WARNINGS OF SERIOUS LEGAL CONSEQUENCES
Warning: if you engage in certain conduct, such as violating laws that regulate sending out and the content of bulk email, try to take advantage of us in violation of our Terms and Conditions by taking such actions as using our servers to host images for your website, instead of just emails you send using AF Mailer, sending out emails created using AF Mailer through another service or failing to pay an amount you owe us, we will be entitled to collect from you the higher of a pre-set amount or a multiple of your charges for one year on an annualized basis (which is a reasonable pre-estimate of the actual damages we would likely suffer from such conduct) plus attorney fees. We offer very powerful tools at a extremely low price. In exchange we expect our customers to act with integrity and follow our rules in order to help us maintain our reputation as having customers who only send bulk email to people who have consented to receiving them or with whom they have had a relationship from earlier selling or licensing (or negotiating to sell or license) a product or service and to not otherwise abuse our system.
(Applies to All Members of AF Mailer)
- Who We Are : “AF Mailer” is a trade name and service mark of AlmostFree Group, that owns and operates the website with the URL:http://www.almostfree.co.za/ (the “Website”).
- Purpose : The purpose of these Terms and Conditions (this “Agreement”) is to set forth the terms and conditions under which you are permitted to use our email/electronic newsletter creation, distribution and management system (the “Services”). Any email, including but not limited to any email newsletters, sent out using the Services, are referred to herein as an “Email.”
- Changes : We reserve the right to change any of the terms of this Agreement by posting the revised Terms of Conditions on our Website and/or by sending an email to the last email address you have given to us. Unless the Term is terminated within ten (10) days, this new Agreement will be effective immediately with respect to any continued or new use of the Services.
- Eligibility : We require that any Member be at least eighteen (18) years of age. By using the Services, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Services does not violate any applicable law or regulation. Your uploads may be deleted and your subscription may be terminated without warning, if we have reason to believe you are under eighteen (18) years of age.
- Charges and Payments :
- Monthly Plans
- 5.1 Our charges for monthly plans are posted on our Website and may be changed from time-to-time. Payments are due for the full month for which any part of the month is included in the “Term.” Payments are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly payment.
- 5.2 As long as you are a Member or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.
- 5.4 You may elect to buy “Email Credits” to use our Services, as explained on our website, rather than sign up for a monthly plan. If you elect a “Pay-as-You-Go Plan,” you will still be considered a “Member” and all the terms of this Agreement will still apply to you other than the requirement that you pay us monthly.
- 5.5 We are required to provide a refund only if we terminate our Services to you without cause before the end of a month for which you have paid. There is no other circumstance in which you will be entitled to a refund from us. We may, at our sole discretion, offer refunds in other situations subject to any Member seeking such refund applying for the refund in accordance with the requirements we post on the website, which may be changed from time to time.
- Term, Termination and Removal : Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. We may suspend our Services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment or reimburse you for unused Email Credits if we terminate you without cause. Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our Website and any other storage.
- Account and Password : You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
- Proprietary Rights Owned by Us : You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.
- Proprietary Rights Owned by You : You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
- General Rules : You agree to the following:
- You will not post on the Website, including in any Emails created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.
- You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
- You will not share your password.
- You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
- You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party’s rights, including, but not limited to, copyrights and privacy and publicity rights.
- You will not set up multiple accounts for any individual, organization or entity or in order to send substantially similar content unless you are part of a franchise.
- You will not import or incorporate into any lists, emails or uploads to our servers any of the following information: Social Security Numbers, passwords, security credentials, or sensitive personal information of any kind.
- You will not send transactional messages through AF Mailer unless you use our Simple Transactional Service.
- Anti-Spam and Abuse Related Rules : You agree to the following:
- Definition of SPAM:
- The word “Spam” as applied to Email means Unsolicited Bulk Email (“UBE”).
It is a concern to us if you use AF Mailer to send any unsolicited emails to anyone with whom you have no relationship. It is much more of a concern, and more likely to cause our system to be blocked by various ISP’s, for you to send an unsolicited email to an entire list of people you don’t know.
