In order to use CreateSend you need to agree to the following terms & conditions.
Through CreateSend (the “Services”) CreateSend provides web site operators and other individuals a variety of tools and resources to collect visitor e-mail addresses and to create, launch, and manage online e-mail campaigns. This service may not be used for the sending of unsolicited e-mail (sometimes called “spam”). See our Anti-Spam Policy. The following are the terms and conditions for use of the Services. By checking the “I have read and agree to the CreateSend.ie Anti-Spam Policy & Terms & Conditions” statement on the account sign-up page, I accept these terms and conditions agree to be bound by this Agreement.
The Services are provided subject to these terms and conditions, which also incorporate our Anti-Spam Policy and any other guidelines, rules or operating policies that CreateSend may establish and post on our website from time to time (collectively the “Agreement”). If the European Commission Standard Contractual Clauses (Processors) apply to your activities then these Clauses will be incorporated into these terms and conditions and will form part of this Agreement,
Please read this Agreement carefully before proceeding with any use of our website or the Services. If you do not accept the terms and conditions of this Agreement, please exit this website and cease using the Services immediately.
In this Agreement the following terms shall have the meanings set out below:
(i) “GDPR” means EU General Data Protection Regulation 2016/679.
(ii) The terms “ Data Processor”, “Data Subject”, “Personal Data Breach”, “Processing”, will have the same meaning as in the GDPR.
(iii) The “Data Protection Laws” means the GDPR and to the extent applicable the Data Protection & Privacy Laws of any other country.
Subscriber Lists, Campaign Content and Campaign Reports
CreateSend ensures that all subscriber lists, email content and reports remain private and confidential. CreateSend may scan the content of your campaigns to ensure it complies with our terms & conditions — to protect against defamatory, inaccurate, abusive, obscene, profane, or threatening material that is racially or ethnically offensive. CreateSend will not sell, rent, loan or invite external access to a customer’s contact lists. Nor will CreateSend themselves use customer’s contact lists for any purpose.
1. Services and Support
1.1 By posting updated versions of the Agreement on the CreateSend website, or otherwise providing notice to you, CreateSend may modify the terms of this Agreement and may discontinue or revise any or all other aspects of the Services at its sole discretion. All such changes shall become effective upon posting of the revised Agreement on the CreateSend website. Your continued use of the Services will constitute your acceptance of the variation to the Agreement. CreateSend will use reasonable efforts to make you aware of any changes to the terms of this Agreement. If you elect to discontinue using the Services due to any changes to the Agreement made under this section 1.1, you will be entitled to a refund for any unused, prepaid amounts for the Services.
1.2 The Services are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, your use of the Services is expressly prohibited.
1.3 The Services enable corporate, small business and community websites to sign up website visitors, collect and retrieve visitor sign-up data, and to develop and execute email communications with visitors and others (including your customers).
1.4 Both the number of email messages sent and the number of KiloBytes of data transferred are metered by CreateSend. Normal CreateSend accounts allow you to send an unlimited number of email messages. The total KiloByte data transfer of each message can be no more than 300kb.
1.5 All email delivery prices are subject to change at any time. All fees paid to CreateSend for the Services are non-refundable, unless an account is terminated by you under clause 1.1 or by CreateSend for a reason other than violation of the Anti-Spam Policy. Payment for Services must be made by a valid credit card accepted by CreateSend, unless other payment arrangements have been made between you and an authorized CreateSend representative. You hereby authorize CreateSend to charge your credit card whenever you use the Services to send a campaign to more than 5 recipients. Fees are payable in Euros. If CreateSend is for any reason unable to effect automatic payment via your credit card, you will be notified via email. All prices are subject to change and you are responsible for reviewing the Pricing Schedule from time to time and for remaining aware of the fees charged by CreateSend for the Services.
1.6 For all accounts, CreateSend may charge an account re-activation fee should an account need to be re-activated by a customer after an account has become de-activated due to non-payment, an untimely authorization for payment, or any other breach of this Agreement.
1.7 You must complete the registration form on this signup page in order to use the Services. You will provide true, accurate, current, and complete information about yourself as requested in the registration form. As part of the registration process, you will identify an email address/username and password for your CreateSend account. You are responsible for maintaining the security of your account, username, passwords, and files and for all uses of your account and of the Services in your name. CreateSend reserves the right to refuse registration of, or cancel accounts it deems inappropriate.
