YOUZEND – TERMS & CONDITIONS

The present agreement stipulates the relations between YouZend Piazza IV Novembre, 4 – 20124 MILANO, Italy, VAT # IT07923020965 (here named «YouZend») and the CUSTOMER for providing an email marketing solution and its correlated services commercialized through the portal www.youzend.com

Services are provided to the CUSTOMER beginning with the date of contract signing and according to the rates indicated in invoice.

You may contact YouZend via on-line contact forms disposable on the web-site.

YouZend may automatically amend this Agreement at any time by (a) posting a revised Customer Agreement on the You Zend Websites, and/or (b) sending information regarding the amendment to the email address you provide to You Zend.

YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE YOU ZEND WEBSITES TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU.

Otherwise, this Agreement may not be amended except in writing signed by both you and YouZend.

The most current version of the Terms can be reviewed by clicking on the “Terms and Conditions” hypertext link located at the bottom of our Web pages.

You may also have a signed Written Agreement which is expressly incorporated herein, and which in conjunction with the Terms and Conditions and policies referred to herein comprise the entire Agreement between YouZend and you. The Written Agreement may contain different or additional terms which supersede any terms in this document and may refer to earlier versions of these terms.

See the Privacy Statement for disclosures relating to the collection and use of your personal information.

MEMBER ACCOUNT AND DATA MANAGEMENT.

Using YouZend services requires you to open an account, you are responsible of the personal information you provide to YouZend. You agree to notify YouZend promptly of any changes to this information as required to keep it current, complete and accurate. You are also invited to personalize your own password. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur under by all users associated with your account.

You agree to notify YouZend immediately of any unauthorized use of your account or any other breach of security. YouZend will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by YouZend or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.

While your account is active, YouZend will store messages sent and received through your YouZend account, for a period of up one year, in each case measured from the date of receipt of such message. Contact lists are maintained while the account is in good standing. YouZend shall maintain administrative, technical and physical safeguards to protect the security, confidentiality and integrity of Customer information in its possession. Customer acknowledges that YouZend may change its practices and limitations concerning storage of messages, at any time and that notification of any such changes will be posted on YouZend website. Customer further agrees that this feature is provided as a convenience to Customer only and YouZend has no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, any messages and/or other communications maintained or transmitted by the Services.

All sensitive data whose ownership is attributed to the Customer (e.g. email contents and list of destinators), are deleted by YouZend in the 6 months after Customer account termination.

FINANCIAL

You agree to pay all charges for your use of YouZend according to the payment plan applicable to your service, and in effect for your country of residence. YouZend reserves the right to change prices or institute new charges for access to or use of YouZend Services unless you have a signed written agreement with YouZend. All changes will be posted by YouZend at the YouZend websites and you are responsible for regularly reviewing such pricing information to obtain timely notice of such changes. Continued use of YouZend Services or non-termination of your YouZend account after changes are posted constitutes your acceptance of the prices as modified by the posted changes.

Charges are prepaid in the currency in which billed. Your fees are payable in advance and are COMPLETELY NON-REFUNDABLE. YouZend charges you for a specified amount of sending units, these units expire after a period of time of one month or twelve months. Units that are not used over these periods are automatically cancelled. You can only send campaigns whose total contacts is lower than remaining credit on the account.

Customer agrees that YouZend starts to delivery its service only after corresponding charges are paid rather by credit card, by bank transfer or any other payment method.

All charges indicated on the web will be exclusive of value added (“VAT”), sales or other taxes, except as required by law. Other charges are applied in the invoice depending on the Customer resident country and applicable regulations.

USE OF SERVICES / CUSTOMER RESPONSIBILITIES

The Customer declares to have come of age or, where applicable, to have reached majority in the state or province where he/she resides in and to have the lawful rights to stipulate this Contract. The Customer agrees to be financially responsible for the use of the YouZend Services (as well as for the use of his/her own account by third parties, including eventual minors that live with the Customer) and to comply with the responsibilities and the obligations set by the Contract.

You must (a) obtain and pay for all equipment and third-party services (e.g., telephone and computer equipment) required for you to access and use the Services; (b) maintain the security of your password and other confidential information relating to your account and; (c) be responsible for all charges resulting from use of your account, including unauthorized use prior to your notifying YouZend of such use and taking steps to prevent its further occurrence.

