(Applies to All Members of Hiya Group)
- Who We Are: "Hiya Mail" is a trade name and registered service mark of Cognitive Solutions, an Irish limited liability company, that owns and operates the website with the URL: http://www.hiyamail.com (the "Website").
- Eligibility: We require that any Member be at least eighteen (18) years of age. By using the Services, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Services does not violate any applicable law or regulation. Your uploads may be deleted and your subscription may be terminated without warning, if we have reason to believe you are under eighteen (18) years of age.
- Charges and Payments:
- Monthly Plans
|5.1 ||Our charges for monthly plans may change from time-to-time. Payments are due for the full month for which any part of the month is included in the "Term." Payments are due for any month on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first monthly payment (the "Pay Date"). For any month for which you have already paid, for which you increase either your number of email addresses or the number of Emails you send out to an amount that causes you to go to another pricing level, except as otherwise provided in this Agreement, you will be required to pay at the higher level on or before the Pay Date for the following month. If the Term ends before such payment is due, you will still be required to make one payment at the higher level.|
|5.2 ||As long as you are a Member or have an outstanding balance with us, you agree to at all times provide us with valid credit card information and authorize us to deduct the monthly charges against such credit card and to replace the information for any credit card that expires with information on a different valid credit card. 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.|
|5.3 ||Whenever you increase the number of email addresses you are using or the number of Emails that you are going to be sending so that you are at a more expensive level, we may, at our sole discretion, require you to pay the difference in the monthly payment before the next Email is sent out.|
We are required to provide a refund only if we terminate our Services to you without cause before the end of a month for which you have paid. There is no other circumstance in which you will be entitled to a refund from us. We may, at our sole discretion, offer refunds in other situations subject to any Member seeking such refund applying for the refund in accordance with the requirements we post on the website, which may be changed from time to time.|
- Term, Termination and Removal: Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. We may suspend our Services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment or reimburse you for unused Email Credits if we terminate you without cause. We will not refund and/or reimburse you in such manner, if there is cause, such as your using our system to send bulk Emails to people with whom your relationship does not meet the requirements of 11(b) below. Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our Website and any other storage. Additionally, if you do not log in to your account for 12 or more months, we may deem your account "inactive" and permanently delete your account and all data associated with it.
- Account and Password: You are responsible for maintaining the confidentiality of any account names and passwords provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
- Proprietary Rights Owned by Us: You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.
- Proprietary Rights Owned by You: You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
- General Rules: You agree to the following:
- You will not incorporate into your Email any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email or you are not otherwise permitted to use.
- You will not post on the Website, including in any Emails created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.
- You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
- You will not share your password.
- You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
- You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party's rights, including, but not limited to, copyrights and privacy and publicity rights.
- Anti-Spam and Abuse Related Rules: You agree to the following:
- Definition of SPAM: We have adopted the definition of Spam set forth on the Spamhaus website at http://www.spamhaus.org/definition.html. The first line of the Spamhaus definition reads:
The word "Spam" as applied to Email means Unsolicited Bulk Email ("UBE").
- Permission Lists Only: You may use Hiya Mail only to send Emails to individuals and entities that either:
Possibility 1 - Consent Obtained
- gave or give you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission and either:
- Consent Given Recently gave you the permission within the prior 12 months; or
- Consent Given More Than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months; or
Possibility 2 - Sold or Negotiated to Sell Product or Service
- gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:
- Recent Sale or Negotiation such sale or negotiations occurred within the previous 12 months; or
- Sale or Negotiation Occurred More than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months.
- We do our utmost to keep our systems clean and to maintain the reputation of our infrastructure identities. By using the Hiya Mail service you agree to cooperate.
- If you are sending your first campaign to an old list it is likely that many recipients will not remember you. As a result they will report you for spamming. As a courtesy please remind them of who you are, and how they got on your list.
- Clean your customer list before you import. Remove any addresses older than 6 months. Bad addresses lead to bouncebacks. Too many bouncebacks, and ISPs block Hiya Mail's severs (and you). Your Hiya Mail account will be shut down if you import an old list that gets too many bounces.
- Don't directly import your entire Outlook Address Book. Export them into a spreadsheet, then take some time to clean out bad addresses. If you import even one address by mistake, that person can get you blacklisted and shut down.
- If you are sending on behalf of a client please educate your client about responsible email marketing. They're depending on you to be the expert.
