and all work performed by youmail connected with the provision of the agreed Services, are the exclusive property of youmail.

13. Disengagement

In the event that either you or youmail decides to withdraw all or part of the Services, youmail shall use it’s reasonable endeavours to effect an orderly transition.

14. External Communications

14.1 You agree that youmail may list you as a client and display your logo on the youmail website and/or other youmail presentation material in a format that is acceptable to you.
14.2 youmail agrees that should it desire further representation from you in the form of endorsements, case studies or any other format, that your approval will be sought before any such representation proceeds.

15. Disputes

15.1 In the event of a dispute arising out of or in connection with the provision of the Services, both parties will comply with the following disputes procedure before commencing any proceedings.
15.2 Should either party claim a dispute, that party will promptly give notice to the other party in writing  specifying the nature of the dispute.
15.3 On receipt of such a notice claiming a dispute, both parties will endeavour in good faith to resolve the dispute.
15.4 If the dispute is not resolved within seven days of the notice claiming a dispute (or such further period as agreed in writing by both parties) then a mediator will be appointed according to the following provisions:
(i) The dispute will be submitted to mediation, administered by an independent mediation service agreed by both parties and held in accordance with its mediation rules.
(ii) Pending resolution of the dispute both parties will continue to perform their obligations under these Terms of Service without prejudice to their respective rights and remedies.

Contact Us:

YouMail - Auckland

PO Box 33 463, 17 Esmonde Road,
Takapuna, Auckland
Phone: 09 485 3009
Email: youmail@salesappcentre.co.nz