The EmailOctopus service (the "Service") is a marketing service offered through the URL emailoctopus.com (including any subdomains), and other sites through which we provide our Service (together referred to as the "Website") that allow you to create, send and manage bulk email messages to individual recipients. Each such email message in respect of which you use the Service, including the image text and code comprised in it, is referred to in these Terms as "Content". A “Contact” is an email address on the list you maintain as part of the Service.
EmailOctopus is owned and operated by us, Three Hearts Digital Ltd., a London based company. Our registered office is Keltan House, 115 Mare Street, London, E8 4RU and our company number is 09897211. “You” are a user of the Service.
Your attention is drawn in particular to:
Clause 15 which sets out certain requirements in relation to use and misuse of the Service (including a bar on use of the Services to process sensitive personal data), and enabling us to suspend or terminate your use at any time.
Our responsibility for loss or damage if you are a consumer
- In order to use the Service, you must:
- be a business or a consumer able to enter into valid contracts;
- complete the registration process;
- agree to the Terms; and
- provide true, complete, and up to date contact information.
- By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won't use the Service in a way that violates any laws or regulations. EmailOctopus may refuse service and change eligibility requirements at any time.
- Are you a business customer or a consumer? In some areas you will have different rights under these terms depending on whether you are a business or consumer. You are a consumer if:
- You are an individual.
- You are buying a service from us wholly or mainly for your personal use (not for use in connection with your trade, business, craft or profession).
Accepting these Terms
These Terms apply from when you sign up for the Service. Clicking the ‘Sign Up’ button means that you’ve officially "signed” the Terms and a binding contract will come into existence on the basis of the Terms (“Agreement”). If you sign up for the Service on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms on their behalf.
Compliance with these Terms
Your use of the Service is conditional upon your compliance with this Agreement. Without affecting any of our other rights, if you do not comply with any of the terms of this Agreement (including without limitation clause 15), we may terminate or suspend your use of the Service. If we reinstate the Services following a suspension due to your breaching the Terms of this Agreement, we may charge you a reinstatement fee of up to $100.
Closing your account
You or we may terminate this Agreement at any time and for any reason by giving notice in writing (including email) to the other party. We won't refund or reimburse you any Subscription Fees if there's cause, like a violation of these Terms. Once terminated, we may permanently delete your account and all the data associated with it, including your Content from our Website.
Deletion of Contacts
As part of the Service, we offer you the ability to delete Contacts from your account. If you have previously sent Content to a Contact, deletion of that Contact will only be made after a period specified by us (not to exceed 14 days) from the date on which you last sent Content to that Contact.
Delivery of Content
- You acknowledge that due to third party filtering services, problems routing Content across the internet, and other factors, we are unable to guarantee delivery of Content to Contacts using the Service. We will use commercially reasonable efforts to deliver Content to Contacts.
- You acknowledge and understand that the Service includes the transmission of unencrypted email in plain text over the public internet. You are responsible for encrypting any confidential or sensitive data you use in conjunction with the Services. Email sent using the Services may be unsecured, may be intercepted by other users of the public internet, and may be stored and disclosed by third parties (such as a recipient’s email service provider).
- Account and password
You're responsible for keeping your account name and password confidential. You're also responsible for any use of your account, whether or not you authorised the use. You must immediately notify us of any unauthorised use of your accounts. We're not responsible for any losses due to stolen or hacked passwords. We don't have access to your current password, and for security reasons, we may only reset your password.
Subscriptions and payment
- We may make certain Services available to you free of charge, up to certain limits as described on the Website (“Free Services”). Usage of the Services in excess of those limits requires a paid subscription. We may terminate your access to the Free Services at any time without prior notice and will have no liability in respect of such termination. Without limiting the scope of clause 20, the Free Services are provided without any warranty.
As a condition of using the Free Services, you agree to include ‘EmailOctopus’ branding and accreditation on any Content you send using the Services.
- If you register for a monthly subscription, this ‘Subscription’ section applies to you.
- The “Subscription Fees” are the fees payable by you for your subscription, charged to you in accordance with the levels of usage you undertaken of the Service. You agree to pay the Subscription Fees based on the size of your list of Contacts in the Service, and the volume of Content sent to those Contacts, during your monthly subscription period.
- Your subscription begins as soon as your initial payment is processed. Your subscription will auto-renew (that is, it will automatically roll over on expiry to a new period of the same duration) on the same day of each month until either we or you cancel the subscription, in which case it will end at the end of the then-current subscription period. You can cancel your subscription at any time by emailing us at email@example.com or through the Dashboard. Your payment is non-refundable and your subscription will continue until the end of the current billing period. We may cancel your subscription by emailing you at the email address specified in your account, or by means of the Dashboard.
- The Subscription Fees are subject to change at any time, but you will be notified of any change by email to the address listed on your account. We will also post a notice of the change on the Website. The change will take effect at the beginning of the following billing period.
