Terms & Conditions

‍Smartlead SaaS Terms of Use

These terms of use, as supplemented by the Subscription Plan, apply to your use of the Service, as developed, owned and operated by 521 Products Pty Ltd (Smartlead). By using the Service or purchasing a Subscription Plan to use the Service, you agree to be bound by these terms.

Please read the entire terms and the Subscription Plan very carefully. Some of the key items are summarised below, but this should not be used as a substitute for reading the document in its entirety:

1. Words that are capitalised have defined meanings, as set out in clause 20.
2. Your Subscription Plan renews automatically at the end of each Subscription Period. For more information on this, see clause 2.2.
3. From time to time, we may make changes to these terms. For more information on this, see clause 1.3.
4. Your Subscription Plan can be terminated in accordance with clause 9.
5. Terms relating to your data and how we may use it are set out in clauses 9 and 14.
6. Clauses 16 and 17 contain important limitations on our liability, disclaimers, exclusions, releases and indemnities. In practical terms, these clauses set out what we do not accept liability for, and what you will need to compensate us for. You should pay special attention to those.

1. Acceptance of Terms
   
   1. The Service is provided, operated, and owned by Smartlead and its related entities or body corporates providing the Service (we, us, and our).
   2. By using the Service and choosing your Subscription Plan, you agree to these terms of use as supplemented by the Subscription Plan (this Agreement). This Agreement constitutes a binding legal agreement between you and us, and your continued use of the Service constitutes your acceptance and acknowledgment of this Agreement, our Privacy Policy, Fair Use Policy, Data Processing Addendum, and any other policy displayed on our Service, all of which constitute a part of this Agreement.  If you do not agree to all of the terms of this Agreement, you must not use the Service.
   3. We may initiate amendments or modifications to this Agreement from time to time by providing you with 14 days’ notice. You will have an opportunity to reject the amendments during this timeframe. If you do not agree to the amendments, then you must notify us within that time frame, otherwise you will be deemed accept the amended version of the Agreement.
   4. This Agreement will prevail over any other terms or agreement between you and us.
   5. In this Agreement, capitalised words and phrases have the meaning given to them when first used and followed by bolded brackets, or as set out in clause 20 (Definitions) at the end of the Agreement.
2. Subscription Period and Auto-Renewal
   
   1. This Subscription starts on the Effective Date, will continue for the Subscription Period chosen by you.
   2. At the end of each Subscription Period, this Subscription will automatically renew for another Subscription Period unless you notify us in accordance with clause 9.1. Please ensure you contact us if you want to cancel your Subscription. We will endeavour to warn you before an automatic renewal.
3. Licence
   
   1. In exchange for you complying with all terms of this Agreement, we grant you a non-exclusive, non-transferable, non-sublicensable, personal, and revocable licence to access and use the Service for the Permitted Purpose during the Subscription Period.  Neither Mailbox Services or Dialling Services may be assigned or transferred to any third party, and this includes a prohibition on the assignment or transfer of any mailboxes or phone numbers allocated to you. 
   2. All use of the Service is strictly subject to our Fair Use Policy. This Agreement incorporates the Fair Use Policy, and by signing this Agreement you are taken to have accepted the Fair Use Policy. A breach of the Fair Use Policy constitutes a breach of this Agreement. We reserve the right to monitor your usage of the Service and take action if we determine that your usage is in breach of the Fair Use Policy. 
   3. We may put reasonable restrictions on volume limits on your use of the Mailbox Services (eg emails sent per hour, email size, bounce rates etc) and Dialling Services. This may be set out on the Service itself or in the Fair Use Policy. We will consider, acting reasonably, increases to the limits if You request, but we retain the ultimate discretion to reject Your request for any or no reason.
   4. You must not:
      
      1. use the Service for any purpose other than the   Permitted Purpose;
      2. use the Service in any way which is in breach of any applicable laws or which infringes any person’s rights, including Intellectual Property Rights; 
      3. use the Service to conduct fraudulent activity, including but not limited to use of spyware, conducting phishing attacks or relaying emails;
      4. without limiting subclause  3.3(b), you agree to comply with all Spam Laws. You acknowledge that any use of the Service for the purpose of sending unsolicited commercial electronic messages or making unsolicited phonecalls, as defined by the Spam Laws is strictly prohibited; 
      5. use bots or other automated tools to operate the Service other than automated tools provided by Smartlead in the Service; or
      6. do anything which may compromise or interfere with the supply of the Service or our systems, including without limitation introducing malicious programs such as viruses, worms, trojan horses, and email bombs.
   5. Please see Schedules 1 and 2 for additional terms specific to Third Party Mailbox Services and Dialling Services. 
4. Your Warranties
   
