Onze algemene voorwaarden
Qaraqter BV (KvK 51428628) (“HTML-mailing”, “we”, “our” and “us”) provides its users (“you” and “your”) with a variety of products, services, applications, tools and other resources (including our website(s)) (the “Services”) to enable you to collect visitor and subscriber information from your end user customers (each, a “Subscriber” and, collectively, your “Subscribers”) and to help you create, launch, and manage online email campaigns.
Please read this Agreement carefully before proceeding with any use of the Services. By checking the “Ik ga akkoord met de voorwaarden, het privacybeleid en het anti-spambeleid” box on the Gratis proberen page or after logging in for the first time, you accept and agree to be bound by this Agreement.
If you do not accept the terms and conditions of this Agreement, please exit this website and cease using the Services immediately.
You must complete the registration form on the signup page 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 provide an email address, username and password for your HTML-mailing account. You are responsible for maintaining the security of your account, username, passwords, and files and for all uses of your account and of the Services in your name. HTML-mailing reserves the right to refuse registration of, or cancel accounts it deems inappropriate.
1. Services and Support
1.1 By posting updated versions of the Agreement on the Services, or otherwise providing notice to you, HTML-mailing may modify the terms of this 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 HTML-mailing website. Your continued use of the Services will constitute your acceptance of the modification(s) to the Agreement. HTML-mailing will use reasonable efforts to make you aware of any changes to the terms of this Agreement. If you elect to discontinue using the Services due to any changes to the Agreement made under this section 1.1, you may be entitled to a refund for any unused, prepaid amounts for the Services.
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, your use of the Services is expressly prohibited.
1.3 The Services enable you as corporate, small business and community websites operators to sign up Subscribers, collect and retrieve Subscriber sign-up data, and to develop and execute email communications with Subscribers.
1.4 Both the number of email messages you send and the number of KiloBytes of data transferred when sending email messages are metered by HTML-mailing. We reserve the right to charge for certain or all Services; you must pay all applicable fees in order to use our Services. If you have a paid subscription version of the Services, you are allowed to send an unlimited number of email messages, provided that the total KiloByte data transfer of each message can be no more than 300kb.
As part of the Services, you may be able to send transactional messages to your Subscribers. “Transactional Messages” are defined as communications that may be [automatically] sent upon a trigger action by a Subscriber (for example, if a Subscriber makes a purchase on your site or application, the Subscriber may automatically receive an email with an order confirmation and shipping updates). You may not use Transactional Messages to send bulk or commercial messages to Subscribers unless the applicable Subscriber has opted in and agreed to receive such messages. If you use the Transactional Messages feature, you must allow your Subscribers to “unsubscribe” from such communications and/or allow your Subscribers to adjust their preferences to receive Transactional Messages on the relevant account settings or preferences page or tab of your services and you must promptly comply with all such “unsubscribe” requests. You must also create and operate a unique email alias or other means for keeping track of and responding to Subscriber feedback and requests regarding Transactional Messages you send.
1.5 Current Subscription Plan options for the Services (including features for each Subscription Plan) are available here. Pricing for each Subscription Plan is also available on HTML-mailing’s Billing Page inside the application. All pricing for the Services are subject to change at any time. You are responsible for reviewing the HTML-mailing Billing Page and paying all fees associated with the Subscription Plan you have selected. In order to continue paying the listed fees for the Subscription Plan you have selected, you may only use the features included in that Subscription Plan. If you use any features which are only included in a higher-priced Subscription Plan, or if you otherwise exceed the allowable limits of your current Subscription Plan, HTML-mailing reserves the right to automatically upgrade your account to the appropriate higher-priced Subscription Plan and charge you the applicable fees for that Plan. HTML-mailing may contact you to warn you if you have exceeded the included features or other limits of your current Subscription Plan, but you are solely responsible for reviewing the HTML-mailing Billing Page and remaining aware of the limits of your Plan. All fees paid to HTML-mailing for the Services are non-refundable, unless your account is terminated by you under clause 1.1 or by HTML-mailing due to your breach of this Agreement (including, without limitation, the Anti-Spam Policy). Payment for Services must be made by a valid credit card accepted by HTML-mailing, unless other payment arrangements have been made between you and an authorized HTML-mailing representative. You hereby authorize HTML-mailing to charge your credit card whenever you use the Services to send a campaign to more than 5 recipients, or on a monthly basis in accordance with the fees associated with Subscription Plan you have selected and/or used. Fees are payable in US dollars. If HTML-mailing is for any reason unable to effect automatic payment via your credit card, you will be notified via email and HTML-mailing reserves the right to suspend your access to and/or use of the Services until you are current on your payments.
