TERMS OF USE
THE FOLLOWING TERMS (THIS “AGREEMENT”) DESCRIBE THE CONDITIONS PURSUANT TO WHICH PITNEY BOWES AUSTRALIA PTY LIMITED (ABN: 82 001 475 921). (“WE”, “US” OR “PITNEY BOWES”) OFFERS YOU (“YOU” OR A “USER”) ACCESS TO THE pbSmart™Connections WEBSITE (THIS “WEBSITE”), AND THE SERVICES AVAILABLE ON THIS WEBSITE, ANY RELATED BLOG, OR YOUR pbSmart™Connections ACCOUNT (THE “SERVICES”). BY CLICKING THE “I AGREE” BUTTON BELOW YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN, AS AMENDED FROM TIME TO TIME BY PITNEY BOWES IN ITS SOLE DISCRETION. IF YOU ARE USING THIS WEBSITE, ACCESSING THE SERVICE AND/OR ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATE OR OTHER BUSINESS ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL POWER AND AUTHORITY TO ACT ON BEHALF OF SUCH ENTITY AND TO BIND IT TO THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE THIS WEBSITE OR THE SERVICES.
1. Terms of Use; Acceptance of Contract Terms.
Pitney Bowes makes all information, advice, services, software and other material available on this Website for your use and access subject to the following conditions. This Agreement constitutes a legally binding agreement between you and Pitney Bowes. By accessing, browsing or using this Website or the Services, you acknowledge that you have read, understood and agree to be bound by the terms of this Agreement and the terms of our privacy policy located at www.pb.com/cgi-bin/pb.dll/jsp/GenericEditorial.do?editorial_id=ed_8511&catOID=-18333&lang=en&country=US (Privacy Policy). If you do not agree to the terms of this Agreement and/or to the terms of the Privacy Policy, please do not use this Website or the Services. Users should check the terms of this Agreement and the Privacy Policy periodically. By posting updated versions of this Agreement and/or the Privacy Policy on this Website, or otherwise providing notice to you, Pitney Bowes may modify this Agreement, the Privacy Policy or any Services in its sole discretion. Except as otherwise provided in this Agreement, all such changes shall become effective upon the posting of any such revisions on this Website or upon your receipt of notice from Pitney Bowes, as the case may be. By accessing, browsing or using this Website or these Services after the terms of this Agreement and/or the Privacy Policy are revised, you expressly agree to accept those revisions.
2. User Requirements.
a. You agree to provide us with accurate information in connection with the purchase of any Service(s) obtained via this Website and in connection with the creation of your account .You further agree to maintain and update your User and/or account information as necessary. You are responsible for maintaining the security of your account, passwords, and files.
b. Users must be at least eighteen (18) years of age. By using this Website and/or the Services, you represent and warrant that you are not less than eighteen (18) years of age and that your use of this Website and/or Services does not violate any applicable law or regulation. Pitney Bowes may terminate this Agreement with you without warning if we have reason to believe you are less than eighteen (18) years of age.
c. Pitney Bowes will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password or provides other appropriate account identifying information to Pitney Bowes. Pitney Bowes shall not be responsible or liable for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password or other appropriate account identifying information.
d. You agree to use this Website and the Services only for business or commercial purposes, and not for personal, family, or household purposes.
3. Acceptable Use.
a. With regard to the content of any communications you make through this Website or in connection with the Services, you agree to remain solely responsible, and agree to not submit or otherwise communicate materials that are unlawful, defamatory, abusive, harassing or obscene. You also agree that you will not communicate anything to this Website or in connection with the Services that violates any right of a third party, including copyright, trademark, privacy or other personal or proprietary rights.
b. You agree that you will not use the Services for the sending of unsolicited email, and will comply in all respects to the legal requirements of the Spam Act 2003 (Cth) and all applicable regulations. of the Spam Act 2003 (Cth) and all applicable regulations.
c. Every email message you send in connection with the Services shall contain a prominent “unsubscribe” link that allows the recipient to permanently remove themselves from your mailing list and prevent further communications from you. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to Pitney Bowes. You will not remove, disable or attempt to remove or disable any such links. You shall monitor and process unsubscribe requests received by you directly within ten (10) days of submission, and update the email addresses to which messages are sent through your pbSmart™Connections account. You acknowledge that you will continue to be responsible for maintaining and honoring the list of unsubscribe requests following termination of your pbSmart™Connections account and this Agreement.
d. You agree to provide accurate, current and complete information as part of your account registration for your pbSmart™Connections account.
