Introduction to Agentless Terms of Use

IMPORTANT  -  READ CAREFULLY:    These "Terms of Use" (sometimes referred to as this "Agreement") constitutes a legal agreement between you and HowAreYouChangingThings Inc. dba Agentless, a registered corporation in Ontartio, Canada, ("Agentless," "we," or "us").  You are a customer ("Member") (or will become a Member if you agree to our Terms of Use by clicking below).  If an individual is using this website on behalf of an employer  or client, has the legal authority to  sign the Agreement on behalf of the employer or client, and purports to sign on behalf of the employer or client, "you" refers to the employer or client.  If not, "you" refers to the individual signing hereon.   You are responsible for assuring that all the terms and conditions of this Agreement are complied with.    By clicking the button to join Agentless, you will be agreeing to the terms of this Agreement.  Furthermore, by clicking that button you do confirm to us that you are "signing" this Agreement for all purposes under applicable law.  Any individual clicking the button on behalf of another individual or entity, listed as the Member above, does hereby represent and warrant that such agreement is being made with full authority. 

Agentless Terms of Use

Part 1
(Applies to All Members of Agentless)

1.  Who We Are:  "Agentless" is a trade name and registered service mark of HowAreYouChangingThings Inc, a registered corporation in Ontario, Canada, that owns and operates the website with the URL: http://www.agentless.ca (the "Website").

2. Purpose:   The purpose of these Terms of Use (this "Agreement") is to set forth the terms and conditions under which you are permitted to use our email/electronic newsletter/fax creation, distribution and  management system (the "Services").   Any message, including but not limited to any email and/or fax, sent out using the Services, are referred to herein as a "Message."

3. Changes:  We reserve the right to change any of the terms of this Agreement by making the change available in the Terms of Use posted on our Website and/or by sending an email to the last email address you have given to us and such change will be effective immediately with respect to any continued or new use of the Services.

4. 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.

5. Charges and Payments

A.  Annual Plans

5.1 Our charges for annual plans are posted on our Website and they may be changed from time-to-time by postings to our Website.  Payments are due for any year on the same date, or the closest date in that year, to the date of the year you signed up with us.  Payments are due for each year during the "Term."  We may suspend or terminate an account without prior notice for non-payment.

5.2 As long as you are a Member, you agree to at all times provide us with valid credit card information and you authorize us to deduct the annual 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.

B.  Monthly Plans

5.3 Our charges for monthly plans are posted on our Website and they may be changed from time-to-time by postings to our Website.  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.  Payments are due for each month during the "Term."  We may suspend or terminate an account without prior notice for non-payment.

5.4 As long as you are a Member, you agree to at all times provide us with valid credit card information and you 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.

6. 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 annual or monthly prepayment if we terminate against 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 Messages to people who have not consented to receive the Messages or, even if consent was obtained, you had not sent any emails to such list for more than 12 months.  Once terminated, we may remove any of your list, emails, faxes and related data and files from our Website and any other storage.  Additionally, if you do not login to your account for 18 months, your account will be deemed "inactive" and we will permanently delete your account and all data associated with it.

7. Account and Password:  You are responsible for maintaining the confidentiality of any user names and passwords.  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.

8. 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.

9. 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 email, fax, 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.

10. General Rules:  You agree to the following:

(a) You will not incorporate into your Message any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Message or you are not otherwise permitted to use.

(b) You will not post on the Website, including in any Messages created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.

(c) 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.

(d) You will not share your password. 

(e) 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.

(f) You will not include in any Messages 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.

11. Anti-Spam and Abuse Related Rules You agree to the following:

(a) Definition of SPAM:  We have adopted the definition of Spam set forth on the Spamhous website at http://www.spamhaus.org/definition.html .  The first line of the Spamhous definition reads: 

The word "Spam" as applied to Message means Unsolicited Bulk Message ("UBE").

It is a concern to us if you use Agentless to send any unsolicited email to anyone who has not consented to receive Message from you.   It is much more of a concern, and more likely to cause our system to be blocked by various ISP's, for you to send an unsolicited email to an entire list of people you don't know.

