Terms and Conditions

Smartlead SaaS Terms of Use

These terms of use, as supplemented by the Subscription Plan, apply to your use of the Service, as developed, owned and operated by 521 Products Pty Ltd (Smartlead). By using the Service or purchasing a Subscription Plan to use the Service, you agree to be bound by these terms.

Please read the entire terms and the Subscription Plan very carefully. Some of the key items are summarised below, but this should not be used as a substitute for reading the document in its entirety:

Words that are capitalised have defined meanings, as set out in clause 20.
Your Subscription Plan renews automatically at the end of each Subscription Period. For more information on this, see clause 2.2.
From time to time, we may make changes to these terms. For more information on this, see clause 1.3.
Your Subscription Plan can be terminated in accordance with clause 9.
Terms relating to your data and how we may use it are set out in clauses 9 and 14.
Clauses 16 and 17 contain important limitations on our liability, disclaimers, exclusions, releases and indemnities. In practical terms, these clauses set out what we do not accept liability for, and what you will need to compensate us for. You should pay special attention to those.

1. Acceptance of Terms

The Service is provided, operated, and owned by Smartlead and its related entities or body corporates providing the Service (we, us, and our).
By using the Service and choosing your Subscription Plan, you agree to these terms of use as supplemented by the Subscription Plan (this Agreement). This Agreement constitutes a binding legal agreement between you and us, and your continued use of the Service constitutes your acceptance and acknowledgment of this Agreement, our Privacy Policy, Fair Use Policy, Data Processing Addendum, and any other policy displayed on our Service, all of which constitute a part of this Agreement. If you do not agree to all of the terms of this Agreement, you must not use the Service.
We may initiate amendments or modifications to this Agreement from time to time by providing you with 14 days’ notice. You will have an opportunity to reject the amendments during this timeframe. If you do not agree to the amendments, then you must notify us within that time frame, otherwise you will be deemed accept the amended version of the Agreement.
This Agreement will prevail over any other terms or agreement between you and us.
In this Agreement, capitalised words and phrases have the meaning given to them when first used and followed by bolded brackets, or as set out in clause 20 (Definitions) at the end of the Agreement.

2. Subscription Period and Auto-Renewal

This Subscription starts on the Effective Date, will continue for the Subscription Period chosen by you.
At the end of each Subscription Period, this Subscription will automatically renew for another Subscription Period unless you notify us in accordance with clause 9.1. Please ensure you contact us if you want to cancel your Subscription. We will endeavour to warn you before an automatic renewal.

3. Licence

In exchange for you complying with all terms of this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable, personal, and revocable licence to access and use the Service for the Permitted Purpose during the Subscription Period. Neither Mailbox Services or Dialling Services may be assigned or transferred to any third party, and this includes a prohibition on the assignment or transfer of any mailboxes or phone numbers allocated to you.
All use of the Service is strictly subject to our Fair Use Policy. This Agreement incorporates the Fair Use Policy, and by signing this Agreement you are taken to have accepted the Fair Use Policy. A breach of the Fair Use Policy constitutes a breach of this Agreement. We reserve the right to monitor your usage of the Service and take action if we determine that your usage is in breach of the Fair Use Policy.
We may put reasonable restrictions on volume limits on your use of the Mailbox Services (eg emails sent per hour, email size, bounce rates etc) and Dialling Services. This may be set out on the Service itself or in the Fair Use Policy. We will consider, acting reasonably, increases to the limits if You request, but we retain the ultimate discretion to reject Your request for any or no reason.
You must not:
1. use the Service for any purpose other than the Permitted Purpose;
2. use the Service in any way which is in breach of any applicable laws or which infringes any person’s rights, including Intellectual Property Rights;
3. use the Service to conduct fraudulent activity, including but not limited to use of spyware, conducting phishing attacks or relaying emails;
4. without limiting subclause 3.3(b), you agree to comply with all Spam Laws. You acknowledge that any use of the Service for the purpose of sending unsolicited commercial electronic messages or making unsolicited phonecalls, as defined by the Spam Laws is strictly prohibited;
5. use bots or other automated tools to operate the Service other than automated tools provided by Smartlead in the Service; or
6. do anything which may compromise or interfere with the supply of the Service or our systems, including without limitation introducing malicious programs such as viruses, worms, trojan horses, and email bombs.
Please see Schedules 1 and 2 for additional terms specific to Third Party Mailbox Services and Dialling Services.

4. Your Warranties

You warrant and agree that:
1. there are no legal restrictions preventing you from agreeing to this Agreement;
2. you are not Insolvent;
3. you will always act in courteous and polite manner whenever dealing with us, and never in an antisocial, discriminatory, abusive, hostile or obscene way;
4. you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access, and documentation that is reasonably necessary to enable us to perform the Service and as otherwise requested by us, from time to time, and in a timely manner;
5. you are responsible (at your cost) for obtaining and maintaining any consents, licences, authorities, and permissions required for you to make use of the Services (and you will provide evidence of this to us upon request);
6. all information and documentation (including User Data) that you provide to us or upload into the Service in connection with this Agreement is true, correct, and complete, and that we will rely on such information and documentation in order to provide the Service;
7. you are solely responsible for establishing and maintaining any Operating Environment necessary to use and obtain the benefit of the Service.