4. Prohibited Content and Activities.
a. You must not use this Website or the services in any manner that could reasonably be expected to damage, disable, overburden, or impair any Pitney Bowes server, or interfere with any other party’s use and enjoyment of this Website and services. You must not attempt to gain unauthorised access to any services, other accounts, computer systems, or networks connected to any Pitney Bowes server or to any of the services through hacking, password mining or any other means not intentionally made available to you.
b. Pitney Bowes prohibits the use of this Website or the Services by any person or entity that:
· Provides, sells or offers to sell illegal goods or services;
· Provides, sells or offers to sell pornography, sexually explicit material or adult sexual novelty items;
· Posts or discloses any personally identifying information or private information about children without their consent (or their parents' consent in the case of a minor);
· Provides escort or dating services;
· Provides, sells or offers to sell pharmaceutical, homeopathic, or “natural” health products, and/or nutritional, herbal or vitamin supplements;
· Provides online trading, day trading tips, or stock market related content;
· Provides or promotes gambling products or services;
· Provides or promotes multi-level and/or affiliate marketing programs or schemes; or
· Provides or promotes credit repair, get-out-of-debt information or programs, mortgages and/or loans, or real estate prospecting or listing.
c. You hereby agree that you will not use this Website or Services in connection with, or in furtherance of, any of the above-referenced content or activities.
5. Non-U.S. Users and Customers.
a. You represent and warrant that with respect to your customers and potential customers who reside outside the United States, in compiling and maintaining your email distribution list, composing and sending email communications via the Services, maintaining applicable links, and collecting information as a result of individuals visiting your website or otherwise, you have complied, and will comply, with all data protection, privacy and electronic communications laws and regulations applicable to the countries into which you are sending any form of email communication via the Services, including without limitation, with respect to Australia, the Spam Act 2003 (Cth), with respect to Canada, the Fighting Internet and Wireless Spam Act (FISA), with respect to the United Kingdom, the Data Protection Act, and with respect to the European Union, the national laws of the respective member states of the European Union, including the European Union Data Protection Directive 95/96, and the regulations relating to the European Union Privacy and Electronic Communications Directive. In this regard, you represent and warrant that you have collected, stored, maintained, used and transferred all data relating to any individual in accordance with all data protection laws and regulations relating to the country in which such individual resides, obtained all necessary consents, and provided all required information in such communications, to enable Pitney Bowes to receive and process that data and forward such communications to that individual on your behalf in compliance with applicable law.
b. You acknowledge that as between the parties you shall be the "data controller" and Pitney Bowes shall be the "data processor" in respect of personal data which Pitney Bowes processes on your behalf, and that as such, you shall be solely responsible for determining the purposes for which and the manner in which such personal data are, or are to be, processed. Pitney Bowes understands and acknowledges that, to the extent that performance of its obligations hereunder involves or necessitates the processing of personal data relating to individuals, it shall act only on instructions and directions from you.
c. In addition, you further agree that in providing services to your customers and potential customers who reside outside the United States you will: (i) comply with all applicable U.S. export control laws and regulations; (ii) ensure that all products, services and technologies received hereunder shall only be exported, re-exported, transferred or otherwise provided, directly or indirectly, in accordance with these laws and regulations; and (iii) that you will not export, re-export, transfer or otherwise provide, directly or indirectly, any products, services (including the Services) and technologies described in this Agreement to any destination or to any person if this would be prohibited, in whole or in part, by any U.S. law or regulation or would otherwise be prohibited by any U.S. Government entity or agency.