(b) Permission Lists Only:  You may use Agentless only to send Messages to individuals and entities that have given or give you written (including electronic) permission to send Messages to them, without subsequently withdrawing such permission and either:

(i)  gave you the permission within the prior 12 months; or

(ii)  to whom you have sent a promotional email, which was not objected to, within the prior 12 months.

If you send Messages to a list, and you get an unusual amount of SPAM complaints (more than 1 out of 1,000), ISPs will begin blocking future emails from your company. They will also request (that's putting it mildly) that Agentless shut down your account. So if you don't have proof that each recipient on your list has opted-in to receive your emails, don't import them into Agentless.

(c) Requirements: You agree that you will use:

You should only use Agentless to send newsletters, updates, and promotions to people who specifically requested email from you

(d) We're In This Thing Together:  We do what we can to keep our system clean, but you agree to pitch in too. Here's how:

(e) CRM, Salesforce, and API Imported Lists

CRM tools are great for maintaining relationships with prospects and leads, then converting them into paying customers. Or just nurturing your customer relationships. But CRM tools are built for one-to-one communication. Message marketing tools like Agentless are built for one-to-many communication. They are not the same. Spam laws apply when you do one-to-many email marketing

Before importing any list into Agentless 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. Even if you're sending email marketing to customers who have consented to receive your Message, you are still required, under applicable law, to allow them to opt-out of your email marketing list (you may need to turn that feature ON in your CRM tool). The simple fact that a recipient is "in my CRM" is not the same as "they gave us permission to send them email marketing."

(f) Prohibited Content and Industries

Don't use Agentless to send anything offensive, to promote anything illegal, or to harass anyone.  You may not send:

Also, there are some industries that send certain types of content that result in higher than normal bounce rates and abuse complaints, which in turn jeopardize the deliverability of our entire system. No offense intended, but because we must ensure the highest delivery rates possible for all our customers, we do not allow businesses that offer these types of services, products, or content:

Generally speaking, if you're in an industry that is frequently associated with spam, you know who you are (it's probably why you're reading this far, right?). We make no judgments about your line of business, but we cannot afford to risk our deliverability. In fact, most ESPs like Agentless will not be able to help you. You will most likely need to look into setting up your own mail servers. The term to search on is "email delivery server." There are many industrial strength MTAs to choose from with built-in delivery and reporting tools for high-volume senders.

(g) Who Can Use Agentless

If you do not meet these eligibility requirements, you may not use the Agentless service:

1. You must be at least 18 years of age, and be able to form legally binding contracts under applicable law.
2. 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.
3. Agentless does reserve the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, in its sole discretion.

(h) Data Archival

Our servers store tons of data. Occasionally, we need to archive some of it to make room for new data, so that we don't have to keep raising prices in order to afford more and more servers. So here are our data archiving rules:

1 Trial and free accounts - For trial or free accounts, any list that you haven't sent an email to in 12 months will be archived. Because emails change so often, it's recommended you stay in contact with your lists more frequently than every year. Sending to a one-year-old, dormant list often results in too many hard bounces, which can jeopardize the deliverability of Agentless for all our customers.

2 Old list - For regular accounts, any list that you haven't sent an email to in 24 months will be archived. Because emails change so often, it's recommended you stay in contact with your lists more frequently than every other year. Sending to a two-year-old, dormant list often results in too many hard bounces, which can jeopardize the deliverability of Agentless for all our customers.

3 Old campaign results - For regular accounts, all campaigns results older than 24 months will be archived.

(i) Bandwidth Abuse: Image hosting, API, Tracking

You may not use our bandwidth for anything other than your Agentless communications.  In this regard, you agree to the following:

(j) Fees, Refunds, Account Suspensions, Etc.

You agree:

1. Agentless reserves the right to change our fees at any time. We will send email notifications to users if and when we do.
2. 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.
3. 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.
4. 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)

(k) 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. It's not just bad for the Internet community in general---if illegal and/or abusive spam gets sent from our system, we'd get blocked by all major ISPs, which would make our system useless for the thousands of users who depend on us.

It's in our best interest to keep our system clean, because our reputation and deliverability depends on it. So here's what we do:

No Anonymity
Spammers use anonymous email accounts to do their work. So you can't create a free trial account using some anonymous @yahoo.com, @hotmail.com, etc. email account. Spammers also hack into personal, at-home email accounts (with viruses). So we don't allow "home" accounts either. We continually add to our database of free/anonymous/personal email address services so that we can block spammers from even entering.

