EmailSphere.net is an ESP (Email Service Provider) that provides access to their email marketing software and platform in order for their customer or users (you) to send email campaigns to your list of subscribers.
It comes with hundreds of powerful features to create mobile responsive email campaigns; you can host images, brochures, conduct surveys, polls or feedbacks, automate your marketing campaigns and send customised newsletters.
By using this service, you agree to be bound by these terms and conditions, between you (as company or individual) hereafter “Customer” and EmailSphere
WHEREAS:
(A) EmailSphere has agreed to provide the Customer with access, via the Internet, to certain software on the terms and conditions set out in this Agreement;
(B) Prior to the provision of such access, EmailSphere may provide certain configuration or account setup in respect of the software;
(C) The provision of the configuration services and access to the software shall be conditional upon the timely payment of the applicable charges by the Customer.
(D) EmailSphere reserves the right to update and modify this Agreement (terms and conditions) at any time without notice. Newly added features will form part of this Agreement and the continued use of this service will affirm your conformation to such changes.
IT IS AGREED as follows:
1.1 In this Agreement the following words and expressions shall have the meanings set out below:
“Agreement” means this Software as a Service Agreement;
“Charges” means the Charges set out on the website, rate card or tariff via email;
“Customer Material” means all material which is provided by the Customer to EmailSphere for use in the performance of the Services;
“Data” means the data of the Customer and the Users, which is processed using the Software Service;
“Services” means Access to Portal, Account Setup, Email Sending Allowance, Configuration Services, Software Service, IP Warming, Deliverability Consulting, Support and such other services as may be provided by EmailSphere to the Customer from time to time;
“Software Service” means the provision, by EmailSphere to the Customer, of a service permitting the Customers to access the Email Marketing Platform;
“Server Hosts” means the third party hosting provider used by EmailSphere to host and run their infrastructure;
“Internal Data” means data generated by the systemlike graphs, statistics, bounce rates, bounce lists, segmented lists, open rates, unsubscribes, campaigns created, or any other data produced in the system as a result of Customer’s use of the system;
“External Data” means data imported/uploaded by the Customer into the system like data lists, contact lists, HTML Campaigns, images, text, brochures or any other type of information or text entered into the system;
“Personal Data” means all information relating to and/or identifying individuals which is processed using the Software Service;
“Email Credits or Credits” means the number of emails that can be sent by the Customer, one thousand credits will mean one thousand emails can be sent;
“Sending limit” means the total number of emails a Customer is allowed to send;
“Force Majeure” means acts of God, war, hostilities, riot, fire, explosion, accident, flood, sabotage, lack of adequate power, raw materials or labour, strike, lock-out or injunction compliance with governmental laws, regulations or orders, sickness or indisposition of key EmailSphere employees, or any other cause whether or not of the class or kind enumerated which affects performance of this Agreement arising from or attributable to acts, events, omissions or accidents beyond the reasonable control of the party affected;
“Use” means use for the Customer’s own internal business purposes and only to the extent necessary to receive the benefit of the Services as expressly contemplated hereunder;
“User” means those Customer’s employees with a User Subscription;
“User Subscription” means the User subscriptions purchased by the Customer for the Charges, which entitles Users (subject to any training requirements) to access the Software Service in accordance with this Agreement.
1.2 The headings are included for convenience only and shall not affect the interpretation or construction of this Agreement.
2.1 EmailSphere provides the Services to the Customer, and the Customer agrees to purchase the Services from EmailSphere in accordance with the terms and conditions set out in this Agreement.
2.2 EmailSphere and the Customer may from time to time mutually agree to additional or alternative Services, which shall be subject to the terms and conditions set out in this Agreement.
2.3 Customer understands that EmailSphere is “WORK IN PROGRESS” and as such at a development stage where changes, modifications are being made to the Software to add new and innovative features in order to enhance functionality and provide high standards of accessibility and availability for different (cross) platforms and that the service may encounter interruption from time to time, data loss, lack of full functionality and other associated risks related to developing an application.
2.4 EmailSphere does not host the platform on servers in-house but uses a reputable UK Server Host to host the entire infrastructure, although reasonable measures are in place to ensure the provision of a stable un-interrupted service that meets industry standards, however this does not warrant EmailSphere will be uninterrupted, error, bug or virus free.