5. Our Warranties

We warrant and agree that:
1. the Service will perform materially in accordance with the Specifications;
2. the Service will not infringe on the Intellectual Property Rights of any person;
3. we will maintain sufficient and appropriately qualified and experienced personnel to operate and provide the Service in accordance with the Agreement.

6. Support Services

Subject to the below conditions being met, we will provide you the Support Services during the Subscription Period:
1. you are not in breach of any term of the Agreement and you are using the Service as intended under this Agreement;
2. your Operating Environment meets the minimum requirements set out in the Specifications; and
3. you have provided all information requested by us in relation to Support Services.
Our liability for any failure to provide the Support Services is limited to resupplying the Service support to the extent required to remedy the failure. This is your sole remedy for any failure to provide the Support Services.
For clarity, any Intellectual Property Rights arising in connection with the Support Services (including any enhancements or customisations) vest exclusively in us immediately upon creation.

7. Fees

You must pay the Fees to us without counterclaim or deduction in accordance with the Fees and payment terms set out in Annex 1 to the Subscription Plan.
Unless your Subscription Plan provides otherwise, all Fees are invoiced annually in advance. The Mailbox Services (part of the SmartSenders Service) are billed monthly according to the number of your active Mailboxes in that month or for part of that month. You can delete Your active Mailboxes in the Service and Smartlead will only bill for Mailboxes which were active that month.
Unless expressly stated otherwise, all amounts stated in or in relation to this Agreement are expressed exclusive of any applicable Tax, which will be added to those amounts and payable by you to us.
We may offer one or more payment processors as a way to facilitate payment of the Fees. You must make payment by way of one of the payment processors offered (which we may modify from time to time at our sole discretion). You agree that:
1. any cost, fee, or other charges charged by such processor must be paid by you in addition to the Fees;
2. you must comply with the terms and conditions of the relevant processor.
We are entitled to modify our Fees at any time by prior written notice to you provided that:
1. an increase is effective only 30 days after such notice is given; and
2. a Fee is not increased more than once in a 12-month period; and
3. the Fees are not increased during the initial Subscription Period of this Agreement.
To the extent permitted by law, any Fees paid to us are non-refundable, and we do not provide refunds or credits should you cancel the Service during its current Subscription Period.
If you dispute a portion of any invoice, you must still pay all undisputed portions of the invoice.
In addition to any other right we have, if you fail to fully pay any amount owed to us for a period of 14 days or more, we may do any of the following at our sole discretion:
1. suspend access to the Service until all amounts are fully paid (and without providing any refund or extension of the Subscription Period afterwards); and
2. charge you interest at the rate equivalent to 1% per month on any amounts owing to us.

8. Updates

We may implement (at our absolute discretion) Updates to the Service from time to time. We will endeavour to provide you with reasonable prior written notice of any scheduled Update that is likely to affect the availability of the Service or is likely to have a material negative impact on you.

9. Termination

Either party may terminate the Subscription at any time, with such termination only taking effect at the end of the current Subscription Period.
Either party may terminate this Subscription with immediate effect by giving written notice to the other party at any time if:
1. in our case, if we deem there has been a breach of any applicable law (including, without limitation, Spam Laws);
2. the other party is Insolvent; or
3. the other party breaches any provision of this Agreement which cannot be remedied, or where the breach is capable of being remedied, fails to remedy the breach within 14 days after receiving written notice from the cancelling party requiring it to do so.

