Terms and Conditions

Thanks for using EmailCollect products! These EmailCollect Terms and Conditions (these “Terms”) describe your rights and responsibilities as a customer of our Products. As applicable to the specific Product, if you are being invited or added to, or given lawful access to, a Product set up by an EmailCollect customer, the Acceptable Use Policy governs your access and use of the Product (as part of these Terms). These Terms are between you and EmailCollect that owns or operates the Product that you are using or accessing listed here (“EmailCollect”, “we” or “us”). “You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent. If you don’t have the legal authority to bind your employer or the applicable entity please do not click “I agree” (or similar button or checkbox) that is presented to you. PLEASE NOTE THAT IF YOU SIGN UP FOR AN EMAILCOLLECT PRODUCT USING AN EMAIL ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.

These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access an EmailCollect Product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by clicking “I agree” (or similar button or checkbox) at the time you register for an EmailCollect Product, create an EmailCollect Product account, or place an Order. For No-Charge Products, you also indicate your assent to these Terms by accessing or using the applicable No-Charge Product.

1. What these Terms cover.

1.1. EmailCollect Products. These Terms govern our EmailCollect Products, related Support, and Additional Services. These Terms include Our Policies (including our Privacy Policy), the Product-Specific Terms, and your Orders.

1.2. Product-Specific Terms. Some EmailCollect Products may be subject to additional terms specific to that product as set forth in the Product-Specific Terms. By accessing or using a product covered by the Product-Specific Terms, you also agree to the Product-Specific Terms.

1.3. Products Not Covered. These Terms do not apply to our downloadable products (currently designated as “New-Contacts”, “QR Code”, and “PDF” distributable), use of which is covered in our Acceptable Use Policy.

2. How EmailCollect Products are administered.

2.1. Administrators. Administrators of EmailCollect Products will have important rights and controls over your use of EmailCollect Products. This may include making Orders for EmailCollect Products or enabling Subscriptions (which may incur fees); creating, de-provisioning, monitoring or modifying your account, and setting what permissions are available; and managing access to Your Data. Administrators may also take over management of accounts previously registered using an email address belonging to your domain (which become “managed accounts”, as described in our Documentation). Without limiting Section 2.4 (Responsibility for End Users), which fully applies to Administrators, you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that our responsibilities do not extend to the internal management or administration of the EmailCollect Products for you. You acknowledge that your EmailCollect account can become managed by the entity that owns or controls the email address domain with which your account was created or registered, as described in our Privacy Policy.

2.2. Reseller as Administrator. If you order EmailCollect Products through a Reseller, then you are responsible for determining whether the Reseller may serve as an Administrator and for any related rights or obligations in your applicable agreement with the Reseller. As between you and EmailCollect, you are solely responsible for any access by Reseller to your accounts.

2.3. End User Consent. You will provide all required disclosures to and will obtain and maintain all required consents from End Users to allow: (i) Administrators to have the access described in these Terms and the Privacy Policy; and (ii) EmailCollect’s provision of the EmailCollect Products to Administrators and End Users. You will provide evidence of such consents upon our reasonable request.

2.4. Responsibility for End Users. Our EmailCollect Products have various user flows. Some EmailCollect Products require users to be accountable to handling of Personal Information; some allow users to sign up for subscriptions which can become associated with teams or organizations at a later time; and some may allow users to make other purchases. You are responsible for understanding the settings and controls for each EmailCollect Product you use and for controlling whom you allow to become an End User. If payment is required for End Users to use or access an EmailCollect Product, then we are only required to provide the EmailCollect Products to those End Users for whom are permitted to access and use the EmailCollect Products. You are responsible for compliance with these Terms by all End Users, including for any payment obligations and handling of Personal Information. You are responsible for the activities of all your End Users, including Orders they may place and how End Users use Your Data, even if those End Users are not from your organization or domain. We may display our Acceptable Use Policy to End Users at sign up, account creation, EmailCollect Product purchase, or in-product.

2.5. Credentials. You must require that all End Users keep their user IDs and passwords for the EmailCollect Products strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

2.6. Age Requirement for End Users. The EmailCollect Products are not intended for, and should not be used by, anyone under the age of 18 unless they are emancipated minors. You are responsible for ensuring that all End Users are at least 18 years old and able to take on accountability.

2.7. Domain Name Ownership. Where you are required to specify a domain for the operation of an EmailCollect Product or certain EmailCollect Product features, we may verify that you own or control that domain. If you do not own or control the domain you specify, then we will have no obligation to provide you with the EmailCollect Product or EmailCollect Product features.

