Terms of Service

1.1 Introduction.

The technology for this service is provided by ‘Yoink’ ("Yoink") and is furnished "as is" under this Agreement. You must read this Agreement and agree to its terms before you may create an account for and use Yoink.

1.2 Modification of This License Agreement

Yoink reserves the right to change this License Agreement, and any Additional Terms at anytime, effective upon making the modified provisions available on the Yoink web site. You are responsible for regularly reviewing these terms and conditions. Continued use of Yoink after any such changes shall constitute your consent to such changes. Yoink does not and will not assume any obligation to notify you of any changes to the Terms of Use and Notices, or Additional Terms.

2. LICENSE

2.1 License.

Yoink grants you a non-exclusive, nontransferable license to create an account for and use Yoink for your individual use or organization in accordance with the terms of this Agreement. The information provided on this web site regarding Features, Privacy Policy, and Anti-Spam Policy is incorporated herein by reference.

2.2 Ownership.

Yoink and any associated Documentation are and shall remain the sole and exclusive property of Yoink, and is copyrighted and licensed, not sold.

2.3 Copyright.

Yoink and the Documentation, which includes the Privacy Policy provided with Yoink, contain material that is protected by Australian Copyright Law and trade secret law, and by international treaty provisions. All rights not granted to you herein are expressly reserved by Yoink. You may not remove any proprietary notice of Yoink from any copy of the web site or the Documentation.

2.4 Restrictions.

You may not: 1) use or copy Yoink, or the Documentation except as provided in this Agreement; 2) modify or merge Yoink or the Documentation; 3) publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on Yoink, the Documentation or any part thereof, or otherwise make available, the Documentation, in whole or in part, to any other person or entity; 4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on Yoink or the Documentation; 6) reverse engineer, decompile, translate, adapt, or dissemble Yoink, nor shall you attempt to create the source code from the object code for Yoink; or 7) sublicense or assign the license for Yoink or the Documentation.

You must include subscribe/unsubscribe information provided by Yoink in each message you send using Yoink. You must also honor in a timely manner all unsubscribe requests sent directly to you from those who elected not to use Yoink’s automated subscribe/unsubscribe features, regardless of how harsh or unpleasant the unsubscribe request may be.

You may not use Yoink to:
a. send unsolicited email messages (a.k.a., "Spam") to anyone without their permission;
b. send unsolicited email messages to email addresses obtained from any purchased or harvested email lists in which the recipient did not expressly request to receive your email messages;
c. send email messages that harass, embarrass, defame, abuse, threaten, are libelous or slanderous, or otherwise violate the legal rights of any individual, group, or organization;
d. send email messages that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by Yoink;
e. send email that contains copyrighted material, including text, graphics (including trademarked material), software or other material protected by intellectual property law, for which you do not have authorization to reproduce, publish, or otherwise distribute;
f. send email that contains a computer virus or other code or files that could damage, harm, or otherwise disrupt the operation of anyone else's computer or storage device, or violate the privacy or security of any individual, group, or organization;
g. perform or promote illegal activities such as starting or forwarding chain letters, illegal contests or promotions, or any other activity that is illegal;
h. impersonate, use the name of (without expressed permission), or misrepresent any individual, group, or organization;
i. violate any applicable governmental laws or regulations or perform any activity that would cause Yoink to violate any law, statute or regulation.

2.5 Confidentiality.

You acknowledge that Yoink contains valuable trade secrets of Yoink and you agree to maintain the confidentiality of Yoink using at least the same degree of care you use with your own confidential information.

2.6 Enforcement.

You acknowledge that upon your breach of Sections 2.3 or 2.4, Yoink shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief and you further agree to waive any right or claim to which you may be entitled to immunity or exemption from liability. Yoink may also seek damages as a result of such breach.

2.7 Terms.

This Agreement is effective from the date you create an account on Yoink and shall continue for an indefinite period of time unless or until the account is terminated either by you or by Yoink. Yoink MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS LICENSE. YOU WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED. Yoink may terminate this Agreement immediately if: i) you fail to comply with the terms of this Agreement, ii) your account is dormant for a period of 90 consecutive days, iii) the Yoink service is discontinued, or iv) you have an overdue balance for any non-free services or products purchased on or through the Yoink website. If we do so, you must immediately stop using Yoink and associated Documentation, including sample documents provided within Yoink, and all copies you made of them.

You agree to reimburse Yoink for any fees incurred Yoink in collecting your payment, such as, but not limited to, bad check processing fees, credit card chargeback fees, and legal fees.

2.8. Risks.

Yoink may have errors and may produce unexpected results. You agree that any use of Yoink will be entirely at your own risk. You agree to backup data and take other appropriate measures to protect programs and data. You may not allow a third party to use your Yoink account and agree to indemnify and hold Yoink harmless from any damages or claims arising from such use by any third party.

