Marigold’s Acceptable Use Policy

PLEASE READ THIS ACCEPTABLE USE POLICY (THE “AUP”) CAREFULLY BEFORE USING ANY SERVICES PROVIDED BY COMPANY. IF YOU DO NOT ACCEPT THIS AUP, YOU ARE NOT AUTHORIZED TO USE THE SERVICES.

This AUP (as modified from time to time by Company in its sole discretion) is a legal agreement between You (“Customer”, “You”, “Your”) and the entity listed on Your Ordering Document and deﬁnes the terms and conditions under which You are allowed to use the Services (as defined in the Agreement). This AUP forms a part of the Agreement and takes effect as soon as You begin using the Services.

By using the Services, You agree that the provision and receipt of Services are expressly conditioned on the acceptance of, and subject to the terms in this AUP. If You enter into this AUP or use the Services on behalf of an entity, You represent and warrant that You have the authority to accept this AUP on the entity’s behalf.

In order to use the Services, You must:

be at least 18 years old (or the age of majority in Your state of residence, if greater);
complete the registration process;
agree to this AUP; and
provide true, complete, and up to date contact information to Company.

By using the Services, You represent and warrant that You meet all the requirements listed above. Company may refuse to provide You with the Services, suspend or close Your account, and change eligibility requirements at any time in accordance with the terms of this AUP and the Agreement.

DEFINITIONS.In addition to terms defined elsewhere in this AUP, the definitions below will apply to capitalized words in this AUP. Capitalized words in this AUP that are not otherwise defined herein shall have the meaning ascribed in the Agreement.

1. “Agreement” means, as applicable, either the: 1) Services Agreement located at meetmarigold.com/services-agreement, as updated from time to time; or 2) a superseding written agreement for use of the Services executed by and between Company and Customer. Any references in the Agreement to the “Sailthru Industry Best Practices Notice” shall be to this AUP.
2. “Carrier Requirements” means the terms and conditions set by wireless carriers and other parties that provide SMS Services.
3. “Customer Property” or “Customer Properties” means the Customer website or online property, web, mobile or desktop application, in-venue property or other medium for broadcasting that is owned or controlled by the Customer, on which Customer may run a Promotion and/or publicly display or broadcast Social Media Content in accordance with the Agreement.
4. “Documentation” means the information provided by Company describing operation and use of the Service(s), by any means of delivery, whether at Customer’s request or otherwise, along with any other information provided to Company’s clients generally, and all such items as updated from time to time.
5. “Email Services” means Services delivered in connection with email and email-related products.
6. “Experiences Services” means Services delivered in connection with experiences and experiences-related products.
7. “Generative AI Services” means functionality included in the Services that use algorithms to produce content, including, text, imagery, audio, or computer source code.
8. “Liveclicker Services” means Services delivered in connection with Liveclicker and Liveclicker-related products.
9. “Loyalty Services” means Services delivered in connection with loyalty and loyalty-related products.
10. “Malicious Code” means harmful or malicious code, files, scripts, agents, programs, or the like designed or intended to have, or capable of performing or facilitating, any of the following functions: disrupting, disabling, harming, corrupting, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system, database, or network (or other device on which such code is stored or installed), including but not limited to viruses, worms, time bombs, and Trojan horses.
11. “Promotion” means the promotion that the Customer wishes to advertise using the Experiences Services.
12. “Request” means an incoming web connection that asks the Liveclicker Services to deliver the Liveclicker elements.
13. “Social Media Content” means any Contact-generated content submitted to, posted or uploaded by Contacts directly to third party services (e.g., a tweet on Twitter) and made available to Customer by Company in connection with the Experiences Service, or any other content provided by a third-party service provider (e.g., Twitter) to Customer (e.g., relevant data analytics, enrichments or other data linked to any user-generated content).
14. “SMS Services” means the provision of the following Services by Company: designation of short codes or long codes for use with Customer’s messaging campaigns; the collection of SMS messages from Customer as agreed to by the parties; the transmission of such SMS messages to mobile subscribers who either (1) opt-in electronically to SMS Services through Customer; or (2) are identified by Customer as individuals who have opted in to SMS Services through Customer.