1.6 For all accounts, HTML-mailing may charge an account re-activation fee should an account need to be re-activated after an account has become de-activated due to non-payment, an untimely authorization for payment, a breach of this Agreement, or any other reason.
1.7 HTML-mailing makes every reasonable attempt to make sure that all email messages sent through our Servers follow email standards, but we cannot guarantee that messages will look consistent across all email platforms due to the number of different HTML composition tools available. For example, if you use Microsoft Word to generate HTML email messages, it is expected that recipients of your message using a non-Microsoft email application may have difficulty reading your message. HTML-mailing recommends the use of HTML editors that generate HTML that adheres to W3C standards.
1.8 By submitting any User Content (defined below) through or using the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Content in connection the Services and our (and our successors’ and assigns’) businesses. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Content unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
“User Content” means anything you or your Subscribers post, upload, share, store or otherwise provide through or using the Services (including, without limitation, any and all emails, messages, materials, images, text, and other content).
HTML-mailing reserves the right, but has no obligation, to monitor any and all User Content and your use of our Services. HTML-mailing may, in our sole discretion, remove any User Content and/or suspend or terminate your use of the Services for any reason (including, without limitation, any alleged breach of any term of this Agreement), and you are not entitled to any refund or credit relating to such removal, suspension or termination. You are solely responsible and liable for all content, materials, and information that you upload and/or transmit using or relating to the Services.
2. Restrictions and Responsibilities
2.1 This is an Agreement for the Services, and you are not granted a license to any software under this Agreement. Except solely to the extent that applicable laws prevent HTML-mailing from doing so, 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, or data related to the Services (the “Software”); (ii) remove any proprietary notices or labels from the Services or any Software; (iii) reproduce or copy the Software or the Services or any part thereof; (iv) modify, translate, or create derivative works based on the Services or any Software; or (v) 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 or Australia, 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 or the Australian Copyright Act 1968 (Cth).
2.2 You acknowledge and agree that the Services, the Software, and the HTML-mailing company names and logos and all related product and service names, design marks and slogans (collectively, the “Marks”), and all other material comprising the Software and the Services, are the property of HTML-mailing or its affiliates or suppliers. Unless stated otherwise, all Marks are protected as the copyright, trade dress, trademarks and/ or other intellectual properties owned by or licensed to HTML-mailing. 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 HTML-mailing. 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 HTML-mailing or its third party suppliers, as applicable.
2.3 You represent, covenant, and warrant that you will use the Services only in compliance with this Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, and defamation and regulations such as HPIAA, GLB, EU Data Privacy Laws and other similar or applicable laws). You are solely responsible and liable for compliance with the foregoing, and agree to indemnify and hold us harmless for any alleged violation relating to the foregoing. Transmission or solicitation of any material that violates Australian and/or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation or infringement of intellectual property laws or a third party intellectual property rights. You agree that you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party in connection with the Services. You hereby agree to indemnify and hold harmless HTML-mailing 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.
2.4 While using the Services, you may provide information (such as your name, contact information, and/or other registration information) to HTML-mailing. HTML-mailing may use this information and any technical information about your use of the Services to tailor the user experience of the Services to you, facilitate your use of the Services, or to communicate with you.
2.5 HTML-mailing will not use any of your subscriber lists or any other Customer information for any other purposes than those related to the Services. In addition, HTML-mailing will not use Subscriber information for the purpose of sending unsolicited commercial email.
2.7 You must not use the Services to administer illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or to conduct any other prohibited activities.
2.8 You must not use the Services to send email campaigns that link to or display nudity, obscene content, gambling related content, pay day lender related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content in violation of any applicable laws or that we deem inappropriate in our sole discretion.