   1. You warrant and agree that:
      
      1. there are no legal restrictions preventing you from agreeing to this Agreement;
      2. you are not Insolvent;
      3. you will always act in courteous and polite manner whenever dealing with us, and never in an antisocial, discriminatory, abusive, hostile or obscene way;
      4. you will cooperate with us and provide us with all assistance, resources, data, people, information, facilities, access, and documentation that is reasonably necessary to enable us to perform the Service and as otherwise requested by us, from time to time, and in a timely manner;
      5. you are responsible (at your cost) for obtaining and maintaining any consents, licences, authorities, and permissions required for you to make use of the Services (and you will provide evidence of this to us upon request);
      6. all information and documentation (including User Data) that you provide to us or upload into the Service in connection with this Agreement is true, correct, and complete, and that we will rely on such information and documentation in order to provide the Service;
      7. you are solely responsible for establishing and maintaining any Operating Environment necessary to use and obtain the benefit of the Service.
5. Our Warranties
   
   1. We warrant and agree that:
      
      1. the Service will perform materially in accordance with the Specifications;
      2. the Service will not infringe on the Intellectual Property Rights of any person;
      3. we will maintain sufficient and appropriately qualified and experienced personnel to operate and provide the Service in accordance with the Agreement.
6. Support Services
   
   1. Subject to the below conditions being met, we will provide you the Support Services during the Subscription Period:
      
      1. you are not in breach of any term of the Agreement and you are using the Service as intended under this Agreement;
      2. your Operating Environment meets the minimum requirements set out in the Specifications; and
      3. you have provided all information requested by us in relation to Support Services.
   2. Our liability for any failure to provide the Support Services is limited to resupplying the Service support to the extent required to remedy the failure. This is your sole remedy for any failure to provide the Support Services.
   3. For clarity, any Intellectual Property Rights arising in connection with the Support Services (including any enhancements or customisations) vest exclusively in us immediately upon creation.
7. Fees
   
   1. You must pay the Fees to us without counterclaim or deduction in accordance with the Fees and payment terms set out in Annex 1 to the Subscription Plan.
   2. Unless your Subscription Plan provides otherwise, all Fees are invoiced annually in advance. The Mailbox Services (part of the SmartSenders Service) are billed monthly according to the number of your active Mailboxes in that month or for part of that month. You can delete Your active Mailboxes in the Service and Smartlead will only bill for Mailboxes which were active that month. 
   3. Unless expressly stated otherwise, all amounts stated in or in relation to this Agreement are expressed exclusive of any applicable Tax, which will be added to those amounts and payable by you to us.
   4. We may offer one or more payment processors as a way to facilitate payment of the Fees. You must make payment by way of one of the payment processors offered (which we may modify from time to time at our sole discretion). You agree that:
      
      1. any cost, fee, or other charges charged by such processor must be paid by you in addition to the Fees;
      2. you must comply with the terms and conditions of the relevant processor.
   5. We are entitled to modify our Fees at any time by prior written notice to you provided that:
      
      1. an increase is effective only 30 days after such notice is given; and
      2. a Fee is not increased more than once in a 12-month period; and
      3. the Fees are not increased during the initial Subscription Period of this Agreement.
   6. To the extent permitted by law, any Fees paid to us are non-refundable, and we do not provide refunds or credits should you cancel the Service during its current Subscription Period.
   7. If you dispute a portion of any invoice, you must still pay all undisputed portions of the invoice.
   8. In addition to any other right we have, if you fail to fully pay any amount owed to us for a period of 14 days or more, we may do any of the following at our sole discretion:
      
      1. suspend access to the Service until all amounts are fully paid (and without providing any refund or extension of the Subscription Period afterwards); and
      2. charge you interest at the rate equivalent to 1% per month on any amounts owing to us.
8. Updates
   