CUSTOMER AND USER OBLIGATIONS.
1. Customer agrees to, and where applicable, shall ensure that Users agree to:
  1. keep contact information for Customer’s Account updated and promptly respond to queries from Company;
  2. use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Company promptly of any such unauthorized access or use; and
  3. be responsible for ensuring that User’s computer systems, technology, or other similar items used in connection with the Services do not interfere with or disrupt the integrity or performance of the Services.

1. Security Requirements. Customer represents and warrants that while using the Services, Customer will:
  1. use commercially reasonable security measures to protect any Customer Data transmitted to the Services, including, but not limited to, encrypting any Customer Data transmitted to the Services; and
  2. cooperate with Company’s reasonable investigations of service outages, security problems, and/or any suspected breach of the Services, any Ordering Documents, and/or this AUP, the Agreement or any of its incorporated documents.

1. Customer Cooperation. Customer represents and warrants that while using the Services, Customer will immediately act upon Company’s reasonable requests to remove and/or adapt Customer Content and/or Customer’s use of the Services (e.g., to avoid hindrance of the Services’ performance to other customers). Customer shall, upon request, or as needed throughout the term:
  1. respond to any third-party complaints (including, but not limited to, the complaints of any Contacts or providers of any Third Party Services);
  2. promptly provide any applicable information documenting the relationship or consent of the involved parties; and
  3. otherwise reasonably cooperate in mitigating the impact of any such complaint.

ACCESS LIMITS. If the Ordering Document specifies the number of Users, then the Services may be accessed by no more than the specified number of Users set forth therein. User credentials and access cannot be shared or used by more than one User; provided, however, User credentials may be reassigned to replace former User(s) who no longer need access to the Services. Customer shall not use the Services: (a) in excess of the limitations set forth in the Documentation; and/or (b) in a manner adversely affecting the Services’ usability for Company and/or its Affiliates, including for Company’s and/or its Affiliates other customers.

RESTRICTIONS ON USE.
1. Except where the following restrictions are prohibited by Law, Customer shall not, and shall not permit any Users or third parties to, directly or indirectly:
  1. inaccurately represent its organization or impersonate any other person or organization, whether actual or fictitious;
  2. access or use the Services except as permitted in the Agreement and this AUP;
  3. host images or content on Company servers or through the Services for any purpose other than for the purpose of using the Services as permitted in the Agreement and this AUP;
  4. use the Services to store or transmit Malicious Code;
  5. interfere with or disrupt the integrity or performance of the Services or third party data contained therein;
  6. use the Services in any other manner that puts an excessive burden on the bandwidth of the Services;
  7. attempt to gain unauthorized access to the Services or their related systems or networks by any means or methods, nor access the Services outside the scope of the Services as ordered via the applicable Order Form
  8. attempt to probe, scan, or test the vulnerability of the Services or perform any penetration testing against or on the Services;
  9. use the Services to encourage or facilitate any illegal activities; or violate any Laws, including but not limited to those related to e-commerce, infringement, defamation or privacy; or
  10. use the Services to compete with the Services or Company in any manner.

1. Intellectual Property Restrictions. Customer shall not (and shall not permit any third party to):
  1. except as expressly permitted in writing by Company, sell, resell, rent, or lease the Services or any part of the Services;
  2. remove or alter trademark, logo, copyright, or other proprietary notices or labels from the Email Services;
  3. copy, frame, or mirror any part or content of the Services, other than in connection with Customer’s permitted use of the Services for Customer’s own internal business purposes,
  4. create derivative works based on the Services;
  5. reverse engineer, reverse assemble, decompile, or attempt to discover or extract the source code, object code, underlying structure, or algorithms, found at or through the Services or any software, documentation, or data related to the Services; or
  6. access the Services for the purposes of (a) building a competitive product or service; (b) copying or reproducing any features, functions or graphics of the Services; or (c) benchmarking or conducting any activities that are competitive with the Services or Company. No rights are granted to Customer other than as expressly set forth in the Agreement.