2.9 You must not use the Services for the sending of unsolicited email (sometimes called “spam”). You must comply at all times with our Anti-Spam policy (which forms part of this Agreement).
2.10 All rights not expressly granted are reserved.
2.11 The Services may contain materials produced or provided by third parties or links to other websites. Such materials and websites are provided by third parties and are not under HTML-mailing’s direct control and HTML-mailing accepts no responsibility or liability in respect of any such third party materials or for the operation or content of other websites (whether or not linked to the Services). You acknowledge that HTML-mailing is entitled to require you to remove any link from another website to the Services which you install without obtaining HTML-mailing’s prior written consent.
3. Reselling and Subcontracting the Services
Reselling of the Services to third parties is permitted subject to the following conditions:
3.1 Access to, and use of, the Services by Subscriber(s) granted access by you:
(a) does not in any way diminish your strict obligation to ensure compliance with the terms of this Agreement; and
(b) does not in any way diminish HTML-mailing’s right to enforce the terms of this Agreement, without liability to you or your Subscriber(s), including suspension or termination of access to the Service, whether or not it may have an adverse impact on your Subscriber(s) or the ability of Your Customer to use the Services.
3.2 You must:
(a) enter into a binding contractual relationship with each applicable Subscriber on terms no less protective of HTML-mailing than this Agreement and must include, without limitation, the HTML-mailing Anti-Spam Policy;
(c) in the event that your Subscriber(s) transfers personal data from the European Economic Area direct to the Servers, ensure that the Data Transfer Clauses form part of your contractual relationship with your Susbscriber(s); and
(d) provide all customer relationship management, including first level support services in relation to the Services, to your Subscriber(s).
Notwithstanding any of the foregoing, you remain fully liable and responsible for any breaches of this Agreement by any of your Subscribers.
3.3 You hereby agree to indemnify and hold harmless, on an actual indemnity basis, HTML-mailing, from and against all costs, expenses, losses and liabilities arising in any way (including under statute, the law of tort, equity or any other theory of law whatsoever) from or in relation to use of the Services by your Subscribers and all other acts and omissions of your Subscribers otherwise taking place on or in relation to the Services.
3.4 HTML-mailing will deduct its standard fee and remit to you the balance of all payments received from your Subscribers within  Days of the date of payment.
4.1 You may terminate this Agreement at any time by contacting us or by sending written notice to HTML-mailing, Vondellaan 42A, 3521 GH Utrecht, Nederland. Correspondence must include your first name, last name, and your HTML-mailing company name.
4.2 HTML-mailing may terminate this Agreement or the Services at any time with or without cause, and with or without notice. HTML-mailing shall have no liability to you or any third party because of such termination. If HTML-mailing 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.
4.3 HTML-mailing may delete any of your archived data within 30 days after the date of termination. Any statutory retention requirements with respect to your data or information remain your responsibility. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranties, disclaimers and limitations of liability.
4.4 If you do not log into your account for more than 700 days, your account will become inactive. When an account is classified (at HTML-mailing’s sole discretion) as inactive, HTML-mailing 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 HTML-MAILING’S DATABASE.
5. Warranties, Disclaimer and 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. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HTML-MAILING DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE 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 TO THE EXTENT PERMITTED BY LAW HTML-MAILING 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 nonperformance of the Services shall be for HTML-mailing to use commercially reasonable efforts to adjust or repair the Services, or where such adjustment or repair is not feasible, for HTML-mailing to either (at its sole discretion) perform the Services again or provide you with a refund for the amount actually received by HTML-mailing (exclusive of all taxes, for the relevant Services.
6. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL HTML-MAILING OR ANY OF ITS SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, SUPPLIERS, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS HTML-MAILING’S “AFFILIATES “) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA, OR FAILURE TO REALISE ANTICIPATED SAVINGS OR BENEFITS OR BUSINESS OPPORTUNITIES), OR FOR ANY CLAIM BY ANY OTHER PARTY.