Your right to use the services is personal to you and you agree not to resell the use of the Services.

By using this service you commit to respect Anti-Spam regulations applying to operation you perform through YouZend services.

Unsolicited marketing in violation of such laws through the Services is prohibited and a material violation of this Agreement.

As a Customer you agree to abide by the terms of the YouZend Anti-Spam Policy.

NO UNLAWFUL OR PROHIBITED USE

As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any YouZend server, or the network(s) connected to any YouZend server, or interfere with any other party’s use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any YouZend server or to any of the Services, through hacking, password mining or any other means. You will not use or register the name YouZend or any other trade name or trade mark of YouZend without express, prior permission, and you will not obstruct the identification procedures used by YouZend in the services.

You represent that the information submitted for transmission via the YouZend network for YouZend services is for lawful purposes only and that the transmission of messages or files is not in violation of any federal, state or provincial laws including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, state, national or other law. You may not use the Services to upload, post, reproduce or distribute, in any way, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of the copyright holder. You agree to comply with all applicable laws, regulations, or conventions including those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data.

You are fully responsible for the content of your transmissions through the Services and agree and acknowledge that you are the creator of all content, and that YouZend is not the author or publisher of any content and YouZend does not rent or sell lists of any kind. YouZend simply acts as a passive conduit for you to send and receive information of your own choosing.

YouZend prohibits the use of the Services or web sites by any person or entity that, encourages, promotes, provides, sells or offers to sell products or content relating to illegal or fraudulent activities (or services related to the same): including but not limited to illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons, material that exploits children, encourages violence, spam, obscenity, and similar activities. This is not an exhaustive list, and YouZend, in its sole discretion, may determine whether your use is prohibited and its determination shall be final, binding and conclusive for all purposes under this Agreement. YouZend will terminate your use of its Services if YouZend determines such prohibited content or use is in violation of this agreement. Any information stored on the YouZend servers that is deemed to be unlawful or in contravention of this Agreement or legal and regulatory requirements may be deleted at any time by YouZend without notice. YouZend reserves the right to remove any image which contravenes this Agreement without notice to the you.

YouZend does not:

• Represent or endorse the accuracy or reliability or any opinion, advice or statement made through the Service;
• Assume liability for any harassing, offensive or obscene material distributed through the Service by you or others under your account,
• Assume any liability for any material distributed through the Service by you or others under your account which is distributed in violation of any third party’s copyright or other intellectual property right.
• Assume liability for claims concerning unsolicited email sent by you or others under your account

YouZend reserves the right at all times to disclose any information as YouZend deems necessary to satisfy any applicable law, regulation, legal process or governmental request. YouZend reserves the right but is not obligated to review the content of any of your messages for compliance with these terms and other legal requirements upon receipt of a complaint. YouZend further reserves the right to take any other action with respect to the Services that YouZend deems necessary or appropriate in its sole discretion if You Zend believes you or your information may create liability for YouZend or others, compromise or disrupt the Services for you or other Customers, or cause YouZend to lose (in whole or in part) the services of YouZend’ ISPs or other suppliers.

You agree to indemnify and hold YouZend and its agents harmless from any and all direct, indirect or consequential claims, losses, damages, judgments, expenses and costs (including any attorney’s fees and expenses) arising out of your use of the services, your violation of the terms of this agreement, and the delivery of any of your messages and documents using the services, or the infringement of any trademark or copyright by you.

RESPECT OF MARKETING REGULATION

The transmission of unsolicited emailing is regulated, your emailing activity is submitted to the laws of a number of countries, states and provinces.

For instance, but without any exclusion:

– In the United States under the Can-Spam-Act.

– In France under the Article L.34-5 of the Code des postes et des communications électroniques and Article L.121-20-5 of the Code de la consommation.

– In Italy under the following laws: art. 130 of Codice Privacy (“Comunicazioni indesiderate”), art. 9 of Decreto Legislativo 9 aprile 2003, n.70 on electronic commerce, art. 161 and art. 167 of the Codice Privacy, art. 58 of theCodice del consumo, Decreto Legislativo 206 of 2005.

– In Spain under Ley de Servicios de la Sociedad de la Información y de Comercio Electrónico (LSSICE), published in the Boletín Oficial del Estado (BOE) of July 12, 2002 and Ley Orgánica de Protección de Datos (LOPD).