3. Inclusions and Restrictions.

3.1. Access to EmailCollect Products. Subject to these Terms and during the applicable Subscription Term, you may access and use the EmailCollect Products for your own business purposes or personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. This includes the right, as part of your authorized use of the EmailCollect Products, to download and/or use the client software associated with the EmailCollect Products. The rights granted to you in this Section 3.1 are non-exclusive, non-sublicensable, and non-transferable.

3.2. Support. During the Subscription Term, we will provide Support for the EmailCollect Products in accordance with the Support Policy (to the extent applicable), and the applicable Order.

3.3. Restrictions. Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the EmailCollect Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the EmailCollect Products to a third party; (c) use the EmailCollect Products for the benefit of any third party; (d) incorporate any EmailCollect Products into a product or service you provide to a third party without express permission; (e) interfere with or otherwise circumvent mechanisms in the EmailCollect Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any EmailCollect Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any EmailCollect Product; (h) use the EmailCollect Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the EmailCollect Products; or (j) encourage or assist any third party to do any of the foregoing.

4. Our security and data privacy policies.

4.1. Security and Certifications. We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure. We also maintain a compliance program that includes independent third-party audits and certifications. Our Security Policy and Practices, as updated from time to time, provides further details on our security measures and certifications.

4.2. Privacy. We collect certain data and information about you and your End Users in connection with you and your End Users’ use of the EmailCollect Products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge.

4.3. Improving EmailCollect Products. We are always striving to improve the EmailCollect Products. In order to do so, we use analytics techniques to better understand how our EmailCollect Products are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.

4.4. Law Enforcement Request. Nothing in these Terms prevents us from disclosing Your Data to the extent required by law but we will use commercially reasonable efforts to notify you where permitted to do so. EmailCollect strives to balance your privacy rights with other legal requirements; to read more about EmailCollect’s policies and guidelines for law enforcement officials requesting access to customer data, please see our Privacy Policy.

4.5. APP and GDPR. Both the Australian Privacy Principles (APPs) and the General Data Protection Regulation (GDPR) emphasize the importance of transparency in data processing practices. Our Privacy Policy and Security Policy and Practices provide further information for the handling of our transparency requirements under both frameworks.

5. Terms that apply to Your Data.

5.1. Using Your Data to provide EmailCollect Products to You. You retain all right, title and interest in and to Your Data in the form submitted to the EmailCollect Products. Subject to these Terms, and solely to the extent necessary to provide the EmailCollect Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in an EmailCollect Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your EmailCollect Products with End User permission in order to respond to your support requests.

5.2. Your Data Compliance Obligations. You and your use of EmailCollect Products (including use by your End Users) must comply at all times with these Terms, our Acceptable Use Policy and all Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases, and permissions to submit all Your Data to the EmailCollect Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 of these Terms (Our Security Policy and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the EmailCollect Products.

5.3. No Prohibited Sensitive Personal Information. You will not submit to the EmailCollect Products (or use the EmailCollect Products to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable EmailCollect Product in the applicable Documentation. Notwithstanding any other provision to the contrary, we have no liability under these Terms for Sensitive Personal Information submitted in violation of the foregoing.

5.4. Your Indemnity. You will defend, indemnify, and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.3 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of EmailCollect Products, (ii) your breach (or alleged breach) of Sections 5.2 (Your Data Compliance Obligations) or 5.3 (No Prohibited Sensitive Personal Information); or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defence or settlement of such claim and (c) all reasonable necessary cooperation by us at your expense.

5.5. Removals and Suspension. We have no obligation to monitor any content uploaded to the EmailCollect Products. Nonetheless, if we deem such action necessary based on your violation of these Terms, including Our Policies, or in response to takedown requests that we receive following our guidelines outlined in our Privacy Policy. We may (1) remove Your Data from the EmailCollect Products or (2) suspend your access to the EmailCollect Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the EmailCollect Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any EmailCollect Products as described in this Section 5.5.

6. Using third-party products with the EmailCollect Products.

6.1. Third-Party Products. You (including your End Users) may choose to use or procure other third party products or services in connection with the EmailCollect Products, including Third Party Apps (see Section 6.2 (Third Party Apps)) or implementation, customization, training or other services. Your receipt or use of any third party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third party provider. If you enable or use third party products or services with the EmailCollect Products, we will allow the third party providers to access or use Your Data as required for the interoperation of their products and services with the EmailCollect Products. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third party providers or other third parties. Any third party provider’s use of Your Data is subject to the applicable agreement between you and such third party provider. We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third party provider or its products or services. You are solely responsible for your decision to permit any third party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.