1. Customer Content. Customer acknowledges and agrees that Customer is responsible for the nature and content of all of the Customer Content, including but not limited to, the accuracy, quality, integrity and legality of the Customer Content and the means by which Customer and its Users acquire Customer Content. Except where the following restrictions are prohibited by Law, Customer shall not, and shall not permit any Users or third parties to, directly or indirectly, use the Services to process, store, transmit, link to, display, or solicit content:
  1. about or relating to: (a) individuals under 18 years of age; and/or (b) pornography, nudity, adult novelty items, or escort services; financial information, stock trading, FOREX, mortgages or other loans, insurance, debt collection, credit repair, offers to make money online or work from home businesses, payday lender related content, the production, sale, exchange, storage, or marketing of cryptocurrencies, initial coin offerings, or penny stocks; gambling related content (including, but not limited to, poker, casino games, horse and dog racing, and betting on college and professional sporting events); horoscopes, dating services, lead generation services, affiliate or multi-level marketing, or Ponzi schemes; DJ/nightclub or event/club promotions/party lists; the selling of personal data of any kind, list brokers or list rental services; recruitment or job-seeking services; firearms, bombs, grenades, or other weapons; pharmaceuticals, drugs (illegal or otherwise), diet advice, nutritional advice, or supplements; illegal goods or software (including but not limited to pirated computer programs or viruses); violence against any governments, organizations, groups, or individuals or which provides instruction, information or assistance in causing or carrying out such violence;
  2. except as approved by Company in writing: loans, insurance, horoscopes, dating services, recruitment or job-seeking services;
  3. except in connection with the Loyalty Services, the Experiences Services, or as otherwise approved by Company in writing: daily deals, coupons, or paid surveys;
  4. or any other content that Company deems inappropriate in Company’s sole discretion;
  5. that is defamatory, libelous, offensive (including hate speech, blatant expressions of bigotry, prejudice, racism, hatred, or excessive profanity), obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, false, misleading, or otherwise objectionable (as determined by Company in Company’s sole discretion);
  6. that materially violates: 1)industry standards, policies and applicable guidelines published by generally recognized industry associations; and/or, (2) carrier guidelines and usage requirements, where applicable;
  7. that violates or infringes: a) Company’s reasonable recommendations and/or instructions; b) any Laws; and/or c) the rights of a third party (including a third party’s privacy and/or intellectual property rights) or such third party’s applicable terms of use.

1. Sensitive PII. Sensitive PII. Customer understands and acknowledges that the Services are not configured to process, receive, and/or store Sensitive PII. “Sensitive PII” means 1) protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); 2) “nonpublic personal information”, as defined under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); 3) data on any minor under the age of thirteen, including any such data that would be subject to the Children Online Privacy Protection Act (“COPPA”); 4) card holder data under the Payment Card Industry Data Security Standard; 5) personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person’s sex life or sexual orientation (the “special categories of personal data” identified in Article 9 of GDPR); or 6) social security numbers, driver’s license or state identification numbers or other government related identifiers, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, or criminal records, or insurance numbers, passport numbers, or other highly sensitive personally identifiable information. As such, Customer agrees not to, and not to permit Users to transmit, request, provide Company with access to, submit, store, or include any Sensitive PII through the Services. Customer agrees that Company may terminate this Agreement immediately, without refund, if Customer is in violation of this clause.

COMPANY’S RIGHTS.
1. Monitoring. Company reserves the right to inspect and monitor Customer’s Account and Customer Content at any time, without notice, to ensure compliance with the terms of this AUP and the Agreement.In connection with the foregoing, Customer agrees to promptly provide records and/or other information requested by Company. Company reserves the right to limit Customer’s access to Customer’s Account at any time if Company believes, in its sole discretion, that Customer or its Users have violated or may violate any terms set forth in this AUP or the Agreement.

1. Disclosure. Company shall have the right to disclose communications between (i) Customer and (ii) its email recipients and other users of its services to the extent required by Law, including, without limitation as required by legal process or court order.
2. Right to Remove, Suspend, Terminate. Company may, in its sole discretion, remove any Customer Content, suspend, or terminate Customer’s use of the Services for any actual or alleged breach of this AUP or the Agreement at any time. For clarity, removal, suspension, or termination pursuant to this clause will not terminate Customer’s obligation to pay any fees owed to Company.

EMAIL SERVICES TERMS.
1. Customer agrees to, and where applicable, shall ensure that Users agree to use the Email Services in compliance with Laws, the Agreement, this AUP, and the Anti-Spam Policy (as modified from time to time by Company in its sole discretion) that is available at meetmarigold.com/anti-spam-policy/.