6. List Permission Practices.
In connection with the Services, you will access, import or otherwise use only lists for which all listed parties have consented to receive communications from you. You agree that you will not use any purchased or rented lists or any other third party mailing lists in connection with your use of the Services, including without limitation any distribution lists, newsgroups, or publicly available press or media addresses. Without limiting the foregoing, you agree that you will not use the Services to send any email or other electronic communications to any person who has not provided consent as required under applicable law, or who has opted out or otherwise objected to receiving such communications from you or another sender on whose behalf you may be acting.
7. Fees and Payment.
a. For the Services, in the absence of any special offer, discount or promotion to the contrary, you will pay monthly, multi-month or annual subscription fees, or such other fees agreed upon by Pitney Bowes and you, as evidenced by your selection of options on this Website, and the applicable subscription or other fees shall be determined in accordance with the fee schedule that Pitney Bowes sets forth from time to time in its sole discretion on this Website (the “Fee Schedule”). Fees will be charged according to the highest number of unique email addresses in your account for which the Services are utilized. You will pay for the Services (i) for monthly subscriptions, monthly in advance until your account is terminated, and (ii) for multi-month or annual subscriptions, in full prior to the inception of Services to you, in either case, by providing Pitney Bowes with your valid credit card and authorization to charge such credit card the fees in accordance with the Fee Schedule. For monthly subscriptions, charges will be made to your credit card on the date you first open your account, and for each subsequent month on the same day of the month that you first opened your account. Pitney Bowes may, at any time, and from time to time, in its sole discretion, offer discounts or promotions that affect the fees to be paid under any applicable Fee Schedule, and in order to qualify for such discounts or promotions, Users may have to comply with separate terms and conditions.
b. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected. In the event that the credit card used for payment expires, you will immediately provide Pitney Bowes with the relevant credit card information for any successor credit card or a different valid credit card.
c. If you utilize the Services for any part of your subscription period, payment is due for the full subscription period, and Pitney Bowes will not reimburse you in the event that you cancel or otherwise terminate this Agreement during the subscription period. Any prepayment of your subscription fees will be non-refundable, and Pitney Bowes will not reimburse you in the event that you cancel or otherwise terminate this Agreement.
d. For any month for which you have already paid during which you increase your number of unique email addresses to an amount that causes you to go to another pricing level in the Fee Schedule, you will be required to (i) pay fees in a prorated amount at the higher level rate on or before the date due for payment for the following month, and (ii) pay fees for the next subsequent month at the new higher pricing level. For any month for which you have already paid during which you decrease your number of unique email addresses to an amount that causes you to go to a lower pricing level in the Fee Schedule, Pitney Bowes will have no responsibility to, and will not, refund and/or reimburse you in any manner for such decreased Services in that month; however, Pitney Bowes will appropriately charge you at the applicable lower pricing level on the next subsequent due date.
e. If Pitney Bowes is for any reason unable to effect automatic payment via your credit card, we will attempt to notify you via email and the Services provided to you will be disabled until payment is received. Amounts paid for the Services, including prepayments, are not refundable. Pitney Bowes is required to collect and remit sales tax from its customers located in jurisdictions where software delivered as a service is taxable and where Pitney Bowes is deemed to have a tax nexus.
f. You are responsible for reviewing the Fee Schedule from time to time. The Fee Schedule is subject to change at any time in Pitney Bowes’ sole discretion. Pitney Bowes will use good faith efforts to notify you prior to the effectiveness of any changes to the Fee Schedule.
g. You are responsible for reviewing the Fee Schedule from time to time. The Fee Schedule is subject to change at any time in Pitney Bowes’ sole discretion. Pitney Bowes will use good faith efforts to notify you.
h. This only applies if you are an Australian Customer: All transactions related to this Agreement are to be processed in Australian Dollars (AUD), and payment of the invoice shall be made accordingly.