- Subscription Fees are payable in the currency specified when you sign up for the Service and are exclusive of value added tax (or other applicable sales tax), which shall be added at the appropriate rate.
- At any time you may upgrade your subscription to one that provides higher allocations of Content or Contacts in respect of the Service. To upgrade contact our support team at firstname.lastname@example.org. We shall calculate the cost of your upgraded subscription and commence a new subscription in place of your existing one. If you attempt to import Contacts or send Content in excess of your current subscription level, you will be prompted to upgrade accordingly. If you accept, this will result in an upgrade in your subscription level and the applicable Subscription Fees (a “Subscription Upgrade”). Any incremental additional Subscription Fees associated with a Subscription Upgrade will be prorated over the remaining period of the current subscription period and payable immediately. In any future subscription period, your Subscription Fees will reflect any such Subscription Upgrade unless you restore your number of Contracts to be consistent with the subscription level applicable prior to the Subscription Upgrade.
- To downgrade contact our support team at email@example.com, and your usage level shall be decreased to your new subscription level from the beginning of your next monthly subscription period. No refunds or credits for Subscription Fees will be applicable if you downgrade your subscription.
- We do not want you to continue indefinitely paying for a subscription level for an allocation of Contacts which you are not using. If we detect that you are not using your full subscription allocation, we may move you to an alternative cheaper subscription that more closely matches your usage levels, from the end of the current subscription period. We will notify you to confirm that this has occurred.
- If you are a Consumer: your right to cancel
Exercising your right to change your mind if you are a consumer (Consumer Contracts Regulations 2013). If you are a consumer in the European Union then for most products and services bought online you have a legal right to change your mind within 14 days and receive a refund. We offer a 14-day ‘cooling-off period’. At any time during the 14 days from the commencement of your subscription, you may notify us of your wish to cancel your subscription. We will refund you any sums paid in respect of the subscription you cancel in this way, using the payment method you used when signing up for the subscription.
- Credit cards
As long as you're a subscriber or have an outstanding balance with us, you will provide us with valid credit card information and authorise us to deduct the monthly or yearly charges (including in respect of any Subscription Upgrade referred to in 10.6 above), against that credit card. You must replace the information for any credit card that expires with information for a different valid credit card. You represent and warrant that you are authorised to use any credit card you provide details of, and that any and all charges may be billed to that credit card and won't be rejected. If, for some reason, we're unable to process your credit card order, we’ll try to contact you by email and may suspend your account until your payment can be processed.
We’ll give you a refund for the unexpired portion of a prepaid month if we stop providing the Service to you for a reason that's not laid out in these Terms. Except where you cancel the subscription during our 14-day cooling off period referred to in clause 10.6. You won’t be entitled to a refund from us under any other circumstances.
- Either you or we may terminate this Agreement upon written notice to the other party of a material breach, or if the other party becomes the subject of a petition in insolvency proceedings, bankruptcy, receivership, liquidation or assignment for the benefit of its creditors.
Rules and abuse
- General rules regarding use and misuse of the Service.
- You promise to follow these rules:
- You won’t use the Services in any way that may cause us legal liability or disrupt others’ use of the Service;
- You won’t use the Service in a way that may damage to our business or reputation;
- You won't send spam. By "spam", we mean the definition provided by Spamhaus;
- You won't use purchased, rented, or third-party lists of email addresses;
- You won't violate our Acceptable Use Policy, which is part of this Agreement;
- If you violate any of these rules, then we may suspend or terminate your account;
- You will comply with all applicable data protection legislation, including the EU General Data Protection Regulation;
- You will not use the Services to send or receive any information that falls within the definition of “special categories of data” under EU General Data Protection Regulation 2016/679 (“GDPR“);
- You shall:
- provide us with all necessary cooperation in relation to the Service and all necessary access to such information as may be required by us in order to provide you with the Service;
- comply with all applicable laws and regulations with respect to your Content and activities under these Terms;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our obligations under these Terms, including without limitation the Service;
- As part of the Service, we will action on your behalf any “unsubscribe” requests received from recipients of Content you send using the Service.
- Reporting abuse
If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from an EmailOctopus user, we want to hear about it. If you think anyone has posted material that violates any copyrights, then you may notify us.
- Third Party Integrations
- EmailOctopus Connect
- This section additionally applies to you if you subscribe to our EmailOctopus Connect version of the Service (“Connect”).
- As a condition of using Connect, you shall enable us to access your account with the email service provider you specified when registering for Connect (“Your Email Service Provider”). You acknowledge and agree that access to is not provided to you under these Terms, but is instead subject to a separate agreement between you and your Email Service Provider.
- You acknowledge that your Email Service Provider or an Email Delivery Service Provider (see Email Delivery Service Provider Terms set out below) may render ineffective or impair the sending, receipt of viewing of any Content (for example, by breaking links in the Content or removing images from the Content). For the avoidance of doubt, you acknowledge that we shall have no liability to you in respect of any such action.
