PhpList Hosted (beta) is a hosted email delivery service that allows you to create, manage and send newsletters and email campaigns to your subscribers using the application phpList. In addition it hosts your subscriber lists, images, templates and messages and provides reports on past actions.
Currently we offer a beta version of phpList Hosted through our website www.phplist.com. By subscribing to this service, phpList Hosted (beta), or by registering with any of the future phpList Hosted services, to be offered on www.phplist.com, you agree to be bound by these terms and conditions, between you and phpList limited. phpList Ltd’s registered address is Kneath Point, 8a Flitton Rd, Greenfield, Bedfordshire, K45 5DJ United Kingdom. company number 07582966.
In these terms, where ‘phpList Hosted’ is mentioned, it includes the beta version, phpList Hosted (beta).
Supply of phpList Hosted services
phpList Ltd (“The Providerr”) provides phpList (beta) and its hosted services (“Service”). The Service is provided subject to your compliance with the terms and conditions (“Terms of Service”) set forth below. Please read the following carefully.
The Provider reserves the right to update and modify the Terms of Service at any time without notice. New features that may be added to the Service shall be subject to the Terms of Service. Should you continue to use the Service after any such modifications have been made, this shall constitute your agreement to such modifications. You may always view the most recent copy of the Terms of Service here: http://www.phplist.com/terms
PhpList Hosted is available only to persons who can form legally binding contracts under applicable law. You must complete the registration process and agree to our Terms and Conditions in order to use phpList Hosted. All contact information you submit must be true, complete, and kept up to date.
As part of the registration process, you will identify an e-mail address and password for your phpList Hosted account. You are responsible for maintaining the security of your account, passwords, and files, and for all users of your phpList Hosted account. The Provider reserves the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, at its sole discretion.
Any violation of any of the Terms will result in the termination of your account.
Limitations in the phpList Hosted services
The Provider uses a third party to host the application servers and to provide communication services. The Provider will use all reasonable endeavours to ensure the third party undertakes to provide its services at or above industry standards. Accordingly, The Provider does not warrant that phpList Hosted will be uninterrupted, error, bug or virus free or that the delivery or emails will be without delay.
It may be necessary to temporarily suspend phpList Hosted from time to time to carry out maintenance of equipment; such suspensions will be limited and will take place as much as possible outside core working hours. However, phpList Hosted may also be suspended (in whole or part) where The Provider or the third party host is obliged to comply with an order, instruction or request of government, a court or other competent administrative authority or an emergency service organisation.
The delivery of emails to recipients cannot be guaranteed and is dependent upon accurate and up to date email addresses, upon suitable internet availability and connectivity, on various anti spam and junk mail policies adopted by the recipients’ email service providers as well as restrictions regarding the content, wording and graphics of an email. The Provider makes no representations or warranties whatsoever about the speed or proportion of emails sent that will be delivered.
In addition, The Provider makes no guarantee that HTML messages will render properly in all subscribers’ email programs, due to the wide variety of HTML generation tools available. For best results The Provider recommends the use of HTML editors that adhere to W3C standards, but still does not guarantee a perfect rendering in all subscriber inboxes.
Content of messages
PhpList Hosted may only be used for lawful purposes. Transmission or solicitation of any material that violates UK, US, state or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libellous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.
You may not use phpList Hosted to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns.
You may not use phpList Hosted to send email campaigns that link to or display nudity, obscene content, online gambling related content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.
The Provider has the right (but not the obligation) to require you to remove, prohibit or discontinue any content on phpList Hosted which The Provider, at its sole discretion, determines to be harmful, offensive or otherwise in violation of the Terms and Conditions.
You shall pay the charges for phpList Hosted as set out on the phplist.com website or in accordance with the payment terms agreed with The Provider. You will be subject to monthly subscription fees in accordance with the fee schedule.
All charges quoted for the provision of phpList Hosted are inclusive of any Value Added Tax. If you are VAT registered in Europe, you will need to take care of your own VAT payments.