   1. We may implement (at our absolute discretion) Updates to the Service from time to time. We will endeavour to provide you with reasonable prior written notice of any scheduled Update that is likely to affect the availability of the Service or is likely to have a material negative impact on you.
9. Termination
   
   1. Either party may terminate the Subscription at any time, with such termination only taking effect at the end of the current Subscription Period.
   2. Either party may terminate this Subscription with immediate effect by giving written notice to the other party at any time if:
      
      1. in our case, if we deem there has been a breach of any applicable law (including, without limitation, Spam Laws);
      2. the other party is Insolvent; or
      3. the other party breaches any provision of this Agreement which cannot be remedied, or where the breach is capable of being remedied, fails to remedy the breach within 14 days after receiving written notice from the cancelling party requiring it to do so.
10. Effects of termination
    
    1. On termination of this Subscription for any reason:
       
       1. you must immediately stop using the Service, and we may take any action necessary to disable or terminate your access to the Service;
       2. each party must promptly return (where possible) or delete or destroy (where not possible to return), the other party’s Confidential Information and intellectual property, and/or documents containing or relating to the other party’s Confidential Information unless required by law or regulatory requirements to retain such information;

1. we may remove or delete all User Data after one month has passed from the day of termination;
2. you must, within 5 Business Days of termination, pay to us all Fees incurred and/or owing under this Agreement up to and including the date of termination or expiry. To the extent permitted by law, and except where expressly stated in this Agreement, Licensee will not be entitled to a refund of Fees that have already been billed or paid; and
3. all of the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 10 (Effects of Termination), 11 (Intellectual Property), 12 (User Data), 13 (Data Storage and Security), 14 (Privacy), 15 (Confidentiality), 16 (Limitation of liability) and 17 (Release and indemnity).

2. Intellectual Property
   
   1. We own all Intellectual Property Rights in the Service, the Support Services, any associated documentation, and all improvements, modifications, customisations and derivative works, whether made by us or by you, and nothing in this Agreement transfers any of those Intellectual Property Rights to you in any way.
   2. If you provide us with comments or suggestions relating to the Service, then all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modification, or derivative works), is assigned to us, and we may use the feedback for any purpose.
   3. You must not, without our prior written consent:
      
      1. copy or use, in whole or in part, any of our Intellectual Property Rights;
      2. reproduce, retransmit, distribute, disseminate, sell, publish, broadcast, or circulate any of our Intellectual Property Rights to any third party;
      3. reverse assemble, reverse engineer, reverse compile or enhance the Service;
      4. breach any Intellectual Property Rights connected with us or the Service, including altering or modifying any of our Intellectual Property Rights;
      5. cause any of our Intellectual Property Rights to be framed or embedded in another digital asset, 
      6. create derivative works or reproductions of any of our Intellectual Property Rights or the Service;
      7. resell, assign, transfer, distribute or make available the Service to third parties;
      8. “frame”, “mirror” or serve any of the Service on any web server or other computer server over the Internet or any other network;
      9. alter, remove or tamper with any trademarks, any patent or copyright notices, any confidentiality legend or notice, any numbers, or any other means of identification used on or in relation to the Service;
   4. You acknowledge that we will suffer real and substantial damage due to a breach of this clause 11 and may seek injunctive relief for any actual or perceived breach, and damages alone are not an adequate remedy.
3. User Data
   
   1. Except as otherwise stated in this Agreement, as between you and us, you own all Intellectual Property Rights and all User Data.
   2. Despite anything to the contrary in this Agreement or elsewhere, we may monitor, analyse and compile statistical and performance information based on and/or related to your use of the Service in an aggregated and anonymised format (Analytics). We and our licensors own all Intellectual Property Rights in and to the Analytics and all related software, technology, documentation and content provided in connection with the Analytics. You agree that we may make such Analytics publicly available, provided that it:
      
      1. does not contain identifying information; and
      2. is not compiled using a sample size small enough to make the underlying User Data identifiable.
   3. You grant us an irrevocable, perpetual licence (and consent) to use, process, copy, transmit, store and backup or otherwise access the User Data during the Agreement Subscription Period solely to:
      
      1. supply the Service to you (including to enable you and your personnel to access and use the Service);
      2. diagnose problems with the Service;
      3. Update or otherwise modify or maintain the Service; 
      4. train our staff; and
      5. develop other services.
   4. In relation to any User Data which you provide to us or upload into the Service, you represent and warrant that:
      