– In UK the government implemented in December 2003 the Article 13 of the European Union Directive on Privacy and Electronic Communications.

Unsolicited marketing in violation of such or other applying laws through the Services is prohibited and a material violation of this Agreement.

As a Customers you agree to abide by the terms of the You Zend Anti-Spam Policy.

OWNERSHIP, DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY

All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the YouZend Service are wholly owned by YouZend and/or its licensors and service providers except where expressly stated otherwise.

THE SERVICES ARE PROVIDED ‘AS IS’ AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE WITH RESPECT TO THE SERVICES OR ANY OTHER PRODUCT, DOCUMENTATION OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. YOU ZEND FURTHER EXPRESSLY DISCLAIMS GUARANTEE OF CONTINUED AVAILABILITY OF THE SERVICE OR ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE TITLE OR NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING BUT NOT LIMITED TO MARKETING LITERATURE OR COLLATERAL OR STATEMENTS REGARDING PERFORMANCE OF THE SERVICES BY YOU ZEND WHICH IS NOT CONTAINED IN THIS SECTION SHALL BE CONSIDERED TO BE A WARRANTY OR REPRESENTATION, AND SHOULD NOT BE RELIED UPON AND IS NOT BINDING UPON YOU ZEND.

The aggregate liability of YouZend, it’s parent, subsidiaries or affiliates, whether for tort (including negligence), breach of contract (including fundamental breach or failure of an essential purpose), misrepresentation or otherwise in respect of a single occurrence or a series of occurrences, shall in no circumstances exceed the amounts paid by Customer to YouZend with respect to the Service giving rise to the claim. IN NO EVENT SHALL YOU ZEND, ITS LICENSORS OR THE PARENT, SUBSIDIARIES OR AFFILIATES OF ANY OF THEM BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SUFFERED BY CUSTOMER OR ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF REVENUES OR PROFITS, LOSS OF DATA OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (INCLUDING WITHOUT LIMITATION, LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERIES, SERVICE INTERRUPTIONS, PERFORMANCE OR FAILURE OF THE INTERNET OR YOU ZEND’ INTERNET SERVICE PROVIDER, OR DELETION OR FAILURE TO SAVE DELIVERIES), EVEN IF YOU ZEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE.

TERMINATION AND GOVERNING LAW

As a subscriber you may cancel the services at any time by sending an email to info@youzend.com.

If you have a signed written Agreement with YouZend the termination provision found in the Written Agreement applies.

YouZend reserves the right to suspend or terminate services if YouZend, in its sole discretion, believes that the service is used for a purpose that is unlawful or prohibited by these terms, conditions, and notices. YouZend shall have no responsibility to notify any third party, including any third party providers of services, merchandise or information, of any suspension, restriction or termination of your account. YouZend shall have no obligation to maintain any messages or other content in your account or forward any unread or unsent message to you or any third party.

Any termination of your account shall not relieve you from any amounts owing or any other liability accruing under this Agreement prior to the time that such termination becomes effective. You agree that these Terms shall be governed by and construed in accordance with the laws of Paris – France, and you hereby consent and attorn to the jurisdiction of such province and agree that all disputes shall be tried in the Tribunal de Paris – France. You expressly waive any right, and agree not to have any dispute under the Terms tried or otherwise determined by a jury, except where required by law.

ANTI-SPAM POLICY / ABUSE

If you received an unsolicited email from a YouZend customer, please forward it to abuse@youzend.com and we will immediately take measures to solve the problem. Among others, we will:
• Review the content of the email.
• Double check that the sender has your permission to mail you.
• Review the complaint and inform you and the sender in question.

Adequate response to spam complaints is very important to ensuring our reputation with world-wide ISPs.

If YouZend determines the services in question are being used in association with spam, YouZend will suspend, or cancel any campaign or other applicable services for a period of no less than two (2) days. The registrant or customer will be required to respond by email to YouZend stating that they will cease to send spam and/or have spam sent on their behalf. YouZend will require a non-refundable reactivation fee of 200€ to be paid before the account, email campaign and/or services are reactivated. We encourage all customers and recipients of email generated from our products and services to report suspected spam. Suspected abuse can be reported by email.