- CRM, Salesforce, and API Imported Lists
Before importing any list into Hiya Mail from your CRM or any other database you maintain, understand our permission-lists-only rules. Remove any prospects or leads who did not explicitly request email marketing from you or otherwise meet the requirements of 11(b) above. Even if you're sending email marketing to customers who have consented to receive your Email, you are still required, under applicable law, to allow them to opt-out of your email marketing list.
- Prohibited Content and Industries
Don't use Hiya Mail to send anything offensive, to promote anything illegal, or to harass anyone. This includes, but is not limited to:
- Pornography or other sexually explicit Emails
- Emails offering to sell illegal substances
- Emails that violate the CAN-SPAM Law
Some industries send certain types of content that result in higher than normal bounce rates and abuse complaints, which in turn jeopardize the reputation and the associated deliverability of the Hiya Mail system.
We purposely vet and cherry-pick all our clients, respectfully refusing to provide account access to others. It is not because those businesses are necessarily spam offenders. Rather it is because there is a high-probability that they could be perceived to be. As a result we must deny such organizations use of the Hiya Mail system to ensure the highest delivery rates possible for all our customers. In order to prevent any damage we do not allow businesses that offer the following types of services, products, or content:
- Illegal goods or services
- Escort and dating services
- Get-rich-quick or work-at-home schemes
- Penny stock information and tips
- Gambling services, products or gambling education
- Multi-level marketing
- Affiliate marketing
- Credit repair, get-out-of-debt content
- Pornography or nudity in content
- Adult novelty items or references in content
- Requirements for using Hiya Mail
You must meet the following eligibility requirements to use the Hiya Mail service:
- You must be at least 18 years of age, and be able to form legally binding contracts under applicable law.
- You must complete the registration process and agree to the terms of this Agreement. All contact information you submit must be true, complete, and up to date.
- Hiya Group reserves the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, in its sole discretion.
- Data Archival
Hiya Group reserves the right to archive excess data to make room for new data, so that we can manage server costs is a more efficient way and pass these cost benefits on to our clients.
- Bandwidth Abuse: Image hosting, API, Tracking
You may not use our bandwidth for anything other than your Hiya Mail email marketing. In this regard, you agree to the following:
- Unlike some other email marketing services, we provide image hosting for your email campaigns totally free. This doesn't mean you can host images on our servers for other uses, like your website. If we detect that you're using our hosting services for anything other than your email campaigns, we have the right to delete the image.
- Not to build a campaign in Hiya Mail, then send it using some other delivery tool. If we detect such unfair usage we reserve the right to, shut your account down, deleting all images in your campaign.
- If you integrate with Hiya Mail using our API, you must use what we deem efficient programming. There shall not be too many requests to be made in too short a period. We reserve the right to throttle your API connections, or suspend or terminate your Hiya Mail account.
- Fees, Refunds, Account Suspensions, Etc.
- Hiya Mail reserves the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.
- If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
- If, for some reason, we are unable to process your credit card order, we will attempt to contact you by email and we will suspend usage of your account until your payment can be processed.
- You agree to pay for all emails you send from your account, even if messages are blocked by any third party (we have no control over your recipients' email servers, ISP availability, personal spam filter settings, etc)
- Avoiding Spam Related Problems
As an email marketing service provider, we feel it's our duty to be extra vigilant about preventing spam related abuses.
As part of our reputation and deliverability management we engage in the following activities:
Right to Review Email Campaigns
Feedback Loops with ISPs
We're on feedback loops (FBL) and reporting systems with ISPs and anti-spam organizations. When a recipient clicks their "This is Spam" button in their email program, a FBL report is sent to us. We analyze the data, trace it back to the sender that caused the complaint, remove the recipient who was the source of the complaint from the sender's list, and track future complaints about that campaign. If complaints exceed a reasonable threshold based on list size, we take appropriate action (which sometimes means permanently shutting down a Hiya Mail account) to keep our servers clean and off blacklists. Such occurrences are rare as unlike the majority of ESPs our focus is on serving trusted businesses of a certain size and we manually qualify all new accounts.
All abuse reports taken very seriously at Hiya Mail. Reputation is as important to us as the technology behind our system. If you've received spam that you think came from a Hiya Mail user, let us know. Please report the fact that you received spam from what appears to be a Hiya Mail user to us by using this reporting page: http://www.hiyamail.com/report-abuse.php
Report User Abuse
Every campaign sent from Hiya Mail has an embedded Campaign Tracking ID (CID) in the email's header that makes it easy for recipients to report suspected spam. You can view this by choice the Long Header or Extended Header options in your email client. Find out how to submit a CID to our abuse desk.