      1. you are solely responsible for the User Data and the consequences of using, disclosing, storing or transmitting it;
      2. you have obtained all necessary rights, releases and permissions to provide all your User Data to us so that we can provide the Services to you, and to grant the rights granted to us in this Agreement;
      3. the User Data (and its transfer to and use by us) as authorised by you, under this Agreement does not violate any laws (including those relating to export control and electronic communications) or rights of any third party, including any Intellectual Property Rights, rights of privacy, or rights of publicity; and
      4. any use, collection and disclosure authorised in this Agreement are not inconsistent with the terms of any applicable privacy policies.
4. Data Storage and Security
   
   1. We will use our best efforts to ensure that User Data is stored securely. However, we do not accept responsibility or liability for any unauthorised use, destruction, loss, damage or alteration to the User Data, including due to hacking, malware, ransomware, viruses, malicious computer code or other forms of interference.
   2. We will use our best efforts to create scheduled backups of User Data stored on the Service at regular intervals. If User Data is lost due to a system failure, we will attempt to restore the User Data from the latest available backup. However, we cannot guarantee that any backup will be free from errors or defects.
5. Privacy 
   
   1. You are responsible for the collection, use, storage, and otherwise dealing with Personal Information related to your business.
   2. You must comply and must ensure that all of your personnel comply, with the requirements of the Privacy Laws in respect of all Personal Information collected, used, stored, or otherwise dealt with under or in connection with this Agreement.
   3. You must:
      
      1. notify natural persons from whom Personal Information is collected about any matter prescribed by the Privacy Laws in relation to the collection, use, and storage of their Personal Information;
      2. notify us immediately upon becoming aware of any breach of the Privacy Laws that may be related to the use of Personal Information under this Agreement.
   4. This Agreement incorporates the Data Processing Addendum, and by accepting this Agreement and using the Service, you are taken to have accepted the Data Processing Addendum, even if you have not signed the Data Processing Addendum.
6. Confidentiality and Public Statements
   
   1. Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:
      
      1. where permitted by this Agreement;
      2. with the prior written consent of the Discloser;
      3. where the Confidential Information is received from a third party, except where there has been a breach of confidence;
      4. on a confidential, “needs to know” basis to the Recipient’s personnel, auditors, insurers, agents, and professional advisors; or
      5. where the Recipient is compelled to do so by applicable law, provided that it gives the other party written notice prior to disclosure.
   2. The Recipient must only use the Confidential Information of the Discloser for the disclosed purpose and in connection with this Agreement.
   3. You must not, and you must ensure none of your staff, directors or authorised representatives, make any public statement that is either (a) disparaging about us or our Services or (b) is not objectively demonstrable with written evidence. This restriction includes but is not limited to online reviews, post on discussion forums, social media posts or statements to any other entity.
   4. In the event that you breach clause 15.3 above we reserve all our legal rights, including but not limited to obtaining injunctive relief. You will reimburse all of our legal costs on demand.  
7. Limitation of liability
   
   1. To the maximum extent permitted by law, we exclude all liability and all Warranties of any kind, (including without limitation any Warranties relating to the Service, the adequacy or timeliness of the Service,  or the results that may be obtained using the Service), other than those set out in this Agreement or those that cannot be excluded due to applicable law.
   2. Subject to clause 16.9, to the extent that any applicable law restricts our right to exclude Warranties, this Agreement must be read subject to those provisions and nothing in this Agreement is intended to alter or restrict the operation of such provisions. If those statutory provisions apply, then, to the extent that we are entitled to do so, we limit our liability under such provisions to (at our discretion) the resupply of the Services or the payment of the cost of resupply.
   3. You acknowledge that complex software is never wholly free from defects, errors and bugs, and subject to the other provisions of this Agreement, we give no Warranty or representation that the Service will be wholly free from defects, errors and bugs.
   4. The Service is provided to you on an “as is” and on an “as available” basis without any Warranties arising out of any course of dealing or usage of trade. We disclaim all Warranties that the Service will be error-free, available continuously, uninterruptedly, or be free of harmful components, or that this Service and any User Data will be secure or not otherwise lost or altered. You acknowledge that we may suspend access to the Service temporarily if we have reason to do so (including but not limited to maintenance, updates, or upgrades).
   5. You acknowledge that the Service is dependent on other Third Party Services and agree that to the extent permitted by law, we will not be responsible or in any way liable for any defect or interruptions to the availability of the Service resulting from Third Party Services.  Please see Schedule 1 for additional terms specific to the supply of Third Party Mailbox Services to you. 
   6. To the maximum extent permitted by law, our liability and the liability of our employees or agents for a breach of any Warranty or liability which by law cannot be excluded, restricted or modified, or under any express Warranty, is limited, at our option, to:
      