10. Effect of Termination

On termination of this Subscription for any reason:
1. you must immediately stop using the Service, and we may take any action necessary to disable or terminate your access to the Service;
2. each party must promptly return (where possible) or delete or destroy (where not possible to return), the other party’s Confidential Information and intellectual property, and/or documents containing or relating to the other party’s Confidential Information unless required by law or regulatory requirements to retain such information;
Intellectual Property
1. We own all Intellectual Property Rights in the Service, the Support Services, any associated documentation, and all improvements, modifications, customisations and derivative works, whether made by us or by you, and nothing in this Agreement transfers any of those Intellectual Property Rights to you in any way.
2. If you provide us with comments or suggestions relating to the Service, then all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modification, or derivative works), is assigned to us, and we may use the feedback for any purpose.
3. You must not, without our prior written consent:
1. copy or use, in whole or in part, any of our Intellectual Property Rights;
2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate any of our Intellectual Property Rights to any third party;
3. reverse assemble, reverse engineer, reverse compile or enhance the Service;
4. breach any Intellectual Property Rights connected with us or the Service, including altering or modifying any of our Intellectual Property Rights;
5. cause any of our Intellectual Property Rights to be framed or embedded in another digital asset,
6. create derivative works or reproductions of any of our Intellectual Property Rights or the Service;
7. resell, assign, transfer, distribute or make available the Service to third parties;
8. “frame”, “mirror” or serve any of the Service on any web server or other computer server over the Internet or any other network;
9. alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers, or any other means of identification used on or in relation to the Service;
User Data
1. Except as otherwise stated in this Agreement, as between you and us, you own all Intellectual Property Rights and all User Data.
2. Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Service in an aggregated and anonymised format (Analytics). We and our licensors own all Intellectual Property Rights in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics. You agree that we may make such Analytics publicly available, provided that it:
  1. does not contain identifying information; and
  2. is not compiled using a sample size small enough to make the underlying User Data identifiable.
3. You grant us an irrevocable, perpetual licence (and consent) to use, process, copy, transmit, store and backup or otherwise access the User Data during the Agreement Subscription Period solely to:
  1. supply the Service to you (including to enable you and your personnel to access and use the Service);
  2. diagnose problems with the Service;
  3. Update or otherwise modify or maintain the Service;
  4. train our staff; and
  5. develop other services.
4. In relation to any User Data which you provide to us or upload into the Service, you represent and warrant that:
  1. you are solely responsible for the User Data and the consequences of using, disclosing, storing or transmitting it;
  2. you have obtained all necessary rights, releases and permissions to provide all your User Data to us so that we can provide the Services to you, and to grant the rights granted to us in this Agreement;
  3. the User Data (and its transfer to and use by us) as authorised by you, under this Agreement does not violate any laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
  4. any use, collection and disclosure authorised in this Agreement are not inconsistent with the terms of any applicable privacy policies.
Data Storage and Security
1. We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
2. We will use our best efforts to create scheduled backups of User Data stored on the Service at regular intervals. If User Data is lost due to a system failure, we will attempt to restore the User Data from the latest available backup. However, we cannot guarantee that any backup will be free from errors or defects.
Privacy
1. You are responsible for the collection, use, storage, and otherwise dealing with Personal Information related to your business.
2. You must comply and must ensure that all of your personnel comply, with the requirements of the Privacy Laws in respect of all Personal Information collected, used, stored, or otherwise dealt with under or in connection with this Agreement.
3. You must:
  1. notify natural persons from whom Personal Information is collected about any matter prescribed by the Privacy Laws in relation to the collection, use, and storage of their Personal Information;
  2. notify us immediately upon becoming aware of any breach of the Privacy Laws that may be related to the use of Personal Information under this Agreement.
4. This Agreement incorporates the Data Processing Addendum, and by accepting this Agreement and using the Service, you are taken to have accepted the Data Processing Addendum, even if you have not signed the Data Processing Addendum.
Confidentiality and Public Statements
1. Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:
  1. where permitted by this Agreement;
  2. with the prior written consent of the Discloser;
  3. where the Confidential Information is received from a third party, except where there has been a breach of confidence;
  4. on a confidential, “needs to know” basis to the Recipient’s personnel, auditors, insurers, agents, and professional advisors; or
  5. where the Recipient is compelled to do so by applicable law, provided that it gives the other party written notice prior to disclosure.
2. The Recipient must only use the Confidential Information of the Discloser for the disclosed purpose and in connection with this Agreement.
3. You must not, and you must ensure none of your staff, directors or authorised representatives, make any public statement that is either (a) disparaging about us or our Services or (b) is not objectively demonstrable with written evidence. This restriction includes but is not limited to online reviews, post on discussion forums, social media posts or statements to any other entity.
4. In the event that you breach clause 15.3 above we reserve all our legal rights, including but not limited to obtaining injunctive relief. You will reimburse all of our legal costs on demand.
Limitation of liability
1. To the maximum extent permitted by law, we exclude all liability and all Warranties of any kind, (including without limitation any Warranties relating to the Service, the adequacy or timeliness of the Service, or the results that may be obtained using the Service), other than those set out in this Agreement or those that cannot be excluded due to applicable law.
2. Subject to clause 16.9, to the extent that any applicable law restricts our right to exclude Warranties, this Agreement must be read subject to those provisions and nothing in this Agreement is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, then, to the extent that we are entitled to do so, we limit our liability under such provisions to (at our discretion) the resupply of the Services or the payment of the cost of resupply.
3. You acknowledge that complex software is never wholly free from defects, errors and bugs, and subject to the other provisions of this Agreement, we give no Warranty or representation that the Service will be wholly free from defects, errors and bugs.
4. The Service is provided to you on an “as is” and on an “as available” basis without any Warranties arising out of any course of dealing or usage of trade. We disclaim all Warranties that the Service will be error-free, available continuously, uninterruptedly, or be free of harmful components, or that this Service and any User Data will be secure or not otherwise lost or altered. You acknowledge that we may suspend access to the Service temporarily if we have reason to do so (including but not limited to maintenance, updates, or upgrades).
5. You acknowledge that the Service is dependent on other Third Party Services and agree that to the extent permitted by law, we will not be responsible or in any way liable for any defect or interruptions to the availability of the Service resulting from Third Party Services. Please see Schedule 1 for additional terms specific to the supply of Third Party Mailbox Services to you.
6. To the maximum extent permitted by law, our liability and the liability of our employees or agents for a breach of any Warranty or liability which by law cannot be excluded, restricted or modified, or under any express Warranty, is limited, at our option, to:
  1. the supplying of the goods or services again; or
  2. the payment of the cost of having the goods or services supplied again.