1. Services and Support
1.1 The Services are provided subject to this Agreement, as it may be
amended by Spiral, and any guidelines, rules or operating policies that
Spiral may establish and post from time to time (the "Agreement"). By
posting updated versions of the Agreement at the Spiral website, or
otherwise providing notice to you, Spiral may modify the terms of the
Agreement 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 Agreement on the Service.
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 web sites 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.
1.4 Both the number of e-mail messages sent and the number of KiloBytes
of data transferred are metered by Spiral. Normal Spiral 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 Spiral for Mailroom are non-refundable, unless an
account is terminated by Spiral for a reason other than violation of the
Anti-Spam Policy. Payment for Services will be made within 20 days of
date of invoice, unless other payment arrangements have been made
between you and an authorised Spiral representative.
1.6 For all accounts, Spiral may charge an account re-activation fee
should an account need to be re-activated by customer after an account
has become de-activated due to non-payment or an untimely authorization
for payment.
1.7 You must complete the registration form, either hardcopy or online,
in order to use the Services. You will provide true, accurate, current,
and complete information about yourself as requested in the registration
form. As part of the registration process, you will identify an e-mail
address and password for your Spiral 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. Spiral
reserves the right to refuse registration of, or cancel, accounts it
deems inappropriate.
1.8 It is understood that Spiral makes no guarantee that HTML messages
will be rendered properly on all recipients' e-mail programs, due to the
wide variety of HTML generation tools available. Spiral 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 across all e-mail platforms due to the number of different
HTML composition tools available. For example, if you use Microsoft Word
to generate HTML e-mail messages, it is expected that recipients of your
message using a non-Microsoft e-mail application may have difficulty
reading your message. For best results Spiral recommends, but does not
guarantee, the use of HTML editors that generate HTML that adheres to
W3C standards.
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. If you are using the Services in any
country in the European Community, the prohibition against modifying,
translating, reverse engineering, decompiling, disassembling or creating
derivative works based on the Services or the Software does not affect
your rights under any legislation implementing the E.C. Council
Directive on the Legal Protection of Computer Programs.
2.2 You acknowledge and agree that the Services and the Spiral company
names and logos and all related product and service names, design marks
and slogans, are the property of Spiral 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 Spiral. 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 Spiral 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 Spiral 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
Spiral has no obligation to monitor the content provided by you or your
use of the Services, Spiral 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 laws that may
apply in your local area is prohibited. This may include material that
is obscene, threatening, harassing, libelous, or in any way a violation
of intellectual property laws or a third party's intellectual property
rights.
2.5 In using the varied features of the Services, you may provide
information (such as name, contact information, or other registration
information) to Spiral. Spiral 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 Spiral 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, Spiral 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 Spiral from time to time.
2.8 You may not use Spiral to distribute illegal contests, pyramid
schemes, chain letters, or multi-level marketing campaigns.
2.9 You may not use Spiral to send email campaigns that link to or
display nudity, obscene content, gambling related content,
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@spiral.co.nz or by sending written notice to Spiral Web
Design, PO Box 33360, Petone, Wellington, New Zealand. No refunds will
be issued if you terminate this agreement.
3.2 Spiral may terminate this Agreement or the Services at any time with
or without cause, and with or without notice. Spiral shall have no
liability to you or any third party because of such termination. If
Spiral terminates this agreement because you violated the Anti-Spam
policy, no refund will be issued.
3.3 Spiral 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 Spiral's
sole discretion) as inactive, Spiral 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
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. Spiral 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 Spiral 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 Spiral 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 Spiral 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 "Spiral
") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL
DAMAGES, EVEN IF Spiral 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, Spiral 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 Spiral TO YOU WILL BE LIMITED TO THE AMOUNT
YOU PAID FOR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION
AND EXCLUSION MAY NOT APPLY TO YOU.
6. Export of Services or Technical Data
You may not remove or export from New Zealand or allow the export or
re-export of the Services, or any direct product thereof, including
technical data, in violation of any restrictions, laws, or regulations
of New Zealand or any other applicable country.
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 Spiral and you agree that the 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 Spiral 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 without
regard to its choice or law or conflict of laws provisions. All legal
actions in connection with the Agreement shall be brought in the courts
located in New Zealand.
8. System Requirements
It is understood that in order to use Spiral's Mailroom Email
Software, a Windows PC with Internet Explorer 4.0 or higher must be
used. Additionally, a stable connection to the Internet is required.
Mailroom may work in a limited manner on Macintosh, Unix, and other
platforms, but there is no guarantee of functionality on non-Windows
platforms. Additionally, Mailroom may work in a limited manner on a
non-Internet Explorer web browser (such as Mozilla 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 Spiral customers must follow the rules of the federal CAN-SPAM
act and Spiral's Anti-Spam policy when sending e-mail through the
service. Accordingly, we require the following of e-mail messages sent
through the Spiral system:
- All e-mails must contain a one-click unsubscribe link. Our
service scans every campaign for the existence of an unsubscribe
link. If an unsubscribe link is not detected, the user is informed
and is recommended 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.com."
These 3 guidelines will help ensure that our software maintains its
reputation and white-listing status with a number of major ISPs and
whitelisting programs. If at any time your campaign is flagged as SPAM
by an AOL recipient, Spiral 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
Spiral. 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 Spiral 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 Spiral account.
10.5 Emails that you send through the Service may generate abuse
complaints from recipients. As a matter of privacy, Spiral cannot share
with you the email addresses of those who complain about your email
campaign. You are responsible for ensuring that your email campaigns do
not generate a number of abuse complaints in excess of industry norms.
Spiral, 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 Spiral, at its own discretion, may immediately disable your access
without refund to the Services if Spiral believes in its sole discretion
that you have violated any of the email and permission practices listed
above, or the Spiral Anti-Spam Policy.
If you have any questions about our Terms and Conditions or our
Anti-Spam Policy please contact us at:
Spiral Web Design Ltd
240 Jackson Street
PO Box 33 360
Petone
Wellington
New Zealand
Telephone +64 4 5862686
Facsimile +64 4 5870181