1.8 It is understood that CreateSend makes no guarantee that HTML messages will be rendered properly on all recipients’ email programs, due to the wide variety of HTML generation tools available. CreateSend makes every reasonable attempt to make sure that all email messages sent through our servers follow email standards, but we cannot guarantee that messages will look consistent across all email platforms due to the number of different HTML composition tools available. For example, if you use Microsoft Word to generate HTML email messages, it is expected that recipients of your message using a non-Microsoft email application may have difficulty reading your message. For best results CreateSend recommends the use of HTML editors that generate HTML that adheres to W3C standards.
1.9 For a Trial account you agree to let CreateSend email you for the purposes of a follow-up to decide whether you intend to use CreateSend’s services or not. All inactive Trial accounts will be deleted after a period of 60 days.
2. Restrictions and Responsibilities
2.1 This is an Agreement for the Services, and you are not granted a licence to any software under this Agreement (except to the extent required for you to use the Services). Except to the extent that applicable laws prevent CreateSend from doing so, you will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services or any software, documentation, or data related to the Services (“Software”); remove any proprietary notices or labels from the Services or any Software; reproduce or copy the Software or the Services or any part thereof; modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software. The Services shall be used for your internal business (which includes civic or charitable) purposes only and you shall not use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party. If you are using the Services in any country in the European Community or Australia, the prohibition against modifying, translating, reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs or the Australian Copyright Act 1968 (Cth).
2.2 You acknowledge and agree that the Services, the Software, the CreateSend company names and logos and all related product and service names, design marks and slogans, and all other material comprising the Software or the Services, are the property of CreateSend or its affiliates or suppliers (collectively, the “Marks”). Unless stated otherwise, all Marks are protected as the copyright, trade dress, trademarks and/ or other intellectual properties are owned by CreateSend or by other parties that have licensed their material to CreateSend. You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of CreateSend. Your use of the Services confers no title or ownership in the Services, the Software or the Marks and is not a sale of any rights in the Services, the Software or the Marks. All ownership rights remain in CreateSend or its third party suppliers, as the case may be.
2.3 The Services may only be used for lawful purposes. Transmission or solicitation of any matter that violates Irish, EU, Australian or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.
2.4 In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to CreateSend. CreateSend may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Services, or to communicate separately with you.
2.5 CreateSend will not use any of your subscriber lists or any other customer information for any other purposes than those related to the Services. Your customer information will not be shared with any other parties. In addition, CreateSend will not use your customer information for the purpose of sending unsolicited commercial email.
2.7 You must not use the Services to distribute illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or any other prohibited material.
2.8 You must not use the Services to send email campaigns that link to or display nudity, obscene content, gambling related content, pay day lender related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.
2.9 You must not use the Services for the sending of unsolicited email (sometimes called “spam”). See our Anti-Spam Policy (which forms part of this Agreement) for further information.
2.10 All rights not expressly granted are reserved.
2.11 The Services may contain materials produced by third parties or links to other websites. Such materials and websites are provided by third parties and are not under CreateSend’s direct control and CreateSend accepts no responsibility or liability in respect of any such third party materials or for the operation or content of other websites (whether or not linked to the Services). You acknowledge that CreateSend is entitled to require you to remove any link from another website to the Services which you install without obtaining CreateSend’s prior written consent.
3.1 You may terminate this Agreement at any time by sending an e-mail message to [email protected] or by sending written notice to CreateSend, Suite 1, Information Age Park, Ennis, Co. Clare, Ireland. Correspondence must include your first name, last name, and CreateSend username. No refunds will be issued if you terminate this agreement.
3.2 CreateSend may terminate this Agreement or the Services at any time with or without cause, and with or without notice. CreateSend shall have no liability to you or any third party because of such termination. If CreateSend terminates this agreement because you violated the Anti-Spam policy, no refund will be issued.
3.3 Upon termination or expiration of this agreement, CreateSend shall (at your election) delete or return to you all Personal Data in its possession or control, save that this requirement shall not apply to the extent CreateSend is required by applicable law to retain some or all of the Personal Data or the Personal Data that CreateSend is a controller of.
3.4 If you do not log into your account for more than 120 days, the account will become inactive. When an account is classified (at CreateSend’s sole discretion) as inactive, CreateSend will flag that account as inactive. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM THE CreateSend DATABASE.