- Permission Lists Only: You may use AF Mailer only to send Emails to individuals and entities that either:
- Possibility 1 – Consent Obtained
- A. gave or give you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission and either:
- Possibility 2 – Sold or Negotiated to Sell Product or Service
- B. gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:
If you send Emails to a list, and you get an unusual amount of SPAM complaints (more than 1 out of 1,000), ISPs will begin blocking future emails from your company. They will also request (that’s putting it mildly) that AF Mailer shut down your account. So if you don’t have proof that each recipient on your list has opted-in to receive your emails, or otherwise meets the above requirements, don’t import them into AF Mailer.
You should only use AF Mailer to send newsletters, updates, and promotions to people who specifically requested email from you.
- We’re In This Thing Together: We do what we can to keep our system clean, but you agree to pitch in too. Here’s how:
- Sending your first campaign to an old list? Many recipients won’t remember you, and will report you for spamming.
- Don’t just import your entire Outlook Address Book. Export them into a spreadsheet, then take some time to clean out bad addresses. If you import even one address by mistake, that person can get you blacklisted and shut down.
- Importing from a CRM? Break it into separate segments or interest groups so you can send relevant content to your customers (“We met at a tradeshow, You bought xyz from us in the past, You are a client of…” etc). Don’t just mix a bunch of different lists together and send one “blast” to all of them.
- Sending on behalf of a client? Educate your client about responsible email marketing. They’re depending on you to be the expert. Here are some email marketing resources for you.
- CRM, Salesforce, and API Imported Lists
CRM tools are great for maintaining relationships with prospects and leads, then converting them into paying customers. Or just nurturing your customer relationships. But CRM tools are built for one-to-one communication. Email marketing tools like AF Mailer are built for one-to-many communication. They are not the same. Spam laws apply when you do one-to-many email marketing.
Before importing any list into AF Mailer from your CRM or any other database you maintain, understand our permission-lists-only rules. Remove any prospects or leads who did not explicitly request email marketing from you. Even if you’re sending email marketing to customers who have consented to receive your Email, you are still required, under applicable law, to allow them to opt-out of your email marketing list (you may need to turn that feature ON in your CRM tool). The simple fact that a recipient is “in my CRM” is not the same as “they gave us permission to send them email marketing.”
- Prohibited Content and Industries
Don’t use AF Mailer to send anything offensive, to promote anything illegal, or to harass anyone. You may not send:
- Pornography or other sexually explicit Emails
- Emails offering to sell illegal substances
- Emails that violate the CAN-SPAM Law
Also, there are some industries that send certain types of content that result in higher than normal bounce rates and abuse complaints, which in turn jeopardize the deliverability of our entire system. No offense intended, but because we must ensure the highest delivery rates possible for all our customers, we do not allow businesses that offer these types of services, products, or content:
- Illegal goods or services
- Escort and dating services
- Pharmaceutical products
- Work from home, Internet Lead-gen, Make money on online opportunities, etc.
- Online trading, day trading tips, or stock market related content
- Gambling services, products or gambling education
- Multi-level marketing
- Affiliate marketers
- Credit repair, get-out-of-debt content
- Mortgages and/or Loans
- Nutritional Supplements, Herbal Supplements or Vitamin Supplements
- Pornography or nudity in content
- Adult novelty items or references in content
- List brokers or List rental services
- Marketing or sending commercial email without proper permission
Generally speaking, if you’re in an industry that is frequently associated with spam, you know who you are (it’s probably why you’re reading this far, right?). We make no judgments about your line of business, but we cannot afford to risk our deliverability. In fact, most ESPs like AF Mailer will not be able to help you. You will most likely need to look into setting up your own mail servers. The term to search on is “email delivery server.” There are many industrial strength MTAs to choose from with built-in delivery and reporting tools for high-volume senders.
- Who Can Use AF Mailer
If you do not meet these eligibility requirements, you may not use the AF Mailer service:
- You must be at least 18 years of age, and be able to form legally binding contracts under applicable law.
- You must complete the registration process and agree to the terms of this Agreement. All contact information you submit must be true, complete, and up to date.
- AF Mailer does reserve the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, in its sole discretion.
- Bandwidth Abuse: Image hosting, API, Tracking
You may not use our bandwidth for anything other than your AF Mailer email marketing. In this regard, you agree to the following:
- Unlike some other email marketing services, we provide image hosting for your email campaigns totally free. This doesn’t mean you can host images on our servers for other uses, like your website. If we detect that you’re using our hosting services for anything other than your email campaigns, we have the right to delete the image. Depending on your intent, we may even replace the image with something you don’t want to see.