2.9. "No Spam" and Privacy Policies

You may use Yoink only for "opt-in" lists, lists in which the recipient has voluntarily signed up to be on your list and has not requested to be unsubscribed. Any messages sent to users who did not request to be on your lists, whether purchased or otherwise obtained without the recipients consent, will be deemed as "Spam" and may result in termination of your account without refund and legal action, including the pursuit of damages, against you for violating this "No Spam" policy. You agree to indemnify and hold Yoink harmless from any damages and claims arising from any violation of this policy. You also agree to abide by and display a Privacy Policy or link to a Privacy Policy on your list signup page. You must either 1) use the Privacy Policy provided by Yoink or 2) use a Privacy Policy that contains the same provisions as the Privacy Policy that is provided by Yoink. Any violation of this Privacy Policy may result in termination of your account without refund and legal action against you. You agree to indemnify and hold Yoink harmless from any damages and claims arising from any violation of this policy.

2.10. Use of Templates or Samples

Use of templates or samples provided in Yoink in the future shall be subject to their own Use and Disclaimer notices which shall be displayed within those templates or samples.

3. DISCLAIMER OF WARRANTIES AND REMEDIES

3.1 Disclaimer of Warranty.

Yoink IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY LAW, Yoink DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Yoink DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN Yoink WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT Yoink WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN Yoink WILL BE CORRECTED, OR THAT Yoink IS COMPATIBLE WITH ANY PARTICULAR PLATFORM.

If you receive a claim that the use of Yoink infringes a patent, copyright or other intellectual property right, you must promptly notify Yoink in writing. Yoink, at its own expense and option, may (i) defend and settle such claim, (ii) procure you the right to use Yoink, (iii) modify or replace Yoink to avoid infringement; or (iv) refund the credit fees you paid, if applicable. These are your sole and exclusive remedies for any and all claims you may have against Yoink arising out of or in connection with Yoink, whether made or suffered by you or another person and whether based in contract or tort.

3.2 Limitations of Liability.

IN NO EVENT WILL Yoink BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES) ARISING OUT OF THE USE OF OR INABILITY TO USE YOINK, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF YOINK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

3.3 Indemnification

You, at your own expense, will indemnify, defend and hold harmless Yoink, its Affiliates and their employees, representatives, agents and affiliates, against any claim, suit, action, or other proceeding brought against Yoink or an Affiliate based on or arising from a claim that any content or material you or your organization distributed using Yoink or any use of Yoink by you or your organization that violates any of the Restrictions or Terms, such as violation of the Privacy Policy or using Yoink to send Spam, as set forth in this Agreement infringes in any manner any Intellectual Property Right of any third party or contains any material or information that is obscene, defamatory, libelous, slanderous, that violates any person's right of publicity, privacy or personality, or has otherwise resulted in any tort, injury, damage or harm to any person; provided, however, that in any such case: (i) Yoink provides you with prompt notice of any such claim; (ii) Yoink permits you to assume and control the defense of such action, with counsel chosen by you (who shall be reasonably acceptable to Yoink); and (iii) you do not enter into any settlement or compromise of any such claim without Yoink prior written consent, which consent shall not be unreasonably withheld. You agree to pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by Yoink or an Affiliate in connection with or arising from any such claim, suit, action or proceeding. It is understood and agreed that Yoink does not intend and will not be required to edit or review for accuracy or appropriateness any content or material that you or organization distribute using Yoink.

4.0 GENERAL

4.1. Rights in Data.

You hereby assign to Yoink all right, title, and interest (including ownership of copyright) in any suggestions or comments related to your use of Yoink or the Documentation you provide to Yoink. If Yoink requires it, you will sign an appropriate document to assign such rights.

4.2. Records.

You will ensure that anyone in your organization or affiliated entities who uses Yoink (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this Agreement.

4.3. Technical Support.

Yoink will not provide program services or technical support except as indicated on the Features list, which may change at any time.

5. MISCELLANEOUS

5.1 Miscellaneous.

This license and the rights granted under this Agreement may not be transferred or assigned by you or your company. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of New South Wales ("NSW"), Australia without regard to its principles of conflict of laws. The parties consent to the jurisdiction of the courts of the NSW and the federal courts located within the NSW, and any disputes shall be litigated solely in those courts. If any clause, sentence or other provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining clause, sentence, or other provisions shall remain in full force and effect. Neither of the parties shall be liable for failures due to causes beyond their control, including, but not limited to, acts of God, acts of government, fire, flood, strikes, or acts or omissions of carriers. You warrant that you will comply with all applicable laws and regulations that relate to the performance of this Agreement.

THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM AUSTRALIA OF YOINK OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF AUSTRALIA. YOU SHALL NOT EXPORT YOINK, THE DOCUMENTATION, OR INFORMATION ABOUT YOINK, AND THE DOCUMENTATION WITHOUT CONSENT OF YOINK AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.

Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. This Agreement constitutes the entire Agreement, supersedes all prior agreements, and changes are only effective when in writing and signed by both parties.