6.2. Third Party Apps. Third Party Apps are not EmailCollect Products and remain subject to their own applicable Vendor Terms. We may enable interoperation of the EmailCollect Products with Third Party Apps as set forth in Section 6.1 (Third-Party Products). The terms “Apps”, “Third Party Apps”, “Vendor”, and “Vendor Terms” are defined as “Third-Party Apps”.

7. Additional Services.

7.1. Additional Services. Subject to these Terms, you may purchase Additional Services that we will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by us.

8. Billing, renewals, and payment.

8.1. Monthly and Annual Plans. Except for No-Charge Products and One-Off Payment Products, EmailCollect Products are offered either on a monthly subscription basis or an annual subscription basis.

8.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the EmailCollect Products or contacting our support team. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable EmailCollect Product continuing to be offered and will be charged at the then-current rates.

8.3. Adding Users. You may add users, increase storage limits, or otherwise increase your use of EmailCollect Products, as is applicable to each EmailCollect Product, by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.

8.4. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. If a PO number is required in order for an invoice to be paid, then you must provide such PO number to EmailCollect by emailing the PO number to support@emailcollect.com. For Additional Services provided at any non-EmailCollect location, unless otherwise specified in your Order, you will reimburse us for our pre-approved travel, lodging and meal expenses, which we may charge as incurred. Other than as expressly set forth in Section 9 (Our return policy), 17.3 (Warranty Remedy), Section 19 (IP Indemnification), or Section 23 (Changes to these Terms), all amounts paid are non-refundable, non-cancelable, and non-creditable. By agreeing to these terms, you authorize us to charge your credit card or other designated payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and any unpaid fees, as applicable.

8.5. Delivery. We will deliver the login instructions for EmailCollect Products to your email address you provided to us, or through other reasonable means not before we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.

9. Our return policy.

As part of our commitment to customer satisfaction and without limiting the Performance Warranty in Section 17 (Warranties and Disclaimer), you may terminate your initial Order of an EmailCollect Product under these Terms, for no reason or any reason, by providing notice of termination to us no later than thirty (30) days after the Order date for such EmailCollect Product. In the event you terminate your initial Order under this Section 9, at your request (which may be made through your account with us), we will refund you the amount paid under such Order. This termination and refund right applies only to your initial Order of the EmailCollect Product and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that we may change this practice in the future in accordance with Section 23 (Changes to these Terms).

10. Taxes not included.

10.1. Taxes and Duties. Your fees under these Terms exclude any taxes or duties payable in respect of the EmailCollect Products in the jurisdiction where the payment is either made or received. If any such taxes or duties are imposed on us, you are responsible for paying the amount of those taxes or duties in addition to the fees owed under these Terms. However, if you have obtained an exemption from the relevant taxes or duties at the time they are levied or assessed, you can provide us with the exemption information. We will make reasonable efforts to provide you with invoicing documents that facilitate your potential refund or credit application to the relevant revenue authority, if such a refund or credit is available.

10.2. Withholding Taxes. You are responsible for paying all fees net of any applicable withholding taxes. We will collaborate to minimize any withholding tax obligations by leveraging available exemptions or reduced treaty withholding rates. In the event that we qualify for a tax exemption or a reduced treaty withholding rate, we will furnish you with reasonable documentary proof. You are required to provide us with reasonable evidence demonstrating payment to the relevant authority for any withheld or deducted amount.

11. If you purchased through a Reseller.

If you make any purchases through an authorized partner or reseller of EmailCollect (“Reseller”):

(a) Instead of paying us, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use EmailCollect Products if we do not receive the corresponding payment from the Reseller.

(b) Your order details (e.g., the EmailCollect Products you are entitled to use, the number of End Users, the Subscription Term, etc.) will be as stated in the Order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Order as communicated to us.

(c) If you are entitled to a refund under these Terms, then unless we otherwise specify, we will refund any applicable fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.

(d) Resellers are not authorized to modify these Terms or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth in these Terms.

(e) The amount paid or payable by the Reseller to us for your use of the applicable EmailCollect Product under these Terms will be deemed the amount actually paid or payable by you to us under these Terms for purposes of calculating the liability cap in Section 18.2.