HTML-MAILING AND ITS AFFILIATES’ LIMITATION OF LIABILITY APPLIES WHETHER THE CLAIM IS IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR EQUITY AND EVEN IF HTML-MAILING OR ITS AFFILIATES HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
YOU AGREE THAT HTML-MAILING’S LIABILITY TO YOU AT LAW WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH YOU CONTRIBUTED TO THE LOSS.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, HTML-MAILING OR ITS AFFILIATES 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), TO THE FULLEST EXTENT PERMITTED BY LAW THE LIABILITY OF HTML-MAILING AND/OR ITS AFFILIATES TO YOU WILL BE LIMITED TO:
(A) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND
(B) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES.
7. Export of Services or Technical Data
You may not remove or export from Australia or the U.S. 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 Australia and all other applicable countries.
8.1 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.
8.2 HTML-mailing 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.
8.3 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 HTML-mailing in any respect whatsoever.
8.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
8.5 The Agreement shall be governed by the laws of the State of NSW Australia without regard to its choice or law or conflict of law provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Sydney, New South Wales, Australia.
8.6 The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded from this Agreement.
9. System Requirements
It is understood that in order to use the Services, a modern browser such as Internet Explorer 10, Firefox 20, Safari 5 or Google Chrome 30 is required. Additionally, a stable connection to the Internet is required. The Services may work in a limited manner on other web browsers (such as earlier versions of the previously mentioned browsers), but the Services were not designed for use on web browsers other than those recommended above.
10. Compliance rules for sending email (and your spam indemnity)
All HTML-mailing customers must follow the rules of the Australian Spam Act 2003 (Cth) (and equivalent anti-spam legislation in all applicable countries) and HTML-mailing’s Anti-Spam policy when sending emails through the Services. We require the following (among other things) of all email messages sent through the Services:
1. All emails must contain a HTML-mailing “unsubscribe” link that allows subscribers to instantly 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 HTML-mailing. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. HTML-mailing scans every campaign for the existence of an unsubscribe link. If an unsubscribe link is not detected, you will be informed and required to include a HTML-mailing unsubscribe link before continuing.
2. All emails must contain non-Internet contact information of the sender or the entity on whose behalf the email was sent, such as that entity’s address or phone number.
3. All emails 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 email list at www.abc.com.”
4. All emails must be compliant with any disclosure requirements that apply to the sender (e.g., some countries’ laws require that business letters, including emails, contain further identification details as to the form of the organization, the place of incorporation, the names of executives etc.)
These 4 guidelines will help ensure that HTML-mailing 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 a recipient, HTML-mailing reserves the right to cancel your account without notice. For further information in relation to spam, please read our Anti-Spam Policy (which forms part of this Agreement, including your spam indemnity).
11. Email and Permission Practices
Please see our Anti-Spam Policy for further information.
11.1 You agree to import, access or otherwise use only permission-based lists (note: purchased lists may not be used; please contact HTML-mailing if you have questions).
11.2 You cannot mail to distribution lists, newsgroups, or spam email addresses.
11.3 You are responsible for monitoring, correcting, processing unsubscribe requests within 5 days, and updating the email addresses to which messages are sent through your HTML-mailing account.
11.4 Emails that you send through the Services 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. HTML-mailing, 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.
11.5 HTML-mailing, at its own discretion, may immediately disable your access to the Services without refund if HTML-mailing believes in its sole discretion that you have violated any of the email and permission practices listed above, or our Anti-Spam Policy.
12. Use of the Services
You will not violate or attempt to violate the security of our website or the Services. You will not hack into the HTML-mailing website(s), HTML-mailing’s computer systems or the computer systems of other users of the Services. Hacking means unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.
13. Website and Services availability
From time to time down-time, either scheduled or unscheduled, may occur. HTML-mailing will work within reason to ensure this amount of down-time is limited. HTML-mailing will not be held liable for the consequences of any down-time.
HTML-mailing cannot guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of all programs and files associated with the Services, and you release HTML-mailing entirely of all responsibility for any consequences of its use.
14. Force Majeure
HTML-mailing will not be liable by reason of the failure in the performance of obligations under this Agreement by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond HTML-mailing’s reasonable control.
15. Overseas Access
The Services may be accessed throughout Australia and overseas. HTML-mailing makes no representations that the Services comply with the laws (including intellectual property laws) of any country outside Australia. If you access the Services from outside Australia, you do so at your own risk and are responsible for complying with the laws in the place where you access the site.