2.5 Customer hereby acknowledges and agrees that EmailSphere is still in a TESTING phase, where although a stable software and infrastructure is in use, Customer’s external and internal data and its work may be at risk of loss or corruption and responsible measures will be taken by the Customer to protect and additionally save its work independent and remotely from the Software and Platform.
2.6 The speed and delivery of emails to recipients cannot be guaranteed and is dependent upon quality of the list, subscription methods used, age of list, usage frequency, list cleansing, ISP policies, recipients use of spam filtering services, nature and type of email campaigns, quality of text, image to text ratio, spam words used, subject lines, ISPs real time policing algorithms and various other factors that are not in control of EmailSphere and as such EmailSphere makes no representations or warranties whatsoever for the deliverability or speed of emails.
2.7 Customer acknowledges that It may be necessary to temporarily suspend EmailSphere from time to time to carry out maintenance of equipment, server changes and modifications, such suspensions will be limited and will take place as much as possible outside core working hours. However, EmailSphere may also be suspended (in whole or part) where EmailSphere or the Server Hosts is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation. Such interruptions may be unscheduled, sudden and without notice or warning, this may compromise Customer data (both internal and external).
2.8 Non Active accounts are subject to Status Change, this is of three types. Account Suspension where Customer will not be able to gain access to their account. Suspension of accounts will take effect 45 days from in-activity (user’s last login). Account De-activation comes into effect 15 days after Account Suspension or 60 days from user’s last login. If the account is De-activated, customer may lose their Internal and External data and the account may be refreshed and brought back to its initial start-up state, this means users will lose all their changes, campaigns, account history, activity logs and contact lists. EmailSphere will still keep Customers registration details for up to 3 months (90 days after user’s last login) after which Customer account will be deleted. EmailSphere will notify the user of various status changes to its account but not mandatorily. It is the sole responsibility of the Customer to keep check on the account from time to time. Customers will lose email credits if their accounts have been Deleted and no refunds will be processed under such circumstances. If Customers have remaining credits on their account, they can ask for more time to keep the accounts active. Requests for time extension can be made by sending an email to [email protected]. Accounts will not be given more than 6 months extension from the date of user’s last login.
2.9 EmailSphere reserves the right to modify, suspend, or discontinue the Service at any time for any reason with or without notice.
3.1 The Customer shall and shall procure that each User shall Use the Software Service only in accordance with the terms of this Agreement. The Customer shall be responsible for all use of the Software Service by Users and shall be liable for breach of this Agreement by a User as if it were a breach by the Customer.
3.2 Customers need to register with the service in order to use it. As part of the registration process, Customer will provide an e-mail address, contact number, full name, business name and password for their account. Customer will be responsible for maintaining the security for all users associated with their account, and of their account passwords, files, and other assets like HTML campaigns, text, images and contact lists for all users of their EmailSphere account. EmailSphere reserves the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, at its sole discretion.
3.3 Subject to payment by the Customer of additional Charges, Customer may purchase additional User Subscriptions or Email Credits in excess of the initial number at the time of setup of the account or at a later date, by notifying EmailSphere in writing (or by e-mail). EmailSphere shall evaluate such request for additional User Subscriptions or Email Credits and respond with approval or rejection of the request; approval not to be unreasonable withheld or delayed.
3.4 If EmailSphere approves the Customer’s request to purchase additional User Subscriptions or Email Credits, the Customer shall, within 7 days of the date of EmailSphere’s invoice, pay to EmailSphere the relevant fees for such additional User Subscriptions or Email Credits, in accordance with EmailSphere’s then current rates.
3.5 EmailSphere shall use reasonable endeavours to ensure that access to the Software Service is available at all times, however the Customer acknowledges and agrees that the Software Service may not be accessible to the Customer from time to time. Wherever possible all scheduled service interruptions shall take place outside of office hours and seven (7) days prior written notice of such scheduled service interruptions shall be given to the Customer. EmailSphere notifies customers by sending emails to their registered accounts, as this method is not always reliable EmailSphere will not be held responsible for any loss of work, loss of profits, loss of data, loss of business, loss of time, business benefit or goodwill.
