Inxmail GmbH, Wentzingerstr. 17, 79106 Freiburg, Germany (“Inxmail”), provides its services based on the following General Terms and Conditions (the “Terms”) to the exclusion of all others. These Terms apply to all present and future transactions and agreements between the customer (the “User”) and Inxmail.
The User’s general terms and conditions are expressly excluded and do not form part of any agreement between the User and Inxmail. Any modifications, alterations to or deviations from these Terms will only take effect on written confirmation by Inxmail.
Services of Inxmail
Inxmail markets products and software solutions for e-mail marketing. Its e-mail marketing system is sold as an ASP service and licensed solution.
ASP means that Inxmail provides the User with the technological platform for performing e-mail marketing campaigns. Inxmail will attempt to deliver all dispatched e-mails. It is however unable to guarantee the successful delivery of e-mails. Inxmail simply conveys the e-mails and does not check the content thereof under legal, factual or other aspects. Inxmail is furthermore not responsible for the content of the e-mails it conveys.
Licence means that the User acquires the right to install and use Inxmail software in accordance with the licence.
Conclusion of Contract
By placing the order, the User declares its binding intention to purchase the ordered service. Inxmail is entitled to accept the contract as specified in the order within 10 days of receipt by Inxmail.
The contract is concluded on acceptance of the contract by Inxmail in the form of a written confirmation or on performance of the service by Inxmail.
If the User orders a service online, order receipt will be confirmed immediately. Confirmation of receipt does not constitute conclusion of contract. The confirmation of receipt may be coupled with a declaration of acceptance.
The agreement will be concluded subject to the proper and timely delivery of the materials by Inxmail’s supplier, insofar as non-delivery is beyond its control. The User will be notified without delay if the ordered product is not available and refunded any payment that has been rendered.
If the User ordered the services online, the text of the Agreement is saved and sent via e-mail at its request together with these Terms.
Delivery / Right of use
The provisions of the “Software Licensing Agreement” between the User and Inxmail will apply to delivery and the right of use.
Prices and Terms of Payment
The prices listed in the most recent price list are binding. Prices do not include the GST.
Inxmail reserves the right to change the prices for its software and services. Inxmail will inform the User of any price increases no later than six (6) weeks before these take effect. If the parties agree on a delivery time of more than four (4) months, the prices of Inxmail valid at the time of delivery or provision of the software or services will apply.
A separate agreement will be reached for certain services rendered by Inxmail on behalf of the User if those services are not included in the price list.
Unless agreed otherwise, payments are due immediately on receipt of invoice. If the User does not make payment within the stipulated time on receipt of the invoice, the User is in default of payment and Inxmail is entitled to refuse performance of all deliveries and services to the User from this and other agreements.
Interest is payable on all overdue accounts calculated on a daily basis at the rate of 2% per month as from the due date for payment until payment is received by Inxmail.
A right of retention of payment by the User is excluded except in relation to the same agreement. The User is only granted a right to set-off in cases where its counterclaims have been determined by a final judgement.
In the case of mail order purchases, the User is also required to pay a flat rate shipping charge. This includes packaging. The User is responsible for disposing of the packaging materials.
Delivery dates are only valid on written agreement. The time of delivery will be extended in the event of work stoppages (strikes/lockouts), by instruction of the government or legal provisions (import/export restrictions) or due to force majeure. The User will have the right to withdraw from the agreement in the event of delay by the seller after a reasonable extension. Other claims for compensation in this regard are excluded, except in the case of intentional or gross negligence by Inxmail
Right of Withdrawal / Return
The consumer is granted the right to return software within a period of two weeks subsequent to receipt and to withdraw from the agreement with indication of reason. The consumer can exercise its right by returning the software and documentation to Inxmail or by declaring and confirming in writing, by fax or via mail that he has deleted the software.
The consumer is not responsible for return postage on orders of over $80,00.
Timely receipt of the notification by Inxmail will be deemed as adherence to the deadline.
The consumer must compensate for any deterioration in value due to the use of the product in accordance with the instructions. The consumer may inspect the goods with due care and caution. Both parties exclude consequential loss and must compensate for loss in value as a result of other usage with the consequence that this can no longer be sold as "new".
Custom or personalised licences or products are generally not returnable.