12. No contingencies on other products of future functionality.

You acknowledge that the EmailCollect Products and Additional Services specified in an Order are being purchased as separate entities, independent from any of our other products or services. Payment obligations for any products or services are not tied to the purchase or use of any other products (and to clarify, any purchases of EmailCollect Products and Additional Services are separate and not interdependent, even if listed on the same Order). You agree that your purchases are not contingent upon the delivery of any future functionality or features (including the availability of any EmailCollect Products beyond the current Subscription Term) nor reliant on any verbal or written public statements we make about future functionality or features.

13. Evaluations, trials, and betas.

We may offer certain EmailCollect Products to you at no charge, including free accounts, trial use, and Beta Versions as defined below (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted during the Subscription Term we designate (or, if not designated, until terminated in accordance with these Terms). Except as otherwise set forth in this Section 13, the terms and conditions of these Terms governing EmailCollect Products, including Section 3.3 (Restrictions), fully apply to No-Charge Products. We may modify or terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. You understand that any pre-release and beta EmailCollect Products, and any pre-release and beta features within generally available EmailCollect Products, that we make available (collectively, “Beta Versions”) are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available EmailCollect Products. We make no promises that any Beta Versions will ever be made generally available. In some circumstances, we may charge a fee in order to allow you to access Beta Versions, but the Beta Versions will still remain subject to this Section 13. All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes our Confidential Information. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations. NOTWITHSTANDING ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS WILL BE USD$1.

14. IP Rights in the EmailCollect Products and Feedback.

EmailCollect Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the EmailCollect Products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute, and exploit any Feedback in any manner without any obligation, royalty, or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.

15. Confidentiality.

Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the EmailCollect Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 15 and that the Receiving Party remains responsible for compliance by them with the terms of this Section 15. The Receiving Party’s confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.

16. Term and Termination.

16.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.

16.2. Termination for Cause. Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

16.3. Termination for Convenience. You may choose to stop using the EmailCollect Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, unless you are exercising your right to terminate early pursuant to Section 9 (Our return policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

16.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all EmailCollect Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the EmailCollect Products during the applicable Subscription Term. If you terminate these Terms in accordance with Section 16.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 16.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

16.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1 (Third-Party Products), 8.4 (Payment), 10 (Taxes not included), 13 (Evaluations, trials, and betas) (disclaimers and use restrictions only), 14 (IP Rights in the EmailCollect Products and Feedback), 15 (Confidentiality), 16 (Term and Termination), 17.4 (Warranty Disclaimer), 18 (Limitations of Liability), 19 (IP Indemnification) (but solely with respect to claims arising from your use of EmailCollect Products during the Subscription Term), 21 (Dispute Resolution) and 25 (General Provisions).

17 Warranties and Disclaimer.

17.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms. This warranty is in addition to any rights you may have under applicable consumer protection laws.

17.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the EmailCollect Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).

17.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the EmailCollect Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (14) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 17.


18. Limitation of Liability.



18.3. Excluded Claims. Excluded Claims refer to the following: (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 3.3 (Restrictions) or Section 6 (Using third-party products with the EmailCollect Products) of Third Party Code in EmailCollect Products.

18.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 18 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

19. IP Indemnification.

We will defend you against any claim brought against you by a third party alleging that the EmailCollect Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defence and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim. If your use of the EmailCollect Products is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the EmailCollect Product in accordance with these Terms; (ii) substitute a substantially functionally similar EmailCollect Product; or (iii) terminate your right to continue using the EmailCollect Product and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to an EmailCollect Product in the twelve (12) month period immediately preceding the Claim is less than US$50,000; (2) if the EmailCollect Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the EmailCollect Product is used in combination with any non- EmailCollect product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of EmailCollect Products; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components contained with the EmailCollect Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 19 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY EMAILCOLLECT PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.

20. Publicity Rights.

Upon your approval, we may identify you as an EmailCollect customer in our promotional materials. We will promptly stop doing so upon your request sent to support@emailcollect.com.

21. Dispute Resolution.

21.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 21.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 21.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

21.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the Australian Consumer Law (ACL). The ACL is the national law for fair trading and consumer protection, giving us and our customers certain rights and protections. In addition, the ACL protects customers from unfair terms in standard form contracts (these are non-negotiable contracts offered on a ‘take it or leave it’ basis). This will apply to our Terms when dealing with you. For further information about unfair contract terms and the types of protections that may apply, visit the ACCC website. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

21.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 21.1 (Informal Resolution) and 21.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations, or enforcement or recognition of any award or order in any appropriate jurisdiction.

21.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

22. Export Restrictions.

The EmailCollect Products are not subject to any general export restrictions by the Australian government but may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your country. You shall not (and shall not allow any third-party to) export or re-export any part of the EmailCollect Products or any direct product thereof to any entity in the consolidated list of all persons and entities listed under Australian sanctions laws.