      1. the supplying of the goods or services again; or
      2. the payment of the cost of having the goods or services supplied again.
   7. To the maximum extent permitted by applicable law and subject to clause 16.9, neither party will have any liability in connection with this Agreement for any indirect, consequential, special, incidental, or punitive damages, or any lost revenues, profits, savings, or goodwill.
   8. Subject to clause 16.9, each party's maximum aggregate liability for damages in connection with this Agreement is limited to the Fees you paid to us during the 12 month period before the event giving rise to liability. 
   9. Nothing in this Agreement excludes or limits either party's liability for:
      
      1. its fraud or fraudulent misrepresentation;
      2. its obligations under clause 17 (Indemnity);
      3. its infringement of the other party's Intellectual Property Rights;
      4. its payment obligations under this Agreement; or
      5. matters for which liability cannot be excluded or limited under applicable law.
8. Release and indemnity
   
   1. Each party agrees to indemnify (and defend and hold harmless) the other party and its Affiliates from all Claims and or Loss arising in connection with:
      
      1. the indemnifying party’s failure to comply with any applicable laws; or
      2. the indemnifying party’s gross negligence or wilful misconduct. 
   2. We agree to indemnify you from any Claim to the extent that the Claim arises because the Service infringes the Intellectual Property Rights of a third party (IP Claim). 
   3. If an allegation concerning a possible IP Claim is made, you must permit us to do one of the following (at our sole discretion):
      
      1. modify, alter or substitute the Service to ensure that the Service no longer infringes the Intellectual Property Rights alleged in the relevant IP Claim. Such modification will be at our cost and must ensure that the end product materially complies with the Specifications; or
      2. terminate this Agreement.
   4. To the maximum extent permitted by law, you agree to indemnify, hold harmless and release the Released Parties from all Loss or Claims in connection with:
      
      1. any damage to person, property, personal injury or death;
      2. your breach of any of clauses 3.4 (Licence Restrictions), 11 (Intellectual Property), 12 (User Data), 14 (Privacy) and 15 (Confidentiality and Public Statements) of this Agreement; or
      3. the User Data except to the extent that we have breached our obligations relating to the content set out in this Agreement or applicable law.

5. As conditions to indemnification under this clause 17, the indemnified party must:
   
   1. notify the indemnifying party promptly in writing of the Claim for which the indemnified party is seeking indemnification;
   2. grant the indemnifying party sole control over the defence and settlement of each Claim;
   3. provide the indemnifying party with reasonable cooperation in response to such party’s requests for assistance (including all relevant information or materials); 
   4. not have admit any fact, or settle or compromise a Claim, without the prior written consent of the indemnified party if such settlement includes an admission of liability on the part of the indemnified party; and
   5. use its best endeavours to mitigate any Loss the indemnified party suffers as a result of the Claim.
6. To the extent that it may be necessary in order to enforce the benefit of this Agreement by or on behalf of a Released Party, you agree that we hold the benefit of, and may enforce, the provisions of this Agreement that operate for the benefit of a Released Party, for and on behalf of that Released Party.
7. In this clause:
   
   1. Claim means a claim, action, proceeding, or demand made against a person concerned, however, it arises and whether it is present or future, fixed or unascertained, actual or contingent.
   2. Loss means damage, loss, cost, expense, or liability incurred by the person concerned, however arising, including without limitation penalties, fines, and interest and including those which are prospective or contingent and those the amount of which for the time being is not ascertained or ascertainable.
   3. Released Party and Released Parties mean us and our officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, related parties, related body corporates, sponsors, and other third party partners.

