PLEASE READ THIS TERMS OF USE AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES AVAILABLE AT CAMPAIGNMONITOR.COM (the “Site”) OR OFFERED BY OR ON BEHALF OF CAMPAIGN MONITOR PTY LTD OR ITS AFFILIATES. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.

This Terms of Use Agreement (the "Agreement", as modified from time to time in accordance with the terms of this Agreement) is a legal agreement between You (“Customer”, “You”, “Your”) and Campaign Monitor Pty Ltd. (“Campaign Monitor” or “Company”) (each a “party” and collectively the “parties”) and defines the terms and conditions under which You are allowed to use the Services (as defined below).

This Agreement takes effect on the earliest of You: 1) creating an account for use of the Services while being presented a link to this Agreement; 2) executing or electronically accepting an Ordering Document referencing this Agreement; or 3) using the Services (the earliest of the foregoing being the “Effective Date”). If You enter into this Agreement or acquire the Services on behalf of an entity, You represent and warrant that You have the authority to accept this Agreement on the entity's behalf.

In order to use the Services, You must:

1. be at least 18 years old;
2. complete the registration process;
3. agree to this Agreement; and
4. provide true, complete, and up to date contact information.

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 Agreement.

1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:
   1. “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of that party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity or the right to receive more than 50% of the profits or earning of the entity.
   2. “API Connector/Integration” means any Web-based, on-demand and/or downloadable software that permits the connection and/or interoperation of a third party service/application with the Services.
   3. “Beta Features” mean services and/or features available to Users for use which are still in their beta stage and have not been fully tested.
   4. “Customer’s Account” means the Web-based account provided by Company to Customer that enables Users to use the Subscription Services which is accessible to Users via usernames and passwords created and/or assigned by Customer.
   5. “Customer Content” means, excluding the Services, any and all information, data, text, software, photographs, graphics, video, messages, tags and/or other materials and content, that Users post, upload, share, submit, store or otherwise provide or make available through or using the Services.
   6. “Custom Works” means, any custom designs, projects, or other works, including Deliverables, created by Company for, or on behalf of, Customer by Company; provided Custom Works specifically exclude the Services, Generic Tools, and any Pre-Existing IP.
   7. “Deliverables” means any outputs specifically defined in an SOW and characterized as “Deliverables” that will be provided by Company to Customer, provided Deliverables expressly exclude the Services and any Pre-Existing IP.
   8. “Generic Tools” means coding, programming techniques, designing techniques, architecture, trade secrets, methodology, APIs, functions, applications, knowledge, experience, skills, templates, other know-how and related Intellectual Property Company uses to provide the Services.
   9. “Intellectual Property Rights” means any and all patents, inventions, copyrights, moral rights, trademarks, domain names, trade secrets, know-how, software, and any other form of intellectual property and/or proprietary rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
   10. “Law(s)” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any governmental authority, including, but not limited to, where applicable, the Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data (the, “General Data Protection Regulation” or “GDPR") and the Data Protection Act 2018 (“UK DPA”). Where relevant to the Customer’s or User’s obligations, when assessing “applicability”, Customer and User shall take into account the Governing Law in this Agreement and the Laws relating to both the jurisdiction where User is using the Services and the jurisdiction where the Contact resides.
   11. “Order Term” means the period specified in an Ordering Document (including any renewals of the same) during which Users will have access to the Services.
   12. “Ordering Document” means any form provided by Company (including an electronic form or SOW), either executed by the parties or agreed to by the Customer via the Site, that sets out the commercial terms of Customer’s purchase of the Services. All Ordering Documents will be deemed to incorporate, and will be subject to and governed by, this Agreement.
   13. “Pre-existing IP” means any Intellectual Property Rights in materials and/or information (including, but not limited to, algorithms, methods, forms, software, software components in source or object code form) that is owned by, licensed to, or in the possession of Company either: 1) on or prior to the creation of the Custom Work; or 2) after the commencement of the Custom Work but not specifically created as a part of the Custom Work, including any enhancements, improvements, and modifications to any of the foregoing in 1) or 2), whether created prior to or after the Effective Date. Notwithstanding the foregoing, Pre-Existing IP expressly excludes the content, logos, graphics, photos, images or text of any type provided by Customer and included in Custom Works at Customer’s request.