23. Changes to these Terms.

We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 25.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.

23.1. No-Charge Products. You must accept the modifications to continue using the No-Charge Products. If you object to the modifications, your exclusive remedy is to cease using the No-Charge Products.

23.2. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 8.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected EmailCollect Products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

23.3. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.

24. Changes to the EmailCollect Products.

You acknowledge that the EmailCollect Products are on-line, subscription-based, or one-off purchase products, and that in order to provide improved customer experience we may make changes to the EmailCollect Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide EmailCollect Products and Additional Services under existing Orders, we can discontinue any EmailCollect Products, any Additional Services, or any portion or feature of any EmailCollect Products for any reason at any time without liability to you.

25. General Provisions.

25.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to EmailCollect, Apartment 3301, 222 Margaret Street, Brisbane, QLD, AUS, 4000, Attn: General Counsel. Your notices to us will be deemed given upon receipt.

25.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

25.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.

25.4. Entire Agreement. These Terms are the entire agreement between you and us relating to the EmailCollect Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the EmailCollect Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

25.5. Conflicts. In event of any conflict between the main body of these Terms and Our Policies, Our Policies (as applicable) will control with respect to their subject matter.

25.6. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power, or privilege hereunder at law or equity. Except as set forth in Section 23 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

25.7. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable, or illegal, the other provisions will continue in full force and effect.

25.8. Independent Contractors. The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.

26. Definitions.

Certain capitalized terms are defined in this Section 26, and others are defined contextually in these Terms.

“Additional Services” means Technical Account Manager (TAM) services, premier or priority support or other services related to the EmailCollect Products we provide to you, as identified in an Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in your subscription.

“Administrators” mean the personnel designated by you who administer the EmailCollect Products to End Users on your behalf.

“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.

“EmailCollect Products” means our hosted products including any client software, we provide as part of the EmailCollect Products.

“Documentation” means our standard published documentation for the EmailCollect Products.

“End User” means an individual you or an Affiliate permits or invites to use the EmailCollect Products. For the avoidance of doubt: (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with an EmailCollect Product as your customer are also considered End Users.

“End User Account” means an account established by you or an End User to enable the End User to use or access an EmailCollect Product.

“Feedback” means comments, questions, ideas, suggestions, or other feedback relating to the EmailCollect Products, Support, or Additional Services.

“IP” means intellectual property. It refers to creations of the mind that have commercial value and are typically protected through various legal mechanisms such as patents, copyrights, trademarks, and trade secrets laws.

“Laws” means all applicable local, state, federal, and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.

“Notification Email Address” means the email address(es) you used to register for an EmailCollect Product account or otherwise sign up for an EmailCollect Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.

“Order” means EmailCollect’s applicable online order page(s), flows, in-product screens, or other EmailCollect -approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the EmailCollect Products, (ii) the number of End Users (if applicable), Subscription Term, domain(s) associated with your use of EmailCollect Products, storage capacity or limits, or other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include Additional Services and No-Charge Products.

“Our Deliverables” means any materials, deliverables, modifications, derivative works, or developments that we provide in connection with any Additional Services.

“Our Policies” means our Acceptable Use PolicyCookie PolicyPrivacy PolicyProhibited Activity PolicySupport PolicySecurity Policy and Practices, and (unless specified) any other policies or terms referenced in these Terms.

“Our Technology” means the EmailCollect Products (including all No-Charge Products), Our Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.

“PCI DSS” means the Payment Card Industry Data Security Standards.

“PO” means a purchase order.

“Product-Specific Terms” means additional terms that apply to certain EmailCollect Products and Additional Services.

“Sensitive Personal Information” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) (commonly known as the General Data Protection Regulation (GDPR)) or any successor legislation; (ii) patient, medical, or other protected health information regulated by the Privacy Act 1988 Australia; (iii) credit, debit, or other payment card data subject to PCI DSS; or (iv) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.

“Subscription Term” means your permitted subscription period for an EmailCollect Product, as set forth in the applicable Order.

“Support” means support for the EmailCollect Products, as further described in the Support Policy (to the extent applicable). Your Support level will be specified in the applicable Order.

“Training” means EmailCollect -provided training services.

“Your Data” means any data, content, code, video, images, or other materials of any type that you (including any of your End Users) submit to EmailCollect Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting, or otherwise making available Your Data to or through the EmailCollect Products.

“Your Materials” means your materials, systems, personnel, or other resources.