8. Termination, Disabling Access and Removing Content, and Data Retention.
a. As a condition of your use of this Website and access to our services provided through this Website, you must not use this Website or the services for any purpose that is unlawful or prohibited by these conditions and/or the Legal Notices. You must not use this Website or the services in any manner that could reasonably be expected to damage, disable, overburden, or impair any Pitney Bowes server, or interfere with any other party’s use and enjoyment of this Website and services. You must not attempt to gain unauthorised access to any services, other accounts, computer systems, or networks connected to any Pitney Bowes server or to any of the services through hacking, password mining or any other means not intentionally made available to you.
b. Either party may terminate this Agreement at any time for any reason by providing notice to the other party. In the event that Pitney Bowes terminates this Agreement without cause, we will refund a pro rata portion of your monthly, multi-month or annual subscription fee. Pitney Bowes will have no responsibility to, and will not, refund and/or reimburse you in any manner if it terminates this Agreement due to your violation of one or more terms of this Agreement or if you terminate this Agreement. Once terminated, we may remove any of your electronic communications and related data and files from this Website and any other storage.
c. Pitney Bowes, at its own discretion, may immediately block any email communications, disable your access to the Services or remove all or a portion of your content, without refund, if Pitney Bowes believes in its sole discretion that you have violated any applicable laws, the Acceptable Use provision, the Prohibited Content and Activities provision, the List Permission Practices provision, the Fees and Payment provision, or any other provision of this Agreement.
d. Pitney Bowes may delete any of your archived data within thirty (30) days after the date of termination. If your account is classified by Pitney Bowes, in its sole discretion, as inactive for more than one hundred eighty (180) days, Pitney Bowes will have the right to permanently delete your subscriber data.
e. In the event you terminate this Agreement without cause, Pitney Bowes will refund a pro rata portion of any annual or multi-month subscription fees in relation to the unused portion, except Pitney Bowes will have no responsibility to, and will not, refund and/or reimburse you any fees in respect of the month in which termination occurs, and any unused portion of such month will be deemed automatically forfeited.
9. Hosted Items.
Documents and images hosted by Pitney Bowes on Pitney Bowes controlled servers may only be used in connection with the Services. To the extent you use images provided by Pitney Bowes, Pitney Bowes hereby grants you a limited, non-exclusive, non-transferable right to use the images in an unaltered state solely in connection with your use of the Services. You will not copy a Pitney Bowes template or any other feature or functionality of the Services and use such for any purpose other than sending email messages in connection with the Services.
10. Remote Access and Third Party Providers.
a. You hereby authorize and grant Pitney Bowes the right and ability to remotely access your computers and other systems in connection with the use of the Services. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by Pitney Bowes or its personnel.
b. If you are accessing or using a Service through a third party service or web site (a "Third Party Service"), you agree and acknowledge that Pitney Bowes is not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Service at your own risk. You further agree and acknowledge that Pitney Bowes may terminate such Third Party Service's ability to interact with this Website or these Services at any time, with or without notice, and in Pitney Bowes sole discretion, with no liability to you or to the provider of the Third Party Service.
c. Pitney Bowes does not represent that it holds the authorisations and approvals required to provide advice and services in all jurisdictions where the material on this Website may be viewed or received (including in particular software that may have restrictions on the importation or exportation from certain jurisdictions). You must ensure that your access to and use of this Website is not illegal or prohibited by laws which apply to you or in your location.
11. Acknowledgment.
For every email message sent in connection with the Services, you acknowledge and agree that Pitney Bowes may add an identifying notation stating "Email Marketing by Pitney Bowes," "Powered by Pitney Bowes," “Powered by pbSmart™Connections” or a similar message.
12. Software.
This Agreement is for access to this Website and use of the Services, and you are not granted any right or license in or to any Pitney Bowes software. You are prohibited from using, reproducing, copying, in whole or in part, distributing, decompiling, decrypting, reverse engineering, disassembling, displaying, downloading, storing, transmitting, distributing, selling or otherwise commercially exploiting any part of Pitney Bowes software.
13.
Indemnification.