9. Unexpected Event
   
   1. Subject to the requirement to give notice under this clause, if the performance by any party (Affected Party) of all or any of its obligations under this Agreement is prevented or delayed in whole or in part due to any Unexpected Event, this Agreement will continue and remain in effect, but the Affected Party will not be in breach of this Agreement for that reason only for so long as the Unexpected Event persists.
   2. The Affected Party must promptly after becoming aware of an Unexpected Event, give written notice to the other party of the nature of the Unexpected Event and the way and the extent to which its obligations are prevented or delayed and notify the other party of any material change in these matters and use its reasonable endeavours to limit the effects of the Unexpected Event, and promptly carry out its obligations as soon as, and to the extent that, it is able to do so.
10. General
    
    1. All notices must be in writing and must be made by email. Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a Business Day, in which case they are deemed to be received on the next Business Day.
    2. This Agreement will override any other terms or agreement between you and us.
    3. Where there is a contradiction or conflict between different parts of this Agreement, the parts override one another (to the extent of the contradiction or conflict) in the following order:
       
       1. the Fair Use Policy;
       2. the Subscription Plan; 
       3. these terms of use; and
       4. the Data Processing Addendum.
    4. You must not assign, sublicense or otherwise deal in any other way with any of your rights under this Agreement except as expressly permitted under this Agreement. We may assign or otherwise transfer our rights under this Agreement at our sole discretion.
    5. No breach of any provision of this Agreement can be waived except with the express written consent of the party not in breach.
    6. Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable unless this would materially change the intended effect of this Agreement.
    7. This Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree to any amendment, waiver, variation, or settlement under or relating to this Agreement are not subject to the consent of any third party.
    8. This Agreement constitutes the entire agreement between the parties in relation to the subject matter of this Agreement, and supersedes all previous agreements, arrangements, and understandings between the parties in respect of that subject matter.
    9. This Agreement is governed by and construed in accordance with the law of the State. The courts of the State have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement. This Agreement will prevail over any other terms or agreement between you and us.
11. Definitions
    
    1. In this Agreement, the following capitalised terms have the following meanings:
    2. Agreement means these SaaS Terms of Use and also includes the relevant Subscription Plan, Data Processing Addendum, Fair Use Policy and all policies displayed on our Website.
    3. Business Day means a day on which banks are open for business in the State other than on a Saturday or Sunday or a public holiday.
    4. Confidential Information means all information of a confidential or proprietary nature, in any form whether tangible or not, disclosed or communicated by a party to the other, or learnt or accessed by, or to which the other party is exposed as a result of entering into this Agreement, but excluding information which:
       
       1. is or becomes a matter of public knowledge through no fault, action, or omission of the Recipient or its personnel;
       2. is rightfully received by the Recipient from a third party without a duty of confidentiality;
       3. was already known to the Recipient at the time the disclosing party first made it available to the Recipient, except as a result of disclosure known by the Recipient to be made in violation of an obligation of confidence; or
       4. was independently developed by the Recipient without reference to the information of the disclosing party.

Without limitation, our Confidential Information includes all know-how, trade secrets, technical information, specifications, data, Intellectual Property Rights, marketing procedures, enablement procedures, documentation, pricing information, client and client records, as well as business, corporate, or trade information.

5. Consequential Loss includes any indirect loss, incidental loss, consequential loss, loss of profits, loss of revenue, loss of production, loss of opportunity, loss of access to markets, loss of goodwill, loss of reputation, loss of use, any remote loss, abnormal loss, unforeseeable loss, loss of use and/or loss or corruption of data, any loss or damage relating to business interruption, or otherwise, suffered or incurred by a person, arising out of or in connection with this Agreement (whether involving a third party or a party to this Agreement or otherwise);
6. Data Processing Addendum means our Data Processing Addendum as available at https://www.smartlead.ai/dpa  or as otherwise signed by you.
7. Dialling Services means, if selected in a Subscription Plan, a service that allows you to make phone calls through the platform either manually or automatically.
8. Fair Use Policy means our Fair Use Policy available at https://www.smartlead.ai/fair-use-policy .
9. Fees means the fees set out in your Subscription Plan.
10. Insolvent, in relation to a party, means when:
    