- If at any time you cease to have a current account in good standing with your Email Service Provider, you will be unable to use Connect. Your obligation to pay the Subscription Fees will remain unaffected.
- It is your responsibility to ensure that your account with your Email Service Provider complies with the minimum requirements specified by us on our website from time to time in respect of Connect. You are solely responsible for maintaining your account with your Email Service Provider and acknowledge that it is necessary for the provision of the Service.
You shall defend, indemnify and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of the Service (or us taking any action in relation to the Service at your direction) in breach of this Agreement (including the Third Party Terms and the Acceptable Use Policy), including any claim or action from a recipient of any Content sent by means of the Service.
- Our responsibility for loss or damage if you are a business
- This section 20 sets out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you:
- arising under or in connection with these Terms;
- in respect of any use made by you of the Service; and
- in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.
- Except as expressly and specifically provided in these Terms:
- you assume sole responsibility for results obtained from your use of the Service, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Service, or any actions taken by us at your direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and
- the Service is provided to you on an "as is" basis. In particular, no warranty or representation is made that the Service will be available uninterrupted or error-free.
- Nothing in these Terms excludes our liability:
- for death or personal injury caused by our negligence; or
- for fraud or fraudulent misrepresentation.
- Subject to section 20.3 above :
- We shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:
- loss of profits,
- loss of business,
- depletion of goodwill and/or similar losses,
- loss or corruption of data or information,
- pure economic loss, or
- special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms; and
- our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these Terms shall be limited to the total Subscription Fees paid by you during the 12 months immediately preceding the date on which the claim arose or £100, whichever is the greater.
- We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.
- We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal consumer rights in relation to the Service.
- We are not liable for business losses. If you are a consumer we only supply our service for to you for domestic and private use. If you use our service for any commercial, business or resale purpose our liability to you will be limited as set out in clause 20.
We won't be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, changes to law or regulations, embargoes, fires, earthquakes, floods, strikes, power blackouts, unusually severe weather conditions, and acts of hackers or third party internet service providers.
Data processing terms
To the extent that you are a business and we process personal data on your behalf in providing the Services, the Data Processing Terms shall apply and are incorporated into these Terms.
Proprietary rights owned by us
Subject to the limited rights expressly granted in these Terms, we reserve all our rights in and to the Services, including all of our related intellectual property rights (including patents, trademarks, trade secrets and copyrights). No rights are granted to you under these Terms other than as expressly set forth in these Terms. You will respect our proprietary rights. “EmailOctopus” and the “EmailOctopus” logo are trademarks belonging to Three Hearts Digital Ltd. You are not authorised by us to use our trademarks or brand assets without prior permission.
Proprietary rights owned by you
You represent and warrant that you either own or have permission to use all of your Content. You retain ownership of your Content. By using the Service you grant us and our agents and subcontractors a licence to use your Content in order for us to provide, and ensure proper operation of the Service. You acknowledge and agree that we will have the right to use your Content in an anonymised way (which does not identify you or the recipient) for the purposes of increasing our spam identification techniques.
Even if we delay in enforcing these terms, we can still enforce them later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking them, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
Any of these terms that expressly or by implication is intended to continue or come into force on or after termination of this Agreement shall continue in full force and effect. Without limitation, clauses 19 Indemnity, 20 Our Responsibility for Loss or Damage Suffered by You if You are a Business, 21 Our Responsibility for Loss or Damage Suffered by You if You are a Consumer, 23 Data Processing Terms, 33 Third Party Rights,34 If You are a Business - Governing Law and Jurisdiction, and 35 Which Laws Apply to this Contract and Where You May Bring Legal Proceedings if You are a Consumer shall continue in full force and effect notwithstanding the termination of this Agreement.
- If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
- These Terms, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- Each of the parties acknowledges and agrees that in entering into these Terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to these Terms or not) relating to the subject matter of these Terms, other than as expressly set out in these Terms.
No partnership or agency
- You shall not, without our prior written consent of us, assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these Terms.
- We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these Terms.
Nothing in these Terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
Third party rights
No person other than Us and you shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of these terms, except that Email Delivery Service Providers (as defined the Email Delivery Service Provider Terms) may enforce any of these Terms (including the Email Delivery Service Provider terms) against you. The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this agreement are not subject to the consent of any other person.
If you are a business: governing law and jurisdiction
Which laws apply to this contract and where you may bring legal proceedings if you are a consumer?
- These Terms and any disputes or claims arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
- The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).
Email Delivery Service Providers
- These Terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
- As a consumer, you will benefit from any mandatory provisions of the law of the country in which you are resident. Nothing in these terms and conditions, including this clause 35, affects your rights as a consumer to rely on such mandatory provisions of local law.
- In addition, if you are a consumer, please note that disputes may be submitted for online resolution to the European Commission Online Dispute Resolution platform.
- EmailOctopus uses a number of email delivery services in order to provide the Service. The Email Delivery Service Providers Terms available additionally apply to your subscription and your use of the Service.
Thank you for taking the time to read these Terms.