You agree to indemnify and hold harmless Pitney Bowes, its subsidiaries and affiliates, and their respective officers, employees and agents, from any and all third party claims or demands, including reasonable attorney's fees, arising out of your use of this Website and/or Services, your breach of this Agreement, your violation of any applicable law or regulation, and/or your infringement of any intellectual property right(s).
14. Disclaimer and Limitation of Liability.
a. Except to the extent permitted by law, Pitney Bowes (and its affiliates, officers, directors and employees) are not liable for any loss or damage of any kind suffered by you whatsoever (however caused, including by negligence) including but not limited to:
(i) loss of use, data, or profits, loss or damage to profits, contracts, business, anticipated savings or opportunities; or
(ii) any special, indirect, incidental, consequential or punitive damages;
arising out of or in connection with your access or use of this Website or your use of or reliance on any of the information or software accessible through this Website or a linked website, even if we are advised of the possibility of such damages.
b. To the extent permitted by law, Pitney Bowes makes no warranties or representations (either express or implied) about this Website or any of the content (including its reliability, accuracy and completeness).
c. Where any law implies a warranty into these conditions which cannot be lawfully excluded, then to the maximum extent permitted by law, Pitney Bowes's liability for breach of warranty in relation to the use of this Website or the content will, at Pitney Bowes's option, be limited to: in the case of information or services supplied or offered by us - the re-supply of the information or services or payment of the cost of doing this; or in the case of goods supplied or offered by us - repair or replacement of the goods, supply of equivalent goods, or payment of the cost of doing this.
d. In any event, the maximum liability of Pitney Bowes (and its affiliates, officers, directors and employees) for any claim arising out of or in connection with your access or use of this Website or your use of or reliance on any of the information or software accessible through this Website or a linked website (however caused, including by negligence) will not exceed an amount equal to the fees actually paid by you in respect of the transaction that is the subject of the claim.
e. Nothing in these conditions shall exclude or restrict Pitney Bowes’s liability for: (i) death or personal injury; (ii) fraud; or (iii) any other cause of action which cannot be limited or excluded under applicable law.
15. Trademarks and Copyrights.
The trademarks, service marks, logos and trade dress of Pitney Bowes used on this Website are the intellectual property of Pitney Bowes and/or its affiliates and subsidiaries in the United States and throughout the world (collectively "Marks"). All third party trademarks on this Website are the property of their respective owners and are used under applicable law or with the owners' permission. Except as provided by applicable law, the Marks may not be used and/or reproduced without the written permission of Pitney Bowes. Those uses that are authorized must comply with Pitney Bowes' trademark usage guidelines (provided when necessary upon request). The images, text, organization and layout (collectively "Materials") of this Website are the exclusive property of Pitney Bowes Inc. and are copyrighted and protected by worldwide copyright laws and treaty provisions. Subject to fair use exceptions, Pitney Bowes does not authorize any downloading, distribution or republication of any Materials on this Website, without prior written permission. Any third party copyrighted material appearing on this Website is used under applicable law or with the owner's permission. Pitney Bowes will enforce its intellectual property rights to the fullest extent permitted under the law.
16.
Notices.
Except as explicitly stated otherwise, any notice to Pitney Bowes shall be given by email to support@pbsmartconnections.com.au with a registered mail copy to Pitney Bowes Australia Pty Limited., 95A St Hilliers Road Auburn NSW : Attention Michelle Sheehan or in the case of notice to you, to the email address you provide during the registration process for the Services or the last email address you provided Pitney Bowes. Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid.
17. Miscellaneous.
a. The services featured on this Website are only available in Australia.
b. These conditions are governed by the laws in force in New South Wales, Australia. You hereby irrevocably submit to the non-exclusive jurisdiction of the Courts located in Sydney, Australia and any Courts which may hear appeals from those Courts in respect of any proceedings in connection with these conditions and the Legal Notices or in relation to your access and use of this Site or its contents.
c. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter.
d. Some links on this Website will let you leave this Website. These external sites are not under the control of Pitney Bowes. Pitney Bowes is not responsible for nor does it necessarily endorse or condone the content of linked sites. Our Linking Policy can be found on this Website and should be read in conjunction with these conditions.