Human Review & Approval

Free trial account users cannot purchase Message Credits or a monthly membership until they've been reviewed and approved by a human at Agentless. We have a list of 26 criteria that we use to analyze new accounts to determine risk. Criteria range from domain reputation to suspicious account activity. We can often tell in the blink of an eye who's an abusive spammer.

Reporting Abuse

We take abuse reports seriously at Agentless. If you've received spam that you think came from a Agentless user, we want to hear about it. Here's how to get in contact with us:

Report Bad Senders

Every campaign sent from Agentless has an embedded Campaign Tracking ID (CID) in the email's header that makes it easy for recipients to report suspected spam.

If the campaign you received does not contain a CID, it didn't come from Agentless. It was probably just spoofed to look like it came from Agentless (something that inevitably happens to everyone online).

12. No Warranties:  Except as expressly set forth herein, 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.

13. Limitation of Liability:  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.

14. 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 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 violations by you, or any individual using your password, of any of the terms of this Agreement. 

15. Disclaimers: We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.

16. Canadian Export Controls:  The software that supports the Services (the "Software") is further subject to Canadian export controls. None of the Software may be downloaded or otherwise exported or re-exported in violation of Canadian export laws. Downloading or using any of the Software is at your sole risk.

17. 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.   Published and Unpublished rights are reserved under the copyright laws of the United States. Manufacturer is HowAreYouChangingThings Inc., 9217 Hwy 6, Kenilworth, ON.

18. 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.  If you believe that any person has posted material in violation of any copyrights that you may have, you may notify us in accordance with our Copyright Policy.  If you believe that any user of this Website has posted materials in violation of any other rights that you may have, you may notify us in accordance with our Removal Policy.

19. Assignments:  You may not assign any of your rights hereunder.  We may assign all rights to any other individual or entity at our discretion.

20. Compliance With Law:  In using the Service, you agree that you will comply with all applicable laws.

21. Applicable Law and Jurisdiction:  This Agreement will be governed by the laws of the Province of Ontario. 

 

Part 2
(Applies to All Members to the extent they Use Agentless to Send Any Form of Message 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)

22. Warranties of Compliance:

22.1 You warrant and represent that in compiling your Message distribution list, sending Messages via the Agentless service 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:

(a) Will have clearly described, and will continue to clearly describe, in writing how you intend to use any data collected, including for sending Messages if you obtain express consent from your customers and potential customers to use the data in that manner, and include an express consent to transfer the data to Agentless as part of this process, and otherwise comply with whatever privacy policy you have posted.

(b) 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 Agentless including, for example, with respect to the United Kingdom, the Data Protection Act 1998 (and subsequent amendments thereto and relevant subordinate legislation, and to the European Union Data Protection Directive), 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 Agentless 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. 



Part 3
(Additional Provisions Applicable to All Members)

23. Miscellaneous

23.1 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, 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 acts, omissions, 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.

23.5 Amendments.  No amendment or other change of this Agreement shall be effective except as either expressly permitted under these Terms of Use or agreed to in writing between the parties.

23.6 Messages We Send You.  You agree that we may send Messages to you and access and use your information as set forth in our Privacy Policy.

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 Interpretation.  The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.

23.9 Amendments.  No amendment or other change of this Agreement shall be effective unless and until either set forth in writing and posted by us on the Website or emailed by you to us and agreed to by us in a reply email. 

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.

23.11   No Changes in Agreement at Request of  Member. Because of our huge number of Members, we cannot, as a practical matter, change this Agreement for any one Member or group of Members.  If we did that, keeping up with the changes alone would be a logistical nightmare.  In addition one reason we are able to offer one of the most powerful email/electronic newsletter creation, distribution and management systems at a low price is that we are able to use this Agreement to reduce our financial risks.

23.12 Entire Agreement.  The terms of the Privacy Policy, Copyright Policy and Removal Policy posted on this Website are incorporated by reference herein.  This Agreement, including the policies which are incorporated  by reference herein, embody the entire agreement and understanding of the parties, and supersedes all prior agreements, representations and understandings between the parties hereto, relating to the subject matter hereof.