EXPERIENCES SERVICES TERMS
1. Applicability. Section 7 (Experiences Services Terms) of this AUP shall only apply to the use of the Experiences Services by Customer.
2. Customer Responsibilities. In addition to the terms of the Agreement, Customer is responsible for moderating and controlling the Social Media Content displayed as part of the Experiences Services. If Customer elects to run a Promotion or other campaign (e.g., contest, quiz, or sweepstakes), Promotion administration and compliance with Laws are the sole responsibility of Customer. Company is not responsible for the Promotion content, rules, administration, or ensuring that the Promotion complies with Laws.
3. Contact Interactions. The Experiences Services may contain features that require a Contact to interact with the Services through one or more Third Party Services. Any use of Third Party Services, and any exchange of information between a Contact and any Third Party Services, is directly between the Contact and the applicable third party.Any interaction between Customer and Contact(s) through the Experiences Services is directly between Customer and the Contact, and Company will have no liability with regard thereto.
4. End User Terms. Customer will disclose to its end users how Customer or Company will use any end user content uploaded to Experiences Services. Customer will ensure that its end users grant all necessary licenses for Company to provide the Services. If Customer requires or invites an end user to submit personal information to the Experiences Services, Customer will provide its end users with a privacy policy and terms of use that provide such end user(s) adequate and sufficient notice and obtain any required consents, for the collection, use, processing, transfer, and disclosure of the end user’s personal information.
5. Right to Temporarily Disable. Company may temporarily disable all or part of the Experiences Services (including any API Connector/Integration) if Company determines that the Experiences Services are or will be subject to abusive, malicious, or harmful behavior.

SMS SERVICES TERMS
1. Applicability. Section 8 (SMS Services Terms) of this AUP shall only apply to the use of the SMS Services by Customer.
2. Consent. Customer shall use SMS Services only to send SMS messages to mobile subscribers (“Mobile Subscribers”) that have consented, in accordance with Laws, to receive such messages and that have not opted out from receipt of such messages. Customer agrees that it will immediately provide verification of consent by any Mobile Subscriber or other party receiving SMS messages via the SMS Services to Company upon Company’s request. If Customer fails to provide verification of consent, Company reserves the right to suspend the SMS Services until Customer provides such verification. If Customer fails to provide verification within thirty days of suspension, Company reserves the right to terminate Customer’s access to the SMS Services without refund. Termination pursuant to the foregoing shall not alleviate Customer’s obligation to pay fees for the full Order Term.
3. Restriction on use of SMS Services. Customer agrees that it may not, and may not encourage or allow any Users to, directly or indirectly:
  1. unless otherwise agreed by Company in writing, transfer, resell, lease, license or otherwise make the SMS Services available to third parties or offer them on a standalone basis.
  2. change Customer’s use of a short code from the use stated in Customer’s application to the carrier for approval of the short code without first obtaining an amendment to Customer’s application or re-applying to the carrier for approval of the short code under the new use. Any revocation of a short code or reject of a short code application by a wireless carrier will not entitle Customer to a refund;
  3. use the SMS Services in a way that materially violates the carrier guidelines and usage requirements;
  4. use the SMS Services to access or allow access to emergency services;
  5. use the SMS Services in any manner that materially violates the: (a) industry standards, policies and applicable regional guidelines published by generally recognized industry associations or industry bodies (e.g., the CTIA (Cellular Telecommunications Industry Association), or the Mobile Marketing Association);
  6. use the SMS Services in connection with unsolicited or harassing messages (commercial or otherwise), including unsolicited or unwanted phone calls, SMS or text messages, voice mail, or faxes; or
  7. use the SMS Services to harvest or otherwise collect information about individuals, including email addresses or phone numbers, without their explicit consent or under false pretenses
4. Customer Content. Customer shall be solely responsible for any content submitted to Company and/or transmitted through the SMS Services and delivered to Mobile Subscribers and will ensure that such Customer Content: a) is appropriate for the Mobile Subscriber; b) does not otherwise violate any applicable Laws; c) is not subject to any cause of action for defamation or invasion of privacy; and d) is in compliance with this AUP, and the Agreement. Customer shall obtain and maintain all Intellectual Property Rights necessary to transmit any Customer Content to its Mobile Subscribers. Company assumes and shall have no liability for any Customer Content or any SMS messages transmitted by Customer in violation of Laws.
5. Compliance
  1. Carrier Requirements. Customer acknowledges that transmission of SMS messages is subject to Carrier Requirements and that the Carrier Requirements are subject to change. Customer agrees to comply with any Carrier Requirements. Customer acknowledges and agrees that each carrier reserves the right to suspend SMS Services for any Customer and/or User at any time, and that any suspension of the SMS Services by a carrier shall not result in any liability to the Company nor alleviate Customer’s obligation to pay the fees to Company for the full Order Term.
  2. Compliance with Laws. SMS Services are subject to various Laws depending on the nature of Customer’s text messaging campaign, the location from where Customer is sending text messages, and the location of the Mobile Subscriber. Customer agrees to comply with all Laws, applicable industry standards, or Carrier Requirements related to its use of the SMS Services, including without limitation, Laws and standards which require (i) specific information be included wherever the short code or long code is advertised, (ii) that Mobile Subscribers are invited to sign up for short code or long code messages, or (iii) complying with any registration requirements. Customer acknowledges that Laws, industry standards, or Carrier Requirements may change from time to time, and Customer agrees that it is responsible for ensuring continued compliance with the foregoing. Customer should consult with its legal counsel to ensure that its text messaging campaign conforms to all applicable legal compliance requirements.
  3. Porting of Numbers, Long Codes, and Short Codes. Unless otherwise required by Laws or Carrier Requirements, Company, in its sole discretion, reserves the right to refuse to (i) port any phone number, long code, or short code into the Services; or (ii) port any phone number, long code, or shared short code out of the Services.
  4. Privacy Policy. In addition to any obligations under this AUP and the Agreement, Customer warrants that it will comply with all applicable privacy requirements in its use of the SMS Services, including, where applicable, posting and complying with a privacy policy.