    1. a party ceases, suspends, or threatens to cease or suspend the conduct of all or a substantial part of its business or disposes of or threatens to dispose of a substantial part of its assets;
    2. a party becomes unable to pay its debts when they fall due, or stops or suspends or threatens to stop or suspend the payment of all or a class of its debts;
    3. a party becomes or is (including under legislation) deemed or presumed to be insolvent;
    4. a party has a receiver, manager, administrator, administrative receiver, or similar officer appointed in respect of it or the whole or any part of its assets or business;
    5. any composition or arrangement is made with any one or more classes of a party’s creditors;
    6. except for the purpose of solvent amalgamation or reconstruction, an order, application, or resolution is made, proposed, or passed for a party’s winding up, dissolution, administration, or liquidation;
    7. a party enters into liquidation whether compulsorily or voluntarily; or
    8. any analogous or comparable event takes place in any jurisdiction in relation to a party.
11. Intellectual Property Rights mean all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these intellectual property rights include copyright and related rights, database rights, Confidential Information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semiconductor topography rights and rights in designs).
12. Mailbox Service means, if selected in a Subscription Plan, a service that allows you to create and operate a mailbox and  email account through the Service which can be used to send marketing emails. 
13. Operating Environment means your operating environment, facilities, systems, networks, devices, equipment, hardware, software, telecommunications, and connections.
14. Permitted Purpose means for your ordinary business use or as otherwise set out in the Fair Use Policy and your Subscription Plan.
15. Personal Information has the same meaning as in the Privacy Laws.
16. Privacy Laws means the following legislation to the extent applicable from time to time:
    
    1. the Privacy Act;
    2. national laws implementing the Directive on Privacy and Electronic Communications (2002/58/EC);
    3. the General Data Protection Regulation (EU) 2016/679 and national laws implementing or supplementing it, including the Data Protection Act 2018; and
    4. any other similar national privacy law.
17. Privacy Policy means our Privacy Policy available at https://www.smartlead.ai/privacy-policy
18. Service means the Smartlead software as described in the Subscription Plan and any Support Services we provide to you.
19. Spam Laws means any applicable spam laws and regulations, including but not limited to the Spam Act 2003 (Cth) in Australia, as well as any similar laws or regulations in other jurisdictions in which you or your intended audience are in.
20. Specifications mean the specifications of the Service as set out in the Subscription Plans.
21. State means New South Wales.
22. Subscription Period means the period of time specified in the Subscription Plan, and any renewal term .
23. Subscription Plan mean Subscription Plan executed by the parties, as well as any additional terms agreed upon by the parties in writing and executed,
24. Support Services means the Support Services listed in your Subscription Plan, and if none are listed, then Support Services will mean access to a general helpdesk during regular business hours on Business Days via a ticket system to assist you in resolving technical issues or answering questions related to the Service during the Subscription Period. Any additional support services required by you may be provided at our sole discretion and may be subject to additional fees.
25. Tax includes a tax, levy, duty, or charge (and associated penalty or interest) imposed by a public authority. It includes income, withholding, stamp, and transaction taxes (including any goods and services tax or value-added tax, however named) and duties.
26. Third Party Mailbox Service means, if selected in a Subscription Plan, a Mailbox Service supplied by a Third Party Service.
27. Third Party Service means a software, hardware, plugin, API, gateway, payment processor, network platform, solution, database, product or another service that is used for the provision of the Service or integrates with the Service, and which is provided, operated or controlled by a third party.
28. Unexpected Event means and includes such events, beyond the reasonable control of a party, that hinder, prevent or delay performance, in whole or in part, of any obligation under this Agreement including without limitation, fire, flood, casualty, earthquake, war, lockout, strike, epidemic, pandemics, riot, destruction of facilities, insurrection, material unavailability, telecommunications or internet failures, regulations or restrictions imposed by law, acts of the government or governmental requirements.
29. Update means any updates, modifications, changes or enhancements to the Service, including the adding or removing of any features or functionality, improvements, bug fixes and patches.
30. User Data any content or materials whatsoever (including but not limited to any Personal Information, information, data, text, graphics, photos, designs, trademarks, or any other artwork) which you upload or input into the Service, or that is generated by you using the Service.
31. Warranty or Warranties mean any warranties, conditions, terms, representations, statements, and promises of whatever nature, whether express or implied.
32. Website means https://www.smartlead.ai/.
33. You means any person who uses the Service.