4.1 Customer acknowledges that it will be solely responsible for all external data (uploaded) on the software (including but not limited to Contact Lists, HTML Campaigns, Images, Text, Templates) other properties and information in conjunction with the Software Service and internal data (system generated) by the software (including but not limited to Sending History, User Logs, Bounces, Statistics, Open Rate, Created Campaigns, Charts, Graphs) and other relevant information that is generated by the system time to time and as a result of the Customer’s use of the system. EmailSphere shall have no liability for any loss or corruption of any such information or data both internal and external.
4.2 The Customer hereby acknowledges and agrees that it is responsible for issuing user names and passwords to the User(s). EmailSphere shall not be liable for (i) any delay or failure by the Customer or User to issue or accept such user names and passwords; or (ii) verifying whether the Data is correct and accurate or whether the usernames and passwords are sufficiently secure.
4.3 The Customer hereby represents, undertakes and warrants that, and shall procure that each User represents, undertakes and warrants that:
(a) the Customer and/or the User owns all rights in the Data necessary to grant EmailSphere the right to carry out its obligations pursuant to this Agreement;
(b) the Data does not and will not contravene or breach any applicable law, regulation code of practice or directive including, without limitation, investment or financial services legislation or consumer or trade regulation or data protection legislation or regulation and that the use of the Data will not contravene any applicable law, regulation or industry standard;
(c) the Data does not and will not infringe any Intellectual Property Rights or other rights of any person, nor are they obscene, defamatory, libellous or slanderous, nor will it cause injury to, invade the privacy of or otherwise violate other rights of any person;
(d) all information supplied by the Customer for the purpose of registering the User(s) is true, complete and accurate in all respects and it shall notify EmailSphere as soon as reasonably practicable of all changes to such information;
(e) it shall keep and, where relevant, shall procure that all its employees and/or agents keep confidential the usernames and passwords;
(f) it shall procure that no unauthorised access to and/or use is made of the Software Service and utilising the username or password allocated to the Customer and/or each User;
(g) it shall be liable for all access to and use of the Software Service whether authorised by the Customer or any User or not; and
(h) it shall inform EmailSphere immediately if it has any reason to believe that the username and password has become known to any individuals not authorised to use them or if the Software Service is or is likely to be used in an unauthorised way.
4.4 Customer shall use its best endeavours to ensure that all information contained in the Customer Material and the Data shall be true, accurate and complete. For the avoidance of doubt, Customer hereby acknowledges and agrees that:
a) Customer shall be responsible for verifying the Customer Material and the Data prior to its provision to EmailSphere; and
b) EmailSphere shall bear no responsibility or liability for checking the Customer Material and the Data prior to or during its use by EmailSphere pursuant to this Agreement.
4.5 In the event that the Customer is in breach of this clause 4, EmailSphere, without prejudice to any other rights it may have in respect of such breach, may suspend the provision of the Services without notice and shall have no liability to the Customer for the consequences, direct or otherwise of such suspension of the Services.
4.6 Customers are obliged to embrace and take care of EmailSphere’s Antispam and Online Privacy Policy and these Terms, which (all) are subject to change by EmailSphere every so often and without notice.
4.7 EmailSphere shall not be liable for any delay or failure to perform its obligations hereunder which arise as a result of a failure by the Customer to comply with this Clause 4. Where such delay or failure by the Customer results in EmailSphere spending additional time and expense to fulfil the Services, EmailSphere shall be entitled to suspend the account until satisfactory conclusion has been reached and may charge a nominal fee of upto £100.
5.1 In consideration for the provision of the Services, the Customer shall pay the Charges.
5.2 Customer shall pay the charges as displayed either on the website, pricing tariff or as agreed between EmailSphere and Customer. The charges may be a monthly subscription, an annual payment or a set amount for a fixed number of Email Credits. The Customer shall pay EmailSphere all amounts due within 7 days of receipt of the invoice (the “Due Date”).
5.3 Customer agrees to pay for ALL the Outgoing emails from their account, irrespective of blocked, bounced, wrong email addresses, returned or undelivered emails.