GENERATIVE AI SERVICES TERMS
1. Applicability. Section 9 (Generative AI Terms) of this AUP shall only apply to the use of the Generative AI Services by Customer.
2. Restrictions on use of Generative AI Services. Customer agrees that it may not, and may not encourage or allow any Users to, directly or indirectly use Generative AI Services for the following:
  1. child sexual abuse material or any content that exploits or harms children;
  2. activity that has high risk of physical harm;
  3. political campaigning or lobbying;
  4. engaging in the unauthorized practice of law, or offering tailored legal advice without a qualified
  5. person reviewing the information;
  6. offering tailored financial advice without a qualified person reviewing the information;
  7. providing medical advice or providing instruction on how to cure or treat a health condition; or
  8. high risk government decision-making.
3. Customer Content. Customer shall be solely responsible for any content created using the Generative AI Services and will ensure that any such Customer Content: a) is accurate and appropriate for Customer’s use; b) does not otherwise violate any applicable Laws; c) is not subject to any cause of action for defamation or invasion of privacy; and d) is in compliance with this AUP, and the Agreement. Customer shall obtain, maintain, and be fully responsible for any and all Intellectual Property Rights necessary to transmit any Customer Content to its Subscribers. Company assumes and shall have no liability for Customer’s use of Generative AI Services.
4. Personal Data. Customer is prohibited from inputting or uploading any personal data (any information that identifies an individual (directly or indirectly)) into the Generative AI Services.
5. Output.
  1. Customer Responsibilities. Customer is solely responsible for the creation and use of any Output. Company disclaims all warranties, express or implied, regarding the Output, including any warranties that the Output will not violate the rights of a third party or any applicable law.
  2. Suitability of Output. Use of the Generative AI Services may produce Output that is unexpected or unsuitable for some Customers. The Output may not be unique and other users of the Generative AI Services may generate the same or similar Output.
6. Disclaimers. Customer may choose to use Generative AI Services at Customer’s sole discretion. Company will have no liability or indemnification obligations for any harm or damage arising out of or in connection with Generative AI Services, including Customer’s access thereto or use thereof.

LIVECLICKER SERVICES TERMS
1. Applicability. Section 10 (Liveclicker Services Terms) of this AUP shall only apply to the use of the Liveclicker Services by Customer.

1. Right to Temporarily Disable.Company may temporarily disable all or part of the Liveclicker Services (including any API Connector/Integration) if Company determines that the Liveclicker Services are or will be subject to Excessive Use, or abusive, malicious, or harmful behavior. For purposes of this section, Excessive Use shall mean greater than 100 million requests per month.

Last Updated: May 1, 2024