4. Warranties, Disclaimer and Remedies
USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CREATESEND DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW CREATESEND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for CreateSend to use commercially reasonable efforts to adjust or repair the Services, or where such adjustment or repair is not feasible, for CreateSend to either (at its discretion) perform the Services again or provide you with a refund for the amount you actually paid to CreateSend for the relevant Services.
5. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL CREATESEND OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “CREATESEND “) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOSS OR DAMAGE (INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, EXEMPLARY, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA, OR FAILURE TO REALISE ANTICIPATED SAVINGS OR BENEFITS OR BUSINESS OPPORTUNITIES), OR FOR ANY CLAIM BY ANY OTHER PARTY.
CREATESENDS’S EXCLUSION OF LIABILITY APPLIES WHETHER THE CLAIM IS IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION, NEGLIGENCE) OR EQUITY AND EVEN IF CREATESEND HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
YOU AGREE THAT CREATESEND’S LIABILITY TO YOU AT LAW WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH YOU CONTRIBUTED TO THE LOSS.
IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, CREATESEND IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), TO THE FULLEST EXTENT PERMITTED BY LAW THE LIABILITY OF CREATESEND TO YOU WILL BE LIMITED TO:
(A) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS, THE REPAIR OF THE GOODS, THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND
(B) IN THE CASE OF SERVICES, THE SUPPLYING OF THE SERVICES AGAIN OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES.
6. Export of Services or Technical Data
You may not remove or export from Ireland or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of Ireland and all other applicable countries.
7.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
7.2 CreateSend and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
7.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind CreateSend in any respect whatsoever.
7.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
7.5 The Agreement shall be governed by the laws of Ireland without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in courts located in Ireland.
7.6 The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded from this Agreement.
8. System Requirements
It is understood that in order to use the Services, a Windows PC with Internet Explorer 4.0 or higher must be used. Additionally, a stable connection to the Internet is required. The Services may work in a limited manner on Macintosh, Unix, and other platforms, but the Services were not designed for use on non-Windows platforms. Additionally, the Services may work in a limited manner on a non-Internet Explorer web browser (such as Netscape Navigator), but the Services were not designed for use on web browsers other than Microsoft’s Internet Explorer.
9. Compliance rules for sending email (and your spam indemnity)
9.1 All CreateSend customers must follow the rules of CreateSend’s Anti-Spam policy when sending emails through the Services. We require the following (among other things) of all email messages sent through the Services:
You represent, covenant, and warrant that you will use the Services only in compliance with this Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, defamation or data protection). You agree that you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited email to any third party. You hereby agree to indemnify and hold harmless CreateSend against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services. You acknowledge that you are responsible for the content of any emails or messages sent using the Services. Although CreateSend has no obligation to monitor the content provided by you or your use of the Services, CreateSend may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
You represent and warrant to us that:
(i) you have the legal power and authority to enter into this agreement;
(ii) that you will comply fully with the Anti-Spam policy attached hereto and all of your legal obligations to ensure that by processing your data we are not in breach of any legal obligation;
(iii) that you have obtained the consent of persons for whose personal data you provide to us in the course of this agreement for the posting of their personal information by us in the foregoing manner.
9.2.1 All emails must contain an “unsubscribe” link or other mechanism that allows subscribers to remove themselves from your mailing list. 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 CreateSend. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. CreateSend scans every campaign for the existence of an unsubscribe link. If an unsubscribe link is not detected, you will be informed and required to include an unsubscribe link before continuing.
9.2.2 All emails must contain non-Internet contact information of the sender or the entity on whose behalf the email was sent, such as that entity’s address or phone number.
9.2.3 All emails must state the reason the recipient is receiving the message. For example, “You are receiving this message from ABC Company because you signed up for our email list at www.abc.com.”
9.2.4 All emails must be compliant with any disclosure requirements that apply to the sender (e.g., some countries’ laws require that business letters, including emails, contain further identification details as to the form of the organization, the place of incorporation, the names of executives etc.)
These 4 guidelines will help ensure that CreateSend maintains its reputation and white-listing status with a number of major ISPs and whitelisting programs. If at any time your campaign is flagged as spam by a recipient, CreateSend reserves the right to cancel your account without notice. For further information in relation to spam, please read our Anti-Spam Policy (which forms part of this Agreement, including your spam indemnity).
10. Email and Permission Practices
Please see our Anti-Spam Policy for further information.
10.1 You agree to import, access or otherwise use only permission-based lists, obtained where applicable in compliance with GDPR (note: purchased lists may not be used; please contact CreateSend if you have questions).