5.4 All payments made or to be made under this Agreement shall be made in full, without any deduction, withholding, set-off or counterclaim on account of any taxes or otherwise.
5.5 EmailSphere reserves the right to suspend the respective account for any payment not made by the Due Date
5.6 In the event of a bona fide dispute regarding any invoice or other request for payment, the Customer shall immediately notify EmailSphere in writing and the parties shall attempt promptly and in good faith to resolve any dispute regarding amounts owed. The Customer shall pay all undisputed amounts on the Due Date. EmailSphere reserves the right to suspend all Services until the dispute has been resolved
5.7 Charges in respect of the Email Services may be increased by EmailSphere from time to time upon not less than 30 days prior notice to the Customer, such notice to take effect on the next invoice Due Date, or not for any period in respect of which the Customer has made an advance payment.
5.8 Continued use of EmailSphere following the effective date of any change in charges shall be considered acceptance of such change.
5.9 EmailSphere runs a strict no-refund policy and will not consider refunds for any of the reasons below.
1) High Bounce Rate
2) Low or Unsatisfactory Recipient Response Rate
3) Low Email Deliverability Rate or Ratio
4) Slow Delivery of Emails in Recipients’ Accounts
5) Slow Dispatch of Email Campaigns from the platform
6) High Spam Rate
7) Spam Complaints
8) Emails Delivered to Junk or Spam Folders
9) Emails not rendering properly on editor for Desktop, Tablet or Mobile Phones or different Email Softwares
10) Infraction or breach of ANY of the terms of this agreement
11) Discounted or Promotional offers
12) Exceptions made in payments terms
13) Loss of Internal and External Data
14) Service Unavailability for an interim time period
15) Slow support response time
5.10 Exceptions for refunds
a) EmailSphere will refund strictly if we were to completely seize to provide the Software Service (the email marketing platform) in its entirety. Such refunds will be processed in accordance with the unused email credits for that Customer account.
b) In case your first payment has been processed, EmailSphere is only going to refund the entire amount if
a. the refund request is received within one week after sign up and payment made
b. none of user accounts were used to send any campaign(s).
It is possible to ask for a refund by contacting us utilizing the Contact Us form (if available) on the website or by emailing [email protected]. For those who have paid for a number of months ahead of time, your refund will be then calculated by EmailSphere on the basis of the total month cost with no reductions for the months the service was used, this may include the month of your request. Also a £30 administration charge will be added.
5.11 Payments can be made through credit/debit cards, bank transfers, monthly debit or standing order, customers need to agree on the method of payment at the time of registration with EmailSphere. Credit/debit cards will be charged on the same date every subsequent month following the first payment. If customer want to increase or decrease their email credits / sending limit and require an alteration in the monthly payments, this can be done by notifying EmailSphere no less than two weeks before the next payment Due Date. Requests for decreasing the sends will be calculated pro-rata in accordance with the total number of emails credits used in the month the request was made.
5.12 In case of non-receipt of payment by EmailSphere probable causes of which may be a declined credit card, bank rejecting the standing order or other similar reasons, EmailSphere will attempt to contact the Customer via phone and email and Software Services may be suspended until such issue has been resolved.
5.13 Payment for Bank Transfers and Standing Orders should be in British Pounds. We accept a range of currencies through our Online Payment method/
5.14 Card transactions on your bank account will appear as “Cinch” which stands for the parent company of EmailSphere called Cinch Technologies Ltd
6.1 Customers should use Service only for legitimate purposes. Illicit content which is threatening, obscene, harassing, libellous, or in just about any manner a breach of intellectual-property regulations or a third-party's intellectual-property rights are in direct breach of this agreement.