The Provider does not provide refunds for unused monthly subscriptions (even/especially if we had to shut down your account for violating these terms).
Payment of the charges
Payments can be submitted only by providing credit card information and by agreeing to a monthly debit on your account when registering for phpList Hosted. Credit cards will be debited on the day of each calendar month that you made your first payment. If you exceed the amount included in your subscription package, your sending capability will be suspended for that month.
If, for whatever reason, The Provider is unable to process your credit card order, The Provider will attempt to contact you by email and will pause usage of the account until the 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 subscribers’ email servers, ISP availability, personal spam filter settings, etc).
Fees are payable in US dollars.
Changes in the Service and Fees
The Provider reserves the right to modify, suspend, or discontinue the Service at any time for any reason with or without notice.
The present rates for phpList Hosted are stated on the phpList.com website.
The Provider reserves the right to change our monthly fees upon 30 days notice from us. Fee change notices may be posted to the Service or on the phplist.com website: http://www.phpList.com
Continued use of phpList Hosted following the effective date of any change in prices shall be considered acceptance of such change.
Cancellation and Termination
You alone are responsible for the proper cancellation of your account. You may cancel your account at any time. To request cancellation, you must use the contact us form online, using the subject line ‘Cancellation Request’ and stating your installation name and contact details. Direct email or phone requests to cancel your account will not be deemed cancellation – you must use the ‘Contact Us’ form. You can find the ‘Contact Us’ form here: http://www.phplist.com/contactus
To cancel the recurring monthly payments, visit the Payments tab of your account page, where you will find a cancellation button. This will not erase your account.
The Provider will then close down your account and cancel the recurring payments agreement.
Whilst you can cancel at any time, you will remain liable for all charges accrued up to that time, including full monthly charges for the month which you discontinued service. You will not be charged again.
If your first payment has already been processed, The Provider will only refund the full amount if (a) the request is received within 7 days after sign up and (b) you have not used the service to send any campaign(s). If you have paid for several months in advance, you can request a refund by contacting us using the Contact Us form. We will then calculate your refund based on the full month price without any discounts for the months the service was used, including the month of your request. Additionally a $30 administration fee will be added. This may mean there is nothing left to refund.
Data, Data Protection & Indemnity
You are the data controller in respect of any personal data that The Provider processes in the course of your use of phpList Hosted. The personal data is provided by you or the subscriber, The Provider cannot be held liable or responsible for the accuracy, contents or use of such personal data.
The Provider contracts a third party to store data (including personal data) and will back up at regular intervals (at least daily). However, you should make your own interim back-ups of these data, particularly if you add a significant amount of data over a short time period. The Provider shall have no liability for any loss or damage, however caused, arising from any loss of data.
You must comply with all applicable data protection legislation (including, if located in the European Economic Area “EEA”, any locally applicable legislation giving effect to EC Directive 95/46/EC, such as the provisions of the Data Protection Act 1998 or official guidance). In particular, you shall: (a) if located or operating in the EEA, ensure that you are notified under applicable legislation; (b) take appropriate organisational and technical measures against unauthorised or unlawful processing; (c) obtain express, specific and informed consent when obtaining the personal data from data subjects; (d) if located or operating in the EEA, only transfer personal data outside the EEA with, and only to the extent of, any express and informed written consent of the relevant data subject; and (e) permit The Provider to audit its compliance with this clause and shall provide access to all your premises and systems upon being given reasonable notice.
You shall fully indemnify and keep indemnified The Provider against any losses, claims, fines, damage or expenses (including legal and professional expenses) of whatsoever nature (whether direct, indirect or consequential) arising as a result of or in connection with any breach of this clause and/or any applicable data protection legislation.
The Provider will not disclose any personal data to any businesses, organisations or individuals without your prior express consent, unless required or permitted by law.