Schedule 1 – Third Party Mailbox Services

1. This Schedule 1 only applies if a Third Party Mailbox Service is requested by you as part of the Service in the Subscription Plan. This Schedule does not apply if you are buying a mailbox service provided by us.
2. You request us to arrange the Third Party Mailbox Services, and we agree to arrange the Third Party Mailbox Services.
3. You acknowledge that the Third Party Mailbox Services are wholly subcontracted as a Third Party Service – clause 16.5 of the Terms of Use applies to the provision of the Third Party Mailbox Services.
4. You will need to accept an end user licence agreement directly with the Mailbox Provider (“EULA”).  Under the EULA you have certain rights and obligations with the Mailbox Provider. In the event of any issue with the supply of the Third Party Mailbox Services you must use reasonable endeavours to enforce your rights directly against the Mailbox Provider under the EULA. 
5. As between you and us, to the extent of any inconsistency between the provisions of the EULA and any other clause of this Agreement, the provisions of this Agreement will prevail.  But wherever possible the provisions of the EULA and the clauses of this Agreement will have cumulative effect and will be so interpreted.
6. The only services we are obliged to provide to you in respect of the Third Party Mailbox Services are the following:

1. to promptly forward any notification in respect of the Third Party Mailbox Services provided from the Mailbox Provider to you; and
2. to respond to any troubleshooting issues communicated by you to us relating to the Third Party Mailbox Services by submitting a ticket to the Mailbox Provider within a reasonable time of receiving the communication from you, during a Business Day between the hours of 9 am and 5 pm AEDT.

7. You are responsible and liable for any act or omission of your users and must ensure that they do not breach any terms of the EULA or this Agreement.
8. You must pay the Third Party Mailbox Services Fee to us without setoff or counterclaim in cleared funds to our nominated bank account by the due date in the Subscription Plan. Time is of the essence in respect of this payment. In the event you fail to pay on time we may suspend the Third Party Mailbox Services without notice. 
9. We do not recommend, endorse or vet any Mailbox Provider or any particular Third Party Mailbox Services, make no representation as to any Mailbox Provider’s capacity or ability to perform its Third Party Mailbox Services and shall not be responsible for information provided by a Mailbox Provider in respect of its Third Party Mailbox Services. 
10. In this Schedule 1, the following capitalised terms have the meanings given below:
11. EULA has the meaning given in paragraph 1.4 above.
12. Mailbox Provider means a third-party provider of Third Party Mailbox Services selected by you in the Subscription Plan.
13. Mailbox Subcontract means a subcontract entered into between us and a Mailbox Provider whereby we outsource the Third Party Mailbox Services to the Mailbox Provider.
14. Third Party Mailbox Services Fee means the amount charged for the Third Party Mailbox Services which is set out in the Subscription Plan.

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Schedule 2 – Dialling Services

1. This Schedule 2 only applies if a Dialling Service is requested by you as part of the Service in the Subscription Plan. 
2. You request us to arrange the Dialling Services, and we agree to arrange the Dialling Services.
3. Numbers are allocated to you for your use of the Dialling Services. We reserve the right to suspend or reallocate numbers allocated to you in the following circumstances: (a) our supplier of the Dialling Services requires us to for any reason; or (b) we suspect that your use of the Dialling Services is in breach of this Agreement, the Fair Use Policy or reasonable limits we impose on the Service. 
4. You may be able to port over numbers to or from our Dialling Services. Please follow all technical instructions we provide. We do not guarantee that porting will be possible in every circumstance. 
5. You must not rely on the Dialling Services for emergency calls. 
6. The Dialling Services are available on an ‘as is’ and ‘as available’ basis. 

1. We make no guarantee on availability and quality of the calls. The Dialling Services require good internet connection. You acknowledge that factors out of our control may affect the quality of the Dialling Services including issues to do with local area network, low bandwidth, public internet lines and network hardware. 
2. Transcription services within the Dialling Services may have typographical or other errors. You should not rely solely on the automated transcription services. 

7. It is your responsibility to ensure that you are using the Dialling Services in accordance with local laws and regulations, and this may include transparency and disclosure notices that you need to give to recipients of the calls.  
8. We reserve the right to delete call recordings that are older than 12 months. 
9. We may require you to securely login each time to the Dialling Services. Your authorised representatives must not share their login details with any other person. Please ensure that your authorised representatives reset their password regularly and if they have been the victim of any data breach.