6.2 EmailSphere should not be used to promote nudity, obscene articles, online-gambling, pharmaceutical associated articles, illegal software applications, viruses, pyramid marketing schemes, affiliate marketing or to circulate content that we consider unsuitable. The use of foul language, swearing or cursing words is strictly prohibited and in direct violation with terms of this Agreement. If Customers are unsure about what is classed as unsuitable they can further enquire by emailing [email protected]
6.3 EmailSphere, is not obligated to but in its sole discretion holds the right to need Customers to remove, forbid or stop any articles that are considered to be offensive, or otherwise in breach of this Agreement
6.4 Any violation of any of the Terms will result in the termination of your account with no possibility of a refund.
7.1 Customers are in charge of the appropriate cancellation of their account. Telephone requests to cancel the account are not going to be considered as authentic cancellation - Customers have to send their requests via e-mail to [email protected] or use the 'Contact Us' form (if available) on the website. EmailSphere will terminate the recurring payments and will close off the account arrangement.
7.2 Customer paying through online payment system can cancel anytime through the Payment Section of their Admin Account. This will not erase the account information itself.
7.3 Whilst it is possible to cancel anytime, Customers may stay liable for all costs accrued up to that particular time, including total monthly fees for the month that their service was discontinued. However, Customer will not be billed again after that.
8.1 EmailSphere cannot guarantee and does not warrant or represent that any specific results will be produced by the Software Service or that use of the Software Service will be uninterrupted or error-free. Except as expressly set out herein, to the maximum extent permitted by law, EmailSphere expressly excludes all representations, warranties, obligations and liabilities in connection with the Services including but not limited to the warranties of merchantability, accuracy, completeness, fitness for a particular purpose, and any warranties arising by statute or otherwise in law or from course of dealing, course of performance, or use of trade are hereby excluded and disclaimed.
8.2 Subject to clause 8.5, to the maximum extent permitted by law, EmailSphere shall not be liable for any loss, expenses, costs or damage caused in whole or part by, or resulting from the Customer’s actions taken as a result of the use of or reliance on, the Software Service.
8.3 Subject to clause 8.5, the maximum aggregate liability of EmailSphere (including its respective agents and sub-contractors) under, arising from or in connection with payment made, whether arising in contract, tort (including negligence) or otherwise, shall not exceed in aggregate the Charges paid by the Customer to EmailSphere in the preceding 6 months.
8.4 Subject to clause 8.5, in no event shall EmailSphere be liable for:
(a) any loss of profits, loss of revenue, loss of savings, loss of data, loss of business or business benefit, loss of use of software or data, or the cost of procurement of substitute products or services by Customer, business interruption, loss of management time, loss of use, loss of contracts, loss of opportunity, loss of goodwill; or
(b) any special, indirect, incidental or consequential losses of any nature whatsoever;
whether or not caused by or resulting from its negligence or a breach of its statutory duties or a breach of its obligations hereunder, howsoever caused even if it is advised of the possibility of such loss.
8.5 For the avoidance of doubt, nothing in this Agreement shall be deemed to exclude, restrict or limit liability of either party (or their respective agents or sub-contractors) for death or personal injury resulting from their negligence or any liability for fraud or fraudulent misrepresentation
8.6 For any failure or non-performance of Software Service and Platform; EmailSphere will use commercially viable efforts to rectify the Service and fully restore its Platform and Software functions, this shall be the sole and exclusive remedy offered.
8.7 Both parties accept that the limitations and exclusions set out in this Agreement are reasonable having regard to all the circumstances
8.8 This clause 6 shall survive the termination of this Agreement for whatever cause.
9.1 The Customer shall procure that its Use of the Software Service is compliant with all relevant statutory provisions, including but not limited to e-commerce, data protection, fraud and anti-money laundering regulations.
9.2 For Personal Data processed by Customer using Software Service the Customer undertakes to act in accordance with the applicable data protection legislation.
9.3 The Customer and EmailSphere acknowledge and agree that the Customer is the data controller and that EmailSphere is a data processor in respect of any Personal Data. The Customer therefore confirms that:
(a) it is entitled to transfer the relevant Personal Data to EmailSphere so that EmailSphere may lawfully use, process and transfer the Personal Data in accordance with this Agreement on Customer’s behalf;
(b) it shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing and transfer as required by all applicable data protection legislation;
(c) it is solely responsible for ensuring that any data processing and security obligations under this Agreement comply with applicable data protection law and anti-money laundering regulations. EmailSphere will only process Personal Data for the purposes of providing the Customer with the Services and each party has in place and will maintain for the duration of these terms and conditions appropriate technical and organisational measures against the accidental, unauthorised or unlawful processing, destruction, or disclosure of Personal Data and adequate security programmes and procedures to ensure that unauthorised persons do not have access to any equipment used to process Personal Data.