   14. “Privacy Notice” means the Privacy Notice available at https://www.campaignmonitor.com/policies/#privacy-policy, as updated from time to time.
   15. “Professional Services” means services, other than the Software, provided by Company staff including, but not limited to, Specialized Support Services, onboarding services, support services, provision and/or creation of any Custom Works, and /or Customer-specific customizations.
   16. “Services” means the Software, Professional Services, Pre-Existing IP, Statistical Data, products, services, applications, tools and other resources provided or made available by Company or accessible at the Site (or other website(s) owned by Company), including any applicable support services, manuals, documentation and related material, and all related service names, logos, design marks, slogans, and all other material comprising the Software, Professional Services, and Pre-Existing IP, but excluding any Customer Content and Custom Works.
   17. “Software” means the Subscription Services, Site, and any software provided by Company and/or its Subcontractors, including, but not limited to, software development kits, other software code supplied by Company to Customer that allows for integration of the Services into Customer’s websites or mobile applications, and any related updates or modifications provided by Company from time to time.
   18. “Specialized Support Services” means (i) projects involving excessive or non-standard involvement by Company staff as determined by Company in its sole discretion; and/or (ii) projects requiring functionality that is not available via the User interface.
   19. “Statement of Work” or “SOW” means a document entitled “SOW” or “Statement of Work” that: 1) expressly incorporates this Agreement; 2) is issued or provided by Company; and 3) executed by the parties.
   20. “Statistical Data” means aggregated and anonymized statistical and performance information based on and/or related to Customer’s use of the Services, which does not contain any personally identifying information and is compiled using a sample size large enough to ensure the underlying data cannot be attributed to Customer.
   21. “Sub-Account” means an account within Customer’s Account.
   22. “Subcontractor” means a service provider engaged by Company that provides a part of the Services.
   23. “Subscriber” or “Contact” (used interchangeably in this Agreement and the incorporated documents) means, other than Users, any identified or identifiable natural person: 1) whose information is stored, transmitted, or otherwise ‘processed’ (as defined by the GDPR) via the Services by Customer; and/or 2) to whom Customer sends, transmits, or otherwise engages with via the Services.
   24. “Subscription Plan” means the subscription type (including applicable volume limits) chosen by the Customer on an Ordering Document which sets out the base set of Services ordered by the Customer. Different Subscription Plans have different Services associated with them.
   25. “Subscription Service” means the web-based application(s) available to the Customer via the Site.
   26. “Third Party Services” means any software, products, tools, applications, or services that may be used in connection with the Services that are not owned by Company or its Affiliates.
   27. “User” means any person, other than Company employees or agents engaged in providing Professional Services to Customer, accessing and/or using the Services through Customer’s Account (including through a Sub-Account).
2. AGREEMENT STRUCTURE
   1. Other Incorporated Documents. This Agreement, together with its incorporated documents and any Ordering Documents and/or SOWs referencing this Agreement, constitutes the entire agreement between Customer and Company regarding the Services and supersedes all prior and contemporaneous agreements, representations, and understandings, whether written or oral, concerning its subject matter and governs Company’s provision of and Customer’s receipt of the Services. Each Ordering Document hereby incorporates the Acceptable Use Policy available at https://www.campaignmonitor.com/policies/#acceptable-use-policy extant upon the start date of such Ordering Document (hereinafter, “AUP”).
   2. Order of Precedence. In the event of any conflict between the terms of this Agreement and the other incorporated documents, the conflict will be resolved in favor of the Agreement unless: 1) the conflicting term is expressly stated to vary the conflicting provision of the Agreement; 2) the Agreement specifically provides that another document may vary the applicable term of the Agreement; or 3) the parties expressly agree in writing otherwise.
   3. Agreement Modifications. This Agreement was last modified on the date listed at the end of this Agreement (“Last Modified Date”). Company may make modifications to this Agreement by posting a revised Agreement on the Site and/or by sending an email to the last email address provided by Customer to Company. Customer acknowledges and agrees that use of the Services by Customer after the Last Modified Date constitutes Customer’s acceptance of the modified terms, that such modified terms will become effective on the Last Modified Date, and that it is Customer’s responsibility to check this website regularly for modifications to this Agreement. Any term or condition in any purchase order or other document provided by Customer to Company will be null, void, and of no legal force or effect unless it is made pursuant to an amendment to this Agreement and signed by an authorized representative of the Company.