10.2 You have informed all persons whose personal data is collected of the purposes for which that data was collected, that you may provide this information to all/your service providers for the purpose of use in relation to the services and that such data may be processed and/or stored by your service providers on servers located in the United States of America and Australia.
10.3 You are responsible for monitoring, correcting, processing unsubscribe requests within 5 days, and updating the email addresses to which messages are sent through your CreateSend account.
10.4 Emails that you send through the Services may generate abuse complaints from recipients. You are responsible for ensuring that your email campaigns do not generate a number of abuse complaints in excess of industry norms. CreateSend, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.
10.5 CreateSend, at its own discretion, may immediately disable your access to the Services without refund if CreateSend believes in its sole discretion that you have violated any of the email and permission practices listed above, or our Anti-Spam Policy.
11. Use of the Services
You will not violate or attempt to violate the security of our website or the Services. You will not hack into the website, CreateSend’s computer systems or the computer systems of other users of the Services. Hacking means unauthorised access, malicious damage and/or interference and includes, without limitation, mail bombing, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.
12. Website and Services availability
From time to time down-time, either scheduled or unscheduled, may occur. CreateSend will work within reason to ensure this amount of down-time is limited. CreateSend will not be held liable for the consequences of any down-time.
CreateSend cannot guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. You assume all risk of use of all programs and files associated with the Services, and you release CreateSend entirely of all responsibility for any consequences of its use.
13. Force Majeure
CreateSend will not be liable by reason of the failure in the performance of obligations under this Agreement by reason of strikes, riots, fire, explosions, acts of God, war, governmental action, or any other cause which is beyond CreateSend’s reasonable control.
14. Overseas Access
The Services may be accessed throughout Ireland and overseas. CreateSend makes no representations that the Services comply with the laws (including intellectual property laws) of any country outside Ireland. If you access the Services from outside Ireland, you do so at your own risk and are responsible for complying with the laws in the place where you access the site.
15. Personal Data Breach
15.1 We will notify you without undue delay upon us becoming aware of a Personal Data breach affecting the Personal Data you may have provided to us and we will provide you in such case with sufficient information to allow you to meet any obligations to report or inform Data Subjects of the Personal Data breach under GDPR and under the Data Protection Laws.
15.2 With your cooperation we will take such reasonable commercial steps as are necessary to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
15.3 We will implement and maintain appropriate technical and organisational security measures to protect the Personal Data you provide to us.
At your written request we will provide you with any of our relevant audit reports raised and/or certifications and/or responses to questionnaires as reasonably required by you to verify our compliance with Article 28 of the GDPR. You acknowledge that such information that we may provide you with constitutes our confidential information.
17. Data Protection Impact Assessment
To the extent required under GDPR we will at your expenses provide reasonably requested information regarding our services to enable you to carry out data impact assessments and prior consultations with Data Protection Authorities as required by law.
18. Sub Processing
You agree that for the purposes of the services we may appoint sub-processors to process Personal Data provided by you. We will provide you by email or by reasonable means a current version of the list of sub-processors, for more information click here.
By using our services you authorise us to continue to use those Sub-processors subject to us ensuring that such Processing is done on the basis of a written agreement which imposes on such Sub-Processor terms equivalent to those which we have accepted under these terms and conditions.
We shall ensure that any sub-processors will be obliged to protect the Personal Data supplied by you to the same standard provided for in this Agreement and to the extent applicable in respect of the nature of the services provided by such sub-processor.
Where our Sub-Processors are located in third counties outside the EEA and where a transfer would otherwise be prohibited by Data Protection Laws, we will ensure that the Standard Contractual Clauses are at all relevant times incorporated into the agreement with the Subprocessor. For the avoidance of doubt, the obligation to use the Standard Contractual Clauses will not apply where the transfer of Personal Data is authorised by Data Protection Laws in the exporting country or scheme (such as the US Privacy Shield) which is approved by the European Commission as ensuring an adequate level of protection or any transfer which falls within a permitted derogation.
We will give you prior written notice of the appointment of any new sub-processor by email including full details of the Processing to be undertaken by the sub-processor. If within ten business days after receipt of such email notice you notify us in writing of any objections (on reasonable grounds) to the proposed appointment, we will work with you in good faith to make available commercial reasonable change in the provision of the services which advise the use of that proposed sub-processor and where such a change cannot be made you may by written notice to us with immediate effect terminate the agreement.