(d) it is responsible for its backups for both (External and Internal) data and will make appropriate backups from time to time, daily if it is an intense user of the system. EmailSphere has a backup infrastructure and server failovers in place through Server Hosts and other third parties but will have no liability for any loss or damage, however caused, from any loss of data or information.
9.4 The Customer hereby indemnifies EmailSphere in full and on demand against all losses, liabilities, fines, damages, costs, claims and expenses (including but not limited to legal costs) arising from or incurred by EmailSphere as a result of any failure of the Customer to comply with this clause 7.
10.1 If either party is prevented or delayed from or in performing any of its obligations under this Agreement by Force Majeure, then:
(a) its obligations under this Agreement (or, where the Force Majeure only affects some of the Services, such obligations as relate to those Services) shall be suspended for so long as the Force Majeure event continues and to the extent that that party is so prevented, hindered or delayed;
(b) the parties shall, without prejudice to the other provisions of this Clause 10.1 consult with a view to taking such steps as may be appropriate to mitigate the effects of such Force Majeure;
(c) that party shall use all reasonable efforts to mitigate the effects of the Force Majeure upon the performance of its obligations under this Agreement.
10.2 If any Force Majeure prevails for a continuous period in excess of 2 months, either party shall be entitled to terminate this Agreement in its entirety (if all Services are affected by Force Majeure) or in part (insofar as it relates to the Services affected by Force Majeure) by giving not less than 10 working days’ notice in writing to the other party.
11.1 Customer agrees that EmailSphere may in any of its marketing material refer to the Customer as a customer of EmailSphere and refer to the type of services that EmailSphere has provided to the Customer.
11.2 Customer agrees that EmailSphere may publish and circulate a case study describing the Services supplied by EmailSphere to the Customer (for use by EmailSphere as a marketing tool).
12.1 EmailSphere has sole and exclusive ownership (or licence to use) all right, title, and interest in and to the EmailSphere Software and the Portal including all copyright and any other Intellectual Property Rights therein. Nothing in this Agreement will serve to transfer from EmailSphere to the Customer any of the EmailSphere Software or the Portal, and all right, title and interest in and to the EmailSphere Software and the Portal will remain exclusively with EmailSphere and/or EmailSphere’s licensors. All rights in and to the EmailSphere Software and the Portal not expressly granted to the Customer are reserved by EmailSphere and the relevant third party licensors.
12.2 Except for the rights expressly granted in this Agreement, nothing in this Agreement will serve to transfer from the Customer to EmailSphere any of the Customer Material, and all right, title and interest in and to the Customer Material will remain exclusively with the Customer.
12.3 The Customer grants to EmailSphere a non-exclusive, worldwide, non-assignable, royalty-free licence to use the Customer Material for the sole purpose of performing its obligations under this Agreement.
12.4 Nothing in this Agreement shall prevent EmailSphere from using any know-how, methods, techniques or procedures owned or developed by EmailSphere in the course of providing the Services for any purpose.
12.5 All third party Intellectual Property Rights required by the Customer to enable them to Use the Software Service shall be procured by the Customer. EmailSphere shall not be liable for any loss, expenses, costs or damages resulting from the delay or failure of the Customer to procure such third party Intellectual Property Rights.
13.1 This Agreement hereto constitutes the entire agreement and understanding of the parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of this Agreement.
13.2 Each of the parties acknowledges that in entering into this Agreement on the terms set out herein it has not relied on or been induced to enter into this Agreement by any representation, warranty, undertaking, promise or assurance made or given by any other party or any other person, whether or not in writing, at any time prior to the execution of this Agreement other than those expressly set out in this Agreement.
13.3 If any part of any provision of this Agreement shall be invalid or unenforceable, then the remainder of such provision and all other provisions of this Agreement shall remain valid and enforceable.
Email Sphere is an Email Marketing Service provided by Cinch Technologies Ltd
Registered address: Park House, 22 Park Street, Croydon, CRO 1YE
Email: [email protected]