User's Due Diligence
The User must handle the personal username, passwords and customer keys he receives from Inxmail in the strictest confidentiality. The User must ensure that no unauthorised parties come into the possession of or use this information. The User must notify Inxmail in writing, by fax or via e-mail, without delay, of any loss or the possibility that unauthorised parties may have come into possession of the username, passwords and/or customer keys to enable. Inxmail to block these details.
Inxmail and the User agree that it is not possible to develop computer programs that are free of error under all conditions of use. Within the scope of the legal regulations, Inxmail warrants that the software complies with the specifications software in the product description and the user’s manual.
If the software significantly deviates from the specifications Inxmail will, at its option, perform improvements or provide replacement.
If Inxmail is unable to remedy the significant deviations to the agreed specifications by means of improvement within a reasonable period or to enable the use of the software by the User as per agreement, the User can terminate the agreement.
The User must notify the observable defects or deficiencies in writing, by fax or via e-mail, within a period of one (1) week of receiving the software. If the User fails to do so, all warranty claims are excluded. Sending the notification within this time period is sufficient to observe the deadline. The User bears the burden of proof that a claim exists, in particular in regard to the defect itself, the time of determination and the promptness of the complaint.
The User must provide Inxmail with verifiable documentation on the type and occurrence of deviations to the agreed specification and assist in providing further details on the errors for purposes of limitation.
The warranty does not cover defects or deficiencies resulting from deviations to the intended conditions of use for the software or defects and deficiencies to modified or amended versions of the software and the licensed material. Should the User elect to terminate the agreement after rectification has failed, the User is not entitled to compensation due to defect or deficiency.
The warranty period for the supplied software is one (1) year starting on the date of delivery. This does not apply if the User fails to provide notification of the defect or deficiency in due time.
The above-mentioned warranty provisions must also apply to users of ASP services. If the User observes defects or deficiencies in the software, including the user's manuals and other documentation, or the software is unavailable for full use due to failures or faults, these will be remedied by Inxmail once the User notifies Inxmail hereof in writing, by fax or via e-mail. The notification must include a detailed description of the specific defect or fault as required for Inxmail to remedy the defect or fault. The User must observe any instructions provided by Inxmail. Inxmail will notify the User if the defect or fault is unable to be remedied in a reasonable period of time.
Limitation of Liability
Inxmail is not subject to, and the User releases Inxmail from any liability (including but not limited to loss of profits, revenue, use or opportunity, re-installation costs and any direct or indirect form of loss or damage) because of any delay in delivery or fault or defect in the software or the services.
The User acknowledges that Inxmail is not responsible and the User indemnifies Inxmail from any claim by a customer or client of the User arising from or relating to the use of the software otherwise then strictly in accordance with the user’s manual provided with the software.
Inxmail's liability under the contract with the User or any statutory provisions is limited, at Inxmail's option, to:
This does not apply in cases where Inxmail may be accused of gross negligence or in cases of imputable bodily harm, damage to health or loss of life of the User.
Inxmail assumes no liability if changes or modifications are made to the software.
Additional claims on whatever legal grounds are expressly excluded. Inxmail will not be liable for loss of data, damage to data media or other programs, business interruptions etc.
Inxmail will treat any information it receives with confidentiality and will only use this data for the purpose of this agreement. Data will not be transferred to third parties without the consent of the client. Data will be deleted in their entirety on request, unless this is required for the execution of this agreement.
Inxmail’s Release and Indemnity
The User expressly agrees to comply with all legal provisions, in particular those that restrict the dissemination of content and information as well as all provisions under the Privacy Act 1988 (Cth). If any claims are asserted by third parties against Inxmail in respect of any alleged failure by the User to comply (in particular, but not limited to, the transmission of e-mails or faxes to recipients without the prior consent of said parties), the User must release Inxmail from such claims and indemnify Inxmail from and against any loss, costs or expenses. This includes expenses relating to an appropriate legal defence to contest these claims.
Any amendments and supplements to these Terms must be made in writing.
These Terms are governed by the laws of the State of New South Wales, Australia and each party submits to the non-exclusive jurisdiction of the arbitration tribunals and to the courts of New South Wales.
The invalidity or unenforceability of any provision to these Terms will not affect the validity or enforceability of the remaining provisions. The provision deemed invalid or unenforceable, in part or in whole, will be replaced by a valid provision, the effect of which is the closest possible to the intended purpose of the invalid or unenforceable provision.
Freiburg, October 2013, Inxmail GmbH, Wentzingerstr. 17, 79106 Freiburg, Germany