Email Marketing Services
Customer desires, and Supplier agrees to provide, email marketing tools (the “Email Services”) in connection with the Subscription Services based upon and subject to the terms and conditions set out below.
Acceptable Use & Legal Compliance:
Customer is solely responsible and liable for its use of the Email Services, including the accuracy, integrity, legality, reliability, and appropriateness of all messages transmitted using the Email Services, and any other acts and omissions. Customer will ensure that its use of the Email Services: (a) complies with all applicable laws, rules, and regulations; and (b) does not infringe the rights of other parties. Supplier and its affiliates shall not have any liability for Customer’s use of the Email Services. Customer represents that the information submitted for transmission via the Email Services is for lawful purposes only and that the transmission of messages or files is not in violation of any applicable laws, rules, and regulations, including without limitation encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability, or otherwise violate any local, provincial, state, national, or other law. Customer may not use the Email Services to upload, post, reproduce, or distribute, in any way, any information, software, or other material protected by another party’s proprietary rights without first obtaining a valid and subsisting permission. Customer agrees to comply with all applicable laws, rules, and regulations, including those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data. Violations of this Section will cause Customer’s accounts to be terminated, suspended, restricted, or otherwise limited. Supplier reserves the right to take any other action that it deems necessary or appropriate, in its sole discretion, if Supplier believes that Customer or an individual employee or representative of Customer who is provided access to the Email Services (“Users”) has violated or will violate this Section.
Unsolicited Email Marketing:
The transmission of unsolicited email is regulated by the CAN-SPAM Act (United States), the EU E-Privacy Directive (2002/58/EC) (Europe), the Spam Act 2003 (Cth) (Australia), and CASL (Canada), among other laws, rules, and regulations in these and other countries, states, provinces, and jurisdictions. Unsolicited email marketing in violation of such laws, rules, and regulations using the Email Services is prohibited and is a material violation of this Agreement. Customer warrants its compliance with laws, rules, and regulations regarding unsolicited email marketing.
Customer is fully responsible for the content of its transmissions through the Email Services. Customer agrees and acknowledges that neither Supplier nor its partners rents or sells lists of any kind. Supplier acts simply as a passive conduit for Customer and its Users to send and receive information of their own choosing. Customer shall not use Email Services to store any type of information that imposes independent legal or regulatory obligations upon Supplier or its partners, including but not limited to any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191). Supplier prohibits the use of Email Services to send messages that encourage, promote, provide, sell, or offer to sell products or content relating to illegal or fraudulent activities, or services related to the same. This includes without limitation illegal drugs; counterfeit or pirated goods; instructions on how to assemble or otherwise make weapons; and material that exploits children, encourages violence, or contains obscenity or sexually explicit content. This is not an exhaustive list and Supplier, in its sole discretion, may determine whether a particular message is prohibited. Supplier’s determination shall be final, binding, and conclusive. Any unlawful or prohibited content stored on Supplier’s or its partners’ servers may be deleted at any time without notice. Upon receipt of a complaint, Supplier reserves the right, but is not obligated, to review the content of any messages sent using Email Services for compliance with applicable laws, rules, and regulations, as well as this Section. Supplier does not: (i) represent or endorse the accuracy or reliability of any opinion, advice, or statement made through Email Services; (ii) assume liability for any harassing, offensive, or obscene/sexually explicit material distributed through Email Services by Customer or its Users, or any other parties using the accounts of the foregoing; (iii) assume any liability for material distributed through Email Services by Customer or its Users, or any other parties using the accounts of the foregoing, that violates any other party’s rights, including proprietary rights and rights of publicity or privacy; or (iv) assume liability for claims concerning unsolicited messages sent by Customer or its Users, or any other parties using the accounts of the foregoing, including without limitation claims under the CAN-SPAM Act, the EU E-Privacy Directive, the Spam Act, and CASL.
Unauthorized Access Prohibited:
Customer may not attempt to gain unauthorized access to any other accounts, computer systems or networks connected to any server of Supplier or its partners, or Email Services, through hacking, password mining, or any other means. Customer will not obstruct the identification procedures used by Services. Customer may not use Email Services in any manner that could damage, disable, overburden, or impair any server or a network connected to a server of Supplier or its partners, or interfere with any other party’s use and enjoyment of Email Services. Should Supplier deem Customer’s cumulative account activity, including but not limited to factors such as high send volume or large contact lists, to be detrimental to Supplier’s ability to make Email Services available to Customer or others, Supplier reserves the right to limit or entirely terminate the availability of these Services to Customer. Repeated uploading and removing of unique email addresses in an attempt to circumvent fee schedules and billing procedures plans is prohibited.
Customer or User Violations:
To the extent that Supplier suspects that Customer and/or its Users have violated, or will violate, any of the provisions in this Section, Customer agrees to work in good faith with Supplier and it partners to investigate and resolve any issues.
Customer will indemnify, defend, and hold harmless Supplier, its affiliates, its partners and its and their respective past, present, and future directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns, and related parties from and against any claims and proceedings directly or indirectly relating to: (a) the use of Email Services by Customer or its Users; (b) any negligence, misconduct, or breach of this Section by Customer or its Users, or any other party for whom Customer is responsible or liable under this Section; (c) the content and delivery of any of Customer’s and its Users’ messages using Email Services; or (d) the infringement of any trademark, copyright or other intellectual property rights by Customer or its Users.