SMAILING WEB SITE AND PRODUCTS TERMS AND CONDITIONS OF USE

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE. BY USING THIS WEB SITE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THIS WEB SITE.

Both SMailing and NewGoodMail, Email Marketing Product, Product   references are related to the Smart Mailing Solution Application.

e-Point ltd. ("SMailing") provides small and medium sized businesses and organizations with (i) a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online email campaigns (the "Email Marketing Product"), (ii) a variety of tools and resources to create, launch, and manage online surveys (the "Survey Product"), and (iii) a variety of related offerings, including email archiving and premium image hosting services. The Email Marketing Product, the Survey Product and any related offerings are referred to in these Terms and Conditions of Use as the "Products"). SMailing’s Products may not be used for the sending of unsolicited email ( sometimes called "spam"). See our Anti-Spam Policy.

The following are the terms and conditions for access to this web site and use of the Products. By choosing to login you are accepting the terms of the sMailing License Agreement.


1. Copyright and Trademark Information

Copyright © 2002-2008 e-Point ltd. All rights reserved.

This web site, and the information which it contains, is the property of SMailing and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United Kingdom and Romanian copyright law, trademark law, international conventions and other intellectual property laws. Other SMailing product or service names or logos appearing in this Site are either trademarks or registered trademarks of SMailing, Inc. and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of SMailing's trademark or other intellectual property rights concerning that name or logo.

2. Acknowledgements

Subject in each case to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:

The Products may not be used for the sending of unsolicited email (sometimes called "spam").
The Products may only be used for lawful purposes.
The sMailing Email Marketing Solution will be subject to monthly subscription fees. The sMailing Email Marketing Solution may also be subject to per message and overage charges. Please see our  "Prices" page or call us for any other information.
You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of the Products. Mere agreement of a person or entity to participate in a survey is not consent to receive correspondence from you. You hereby covenant that you shall not use any other lists in connection with your use of the Products. You acknowledge and agree that not all messages sent through use of the Products will be received by their intended recipients.
Every email message sent by you in connection with the Products must contain the SMailing "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
You will comply with the restrictions on content of e-mail messages and activities using the Products as set forth in this Agreement.
You will adopt and maintain the Privacy Policy, which may be modified by SMailing from time to time.

3. Products and Support

The Products are provided subject to these Terms and Conditions of Use, as they may be amended by SMailing, and any guidelines, rules or operating policies that SMailing may establish and post from time to time (collective, the "Agreement"), including without limitation SMailing's customer Privacy Policy, as linked from all email generated from SMailing or otherwise furnished to you (the "Policy") (unless otherwise stated, all references to the Agreement shall include the Policy). By posting updated versions of the Agreement on the newgoodmail.com website, or otherwise providing notice to you, SMailing may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at SMailing's website. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Product. You must complete the registration form on the SMailing sign up web page in order to use the Products. You will need to register separately for the Email Marketing Product and the Survey Product. You shall provide true, accurate, current, and complete information about yourself as requested in the registration form. You may from time to time provide SMailing's service personnel with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by SMailing or its personnel.

4. Fees and Payment

4.1 Fees for Email Marketing Product. For the Email Marketing Product, you will be subject to monthly subscription fees. The Fees are based on the number of emails sent on each month. For purposes of this Agreement, each e-mail sent means one credit consumed. You will be required to submit payment monthly in advance for the Email Marketing Product (unless you have already provided payment or means of payment, such as credit card information) and may purchase, in advance, a monthly subscription for the Email Marketing Product. Access to the Email Marketing Product will be disabled until payment is received. Fees will be billed monthly or your pre-paid account will be debited monthly for the Email Marketing Product. If selected by you, you will also be billed for premium image hosting and email archiving services For PPS you will receive an ivoice at end of each calendaristic month.

4.2  Payment for Products will be made by a valid credit card accepted by SMailing. Checks will be accepted as well. Fees are payable in EURO or RON. If the monthly payment option is selected or if you have previously provided your credit card for payment, you hereby authorize SMailing to charge your credit card for such amounts on a regular monthly basis. If SMailing is for any reason unable to effect automatic payment via your credit card, SMailing will attempt to notify you via email and your SMailing account will be disabled until payment is received. Amounts paid for the Products are not refundable.

4.3  Our monthly based periodic subscriotion plan or the PPS (Pay Per Send) payment structures can be found under our pricing section.

5. Email, Permission Practices, Image Hosting & Prohibited Content

5.1 Subscriber Opt Out. Every email message sent in connection with the Products must contain an "unsubscribe" link 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 SMailing. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission, and update the email addresses to which messages are sent through your SMailing account.

5.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. If you have used the SMailing feature that allows you to request a recipient to confirm that you have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send emails to that recipient. Without limiting the foregoing, you agree that you shall not utilize the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You cannot copy a SMailing template or any other features or functionality from the Products and use them for any purpose other than sending email messages from the Products. Emails that you send through the Product may generate spam complaints from recipients. As a matter of privacy, SMailing 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 spam complaints in excess of industry norms. SMailing, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. SMailing will terminate your use of its Products if SMailing determines that your level of spam complaints is higher than industry norms.