- Not to build a campaign in AF Mailer, then send it using some other delivery tool. Yeah, we can see when that happens. If you do that we may, and reserve the right to, shut your account down, replace all images in your campaign, and redirect all hyperlinks to point somewhere else. You may not like the replacement images.
- If you integrate with AF Mailer using our API, you must use efficient programming, which will not cause too many requests to be made in too short a period. We reserve the right to throttle your API connections, or suspend or terminate your AF Mailer account.
- Fees, Refunds, Account Suspensions, Etc.
- AF Mailer reserves the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.
- If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
- If, for some reason, we are unable to process your credit card order, we will attempt to contact you by email and we will suspend usage of your account until your payment can be processed.
- You agree to pay for all emails you send from your account, even if messages are blocked by any third party (we have no control over your recipients’ email servers, ISP availability, personal spam filter settings, etc)
- Avoiding Spam Related Problems
As an email marketing service provider, we feel it’s our duty to be extra vigilant about preventing spam related abuses. It’s not just bad for the Internet community in general—if illegal and/or abusive spam gets sent from our system, we’d get blocked by all major ISPs, which would make our system useless for the thousands of users who depend on us.
It’s in our best interest to keep our system clean, because our reputation and deliverability depends on it. So here’s what we do:
- Right to Review Email Campaigns
- No Warranties : to the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.
- Limitation of Liability : to the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and the services including any downloads from the website. under no circumstances shall we or any of our employees or representatives be liable for any indirect, punitive, special or consequential damages even if we or any of our employees or representatives have been advised of the possibility of such damages. our total liability in any event is limited to the amount, if any, actually paid by you for use of the website and the services for the one month period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.
- Indemnity : You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims not permitted under this Agreement due to a “Limitation of Liability” or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this Website or the Services. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.
- Attorney Fees : In the event we file an action against you claiming you breached this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney’s fees in addition to any damages or other relief which we may be awarded.
- Disclaimers : We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.
- Reporting Violations : If you become aware that any other person is violating any of the terms and conditions of this Website, please notify us immediately. If you believe that any person has posted material in violation of any copyrights that you may have, you may notify us in accordance with our Copyright Policy. If you believe that any user of this Website has posted materials in violation of any other rights that you may have, you may notify us in accordance with our Removal Policy.
- Assignments : You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity at our discretion.
- Compliance With Law : In using the Services, you agree that you will comply with all applicable laws.
- 21. Warranties of Compliance
- 21.1 You represent and warrant that in compiling your Email distribution list, sending Emails via the AF Mailer and collecting information as a result of individuals visiting your website or otherwise, with respect to your customers and potential customers who reside in the EEA, you:
- (b) Represent and warrant that you have complied, and will comply, with all data protection and privacy laws and regulations applicable to the countries in which you are sending any form of email via AF Mailer including, for example, with respect to the, the Data Protection Act, and the regulations relating to the Electronic Communications Directive. In this regard, you represent and warrant that you have collected, stored, used and transferred all data relating to any individual in accordance with all data protection laws and regulations relating to the country in which such individual resides and obtained all necessary consents to enable AF Mailer to receive and process that data and forward communications to that individual on your behalf.
- You further agree to indemnify and hold us harmless from any losses, including attorney fees, resulting from your breach of any part of the foregoing warranties.
(Additional Provisions Applicable to All Members)
- 22. Miscellaneous
- 22.1 Force Majeure : We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow downs over the internet or any third party internet service providers.
- 22.2 Survivability : The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.
- 22.3 Severability : The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
- 22.4 Interpretation : The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.
- 22.7 Further Actions : You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
- 22.8 Notification of Security Breach : In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a “List”), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.
- 22.9 Amendments : No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.
- 22.10 No Changes in Agreement at Request of Member : Because of our huge number of Members, we cannot, as a practical matter, change this Agreement for any one Member or group of Members. If we did that, keeping up with the changes alone would be a logistical nightmare. In addition one reason we are able to offer one of the most powerful email/electronic newsletter creation, distribution and management systems at a low price is that we are able to use this Agreement to reduce our financial risks.