The Provider will not use any of your subscriber lists or any other customer information for any other purposes than those intended with providing phpList Hosted. Your customer information will not be shared with any other parties. In addition, The Provider will not use your customer information for the purpose of sending unsolicited commercial email.
Warranty disclaimer; Remedies
The Provider warrants that phpList Hosted services will be provided using reasonable care and skill.
USE OF PHPLIST HOSTED AND ANY RELIANCE BY YOU UPON PHPLIST HOSTED, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. The Provider DOES NOT WARRANT THAT PHPLIST HOSTED WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF PHPLIST HOSTED. PHPLIST HOSTED IS PROVIDED “AS IS” AND The Provider 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 non-performance of phpList Hosted shall be for The Provider to use commercially reasonable efforts to adjust or repair the phpList Hosted service.
Limitation of liability
In the event that, notwithstanding the foregoing, The Provider is found liable to you for damages from any cause whatsoever, the entire liability of The Provider under or in connection with these terms shall not exceed the amount of the charges received by The Provider from you in the preceding 12 months.
Neither party shall be responsible to the other party in circumstances where some or all of the obligations under the Terms cannot be performed due to circumstances outside the reasonable control of the defaulting party, including an Act of God, change in legislation, fire, explosion, flood, accident, strike, lockout or other industrial dispute, war, terrorist act, riot, civil commotion, failure of public power supplies, failure of communication facilities, default of suppliers or sub-contractors, or the inability to secure computer processing facilities (including those of the necessary quality or security), obtain materials or supplies and, in all cases, the inability to do so except at increased prices (whether or not due to such causes). However, if such circumstances persist for more than 28 days, the non-defaulting party may terminate the agreement and all charges due to The Provider up to the date of termination shall become due.
Intellectual property rights
phpList Hosted offers to host the application phpList and related data on The Provider’s servers. phpList is an open source application and was released under the GNU General Public License .
Permitted use & compliance with laws
You represent, covenant, and warrant that you will use phpList Hosted only in compliance with the Terms and all applicable legislation and regulations (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party.
The Provider does not accept and shall have no responsibility for the content of any emails sent using phpList Hosted. Although The Provider has no obligation to monitor the content provided by you or your use of phpList Hosted, The Provider may do so and may remove any such content or prohibit any use of phpList Hosted it believes may be (or is alleged to be) in breach of applicable legislation and these Terms.
You hereby agree to indemnify and hold harmless The Provider 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 phpList Hosted.
You agree that where The Provider is advised in writing by a regulator that you are or have been in breach of any legislation, The Provider shall be entitled to act on any request or recommendation by the regulator for access to be barred to phpList Hosted for such periods as the regulator may specify.
You agree to provide all reasonable assistance to The Provider in connection with The Provider’s compliance with any requirements or conditions which are at any time imposed by law or any regulator which are applicable to or affect phpList Hosted.
You agree to provide the regulator with such information or material relating to phpList Hosted or a future phpList Hosted service as the regulator may reasonably request in order to carry out any investigation in connection with phpList Hosted.
Communication and notices
You hereby undertake to have, and keep The Provider informed of, a valid and regularly monitored contact email address for the duration of your use of phpList Hosted. You will be deemed to have read notices sent to your contact email address and The Provider may act on that basis. Unless otherwise notified The Provider’s contact email address for the phpList hosted service is hosted at phplist.com.
In the event of any dispute arising between the parties in connection with these Terms and Conditions, senior representatives of the parties shall, within 10 working days of written notice being given by either party to the other, meet in good faith at a neutral venue of The Provider’s choosing in the United Kingdom in an effort to resolve the dispute.
Any proceedings relating to any dispute shall take place in the UK and be conducted in the English language.
If any provision of the Terms and Conditions is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and enforceable.
Each party warrants to the other that they have the power and authority to enter into agreement and perform its obligations under these Terms and Conditions.
The Terms and Conditions shall be considered to be a contract made in the UK and English law shall apply in all respects and the parties agree to submit to the exclusive jurisdiction of the English courts.