5.3 Footers. For every email message sent in connection with the Products, you acknowledge and agree that SMailing may add an identifying footer stating "Powered by SMailing" or a similar message.

5.4 Use of Images Hosted by SMailing. Images hosted by SMailing on SMailing controlled servers may only be used in connection with the Products and for no other purpose whatsoever.

5.5 Prohibited Content. SMailing prohibits the use of the Products or web site by any person or entity that:

Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, illegal video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, DJ/nightclub, , and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college .
Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
Posts or discloses any personally identifying information or private information about children without their consent (or their parents consent in the case of a minor).
Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
" Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
5.6 Right to Disable Access. SMailing, at its own discretion, may immediately disable your access to the Products without refund if SMailing believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.

6. Restrictions and Responsibilities

6.1 No Rights in Software. This is an Agreement for services and access to this web site, 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 Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.

Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by SMailing in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.

6.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that SMailing perform such work at its standard professional services rates. SMailing can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.

6.3 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). Although SMailing has no obligation to monitor the content provided by you or your use of the Products, SMailing may do so and may block any e-mail messages, remove any such content or prohibit any use of the Products that SMailing believes may be (or is alleged to be) in violation of the foregoing.

6.4 Indemnification. You hereby agree to defend, indemnify and hold harmless SMailing and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products or (iii) otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that SMailing has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.

6.5 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to SMailing. SMailing may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of SMailing, SMailing may share your information with the marketing partner and the marketing partner may share related information with SMailing. SMailing will not provide your contact information to companies you have not authorized for that purpose unless required by law or unless you are terminated from SMailing due to unsolicited commercial email being sent from your SMailing account. SMailing will never sell or rent your contact lists to anyone without your permission. In the event SMailing amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.

6.6 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to SMailing or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to SMailing by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to SMailing by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted—SMailing a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.

7. Termination

You may terminate this Agreement at any time by calling SMailing Customer Support. There are no refunds for any fees paid.

SMailing may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. SMailing shall have no liability to you or any third party because of such termination or action.

SMailing may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 15 days of your last email campaign. SMailing will provide upon request the list of unsubscribe requests from your last campaign. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

If your account is classified (at SMailing's sole discretion) as inactive for over 120 days, SMailing has the right to permanently delete your subscriber data. SMailing will use good faith efforts to contact you via email prior to taking any permanent removal actions.

8. Warranty Disclaimer; Remedies

USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. SMAILING DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND SMAILING 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 Products shall be for SMailing to use commercially reasonable efforts to adjust or repair the Products.

9. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL SMAILING OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "SMAILING") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF SMAILING 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, SMAILING 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 MAXIMUM AGGREGATE LIABILITY OF SMAILING TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY SMAILING TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

10. Restricted Persons; Export of Products or Technical Data

You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Products is (1) a national of or an entity existing under the laws of any country with which UK or RO persons are prohibited from engaging in transactions, as may be determined from time to time by the UK or RO Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the UK or RO Treasury Department; (3) listed on the Denied Persons List or Entity List by the UK or RO Commerce Department; (4) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify SMailing within twenty-four (24) hours, and SMailing shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to SMailing.

You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the UK or RO Government. You may not remove or export from the RO or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the UK or RO or any other applicable country.

11. Links to Third-Party Web Sites

This web site may contain links to non-SMailing web sites. These links are provided to you as a convenience, and SMailing is not responsible for the content of any linked web site. Any non-SMailing web site accessed from this web site is independent from SMailing, and SMailing has no control over the content of that web site. In addition, a link to any non-SMailing web site does not imply that SMailing endorses or accepts any responsibility for the content or use of such web site.

12. No Implied Endorsements

In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by SMailing of that third party or of any product or service provided by a third party.

13. Notice and Take Down Procedures; Copyright Agent

If you believe any materials accessible on or from this web site infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting SMailing’s copyright agent (identified below) and providing the following information:

Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
Your name, address, telephone number and (if available) e-mail address.
A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner’s behalf.
A signature or the electronic equivalent from the copyright holder or authorized representative.

14. Open Positions on Career Pages

SMailing may list open employment positions on this web site. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on this web site or made available through this web site as an offer for employment. Nor should you construe anything on this web site as a promotion or solicitation for employment not authorized by the laws and regulations of your locale.

15. Username and Password

You are responsible for maintaining the security of your account, passwords, and files. SMailing will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by e-mail or by phone. SMailing has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. SMailing shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password.

16. Miscellaneous

16.1 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.

16.2 SMailing 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 this 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.

16.3 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 SMailing in any respect whatsoever.

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

16.5 The Agreement shall be governed by the laws of the Romania and EU 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 state or federal courts located in Targu Mures, Romania.

Additional Information

If you have any questions about the rights and restrictions above, please contact SMailing by email at support@newgoodmail.com.

Copyright ©2008, ePoint. All Rights Reserved.

August 2008