If the campaign you received does not contain a CID, it didn't come from Hiya Mail. Every email sent via the Hiya Mail platform is embedded with a CID and it is impossible to circumvent this process.
- No Warranties:
To the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.
- Limitation of Liability:
To the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and the services including any downloads from the website. Under no circumstances shall we or any of our employees or representatives be liable for any indirect, punitive, special or consequential damages even if we or any of our employees or representatives have been advised of the possibility of such damages. Our total liability in any event is limited to the amount, if any, actually paid by you for use of the website and the services for the one month period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.
- Indemnity: You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims not permitted under this Agreement due to a "Limitation of Liability" or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this Website or the Services. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.
|ABUSIVE CONDUCT ||LIQUIDATED DAMAGES
Violations of provisions of this Agreement designed to avoid Hiya Mail being viewed as a source of spam, which consequentially damage Hiya Mails sender reputation. These include sending emails to people who have not consented to receiving bulk emails from you in the immediately preceding 12 months and to whom you are not otherwise authorized to send Emails under 11(b) above; sending Emails offering the types of products or services set forth in 11(f) above; or sending Emails that include false or misleading headings or other content or otherwise violate anti-SPAM laws, i.e., laws that restrict and regulate the sending of bulk emails.
Five times the total of our then current monthly charges over a period of 1 year (i.e. 5 times 12 times our monthly charges), but not less than $900
Violations of provisions of this Agreement designed to protect Hiya Mail from its users taking actions to use Hiya Mail's resources in a way not permitted hereunder such as using our Services to host images other than for emails you send out using the Services such as for your website; or sending out any Emails created using the Services, other than via the Services.
Four times the total of our then current monthly charges over a period of 1 year (i.e. 4 times 12 times our monthly charges), but not less than $720.
Not paying an amount due within ten (10) days after a notification that your account is in arrears.
Three times the total of our then current monthly charges over a period of 1 year (i.e. 3 times 12 times our monthly charges), but not less than $540 in addition to the sum owed.
- Attorney Fees: In the event we file an action against you claiming you breached this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney's fees in addition to any damages or other relief which we may be awarded.
We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.
- Restricted Rights: Notice to U.S. Government End Users. The Software, including all documentation, are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable, consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
- Reporting Violations: If you become aware that any other person is violating any of the terms and conditions of this Website, please notify us immediately. Likewise, if you believe that any person has posted material in violation of any copyrights that you may have, or that any user of this Website has posted materials in violation of any other rights that you may have, please notify us.
- Assignments: You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity at our discretion.
- Compliance With Law: In using the Services, you agree that you will comply with all applicable laws.
(Applies to All Members to the extent they Use Hiya Mail to Send Any Form of
Email to Residents of the European Economic Area ("EEA") Which Is
Composed of the Members of the European Union ("EU") Together with
Iceland, Norway and Liechtenstein)
- Warranties of Compliance:
You represent and warrant that in compiling your Email distribution list, sending Emails via the Hiya Mail Services and collecting information as a result of individuals visiting your website or otherwise, with respect to your customers and potential customers who reside in the EEA, you:
- Represent and warrant that you have complied, and will comply, with all data protection and privacy laws and regulations applicable to the countries in which you are sending any form of email via Hiya Mail including, for example, with respect to the United Kingdom, the Data Protection Act, 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, 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 and obtained all necessary consents to enable Hiya Mail to receive and process that data and forward communications to that individual on your behalf.
You further agree to indemnify and hold us harmless from any losses, including attorney fees, resulting from your breach of any part of the foregoing warranties.
(Additional Provisions Applicable to All Members)
||Force Majeure. We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow downs over the internet or any third party internet service providers.
| 23.2 ||Survivability. The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.|
| 23.3 ||Severability. The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.|
|23.4 ||Interpretation. The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.|
|23.7 ||Further Actions. You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.|
| 23.8 ||Notification of Security Breach. In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a "List"), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.|
| 23.9 ||Amendments. No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.|
| 23.10 ||Notices. Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website. Any notice to us will be effective when delivered to us at legal(at)hiyagroup(dot)com or such replacement addresses as we may later provide on the Website.|