3. SERVICES
   1. Access. On or as soon as reasonably practicable after the Effective Date and subject to Customer’s payment of the fees set forth in the Ordering Document, Company will provide Customer with access to Software ordered pursuant to such Ordering Document.
   2. Prerequisite to Use of Software. Customer is responsible for obtaining all hardware, software and services necessary to access the Software.
   3. Right to Access and Use Software. Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Software ordered pursuant to an Ordering Document during the Order Term, solely for Customer’s internal business purposes (unless otherwise expressly agreed by Company) and in accordance with the limitations (if any) set forth in the Ordering Document, the AUP and this Agreement. This Agreement is not intended to nor does it provide any license rights to the Software. Company is not obligated to provide, and Customer acquires no right of any kind with respect to, any source code for the Software.
   4. Restrictions. Except as otherwise expressly permitted by this Agreement, Customer is not authorized to resell, assign, sublicense, transfer, pledge, lease, rent, copy, modify, re-package (unless otherwise expressly agreed by Company), reverse-engineer or disassemble the Services or share its rights under this Agreement. Customer’s use of the Services confers no title or ownership in the Services and is not a sale of any rights in the Services. All ownership rights to the Services remain in Company or its third party suppliers, as applicable.
   5. Modification of the Services. Subject to Section 11.D, Company, in its sole discretion, reserves the right to modify the Services, or any features of the Services at any time and for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness. Such modifications, when delivered, shall become part of the Services and shall be subject to all of the terms of this Agreement.
   6. Beta Features. From time to time, Company may make Beta Features available to Customer. Customer may choose to use such Beta Features in Customer’s sole discretion. Company may modify or discontinue Beta Features at any time in Company’s sole discretion. Customer understands and agrees that Company may never make Beta Features generally available. Company will have no liability for any harm or damage arising out of or in connection with a Beta Feature, including, without limitation, Customer’s access thereto or use thereof.
   7. Free Trials. Company may make some or all of the Services available on a limited, non-exclusive, non-transferable, revocable, free trial basis for evaluation purposes only. COMPANY MAY TERMINATE FREE TRIAL ACCOUNTS OR ANY FEATURES OF THE SERVICES OFFERED PURSUANT TO A FREE TRIAL AT ANY TIME IN COMPANY’S SOLE DISCRETION WITH NO OBLIGATIONS TO CUSTOMER OR THE USER OF SUCH ACCOUNT.
   8. Professional Services Terms.
      1. Requesting Professional Services. Only named Users in Customer's Account (a User using an email with their name), may request Professional Services. No generic or role-based email aliases may be used to request Professional Services. If an individual using a named User's credentials requests Professional Services, Company shall treat that individual as the named User and provide them with Professional Services. Specialized Support Services are only available to Customers with: 1) a minimum of Twelve Thousand Dollars ($12,000) in annual spend with Company, or 2) a mutually executed Ordering Document with Company with a minimum term length of 12-months. Specialized Support Services will always require, at minimum: a) an email from the Company with a description of the Specialized Support Services to be provided to Customer; and subsequently, b) an email from the Customer confirming the Specialized Support Services.
      2. Customer Cooperation. Customer acknowledges that its timely provision of responses, assistance, cooperation, complete and accurate information and data from its officers, agents, and employees, and suitably configured computer products (collectively, “Cooperation”) are essential to the performance of any Professional Services, and that Company will not be liable for any deficiency in performing Professional Services if such deficiency results from Customer’s failure to provide full Cooperation.
      3. Custom Works. In the course of providing the Professional Services, Company may create Custom Works for Customer. Other than any Pre-Existing IP incorporated, embedded, or integrated into the Custom Works, Customer owns all right title and interest in the Custom Works. Company hereby grants to Customer a worldwide, non-exclusive license to use the Pre-Existing IP solely in conjunction with, and to the extent incorporated in an unmodified version of the Custom Works. Customer shall not, and shall not allow any employee or third party to copy, reverse-engineer, modify, improve, create derivative works of or use the Pre-Existing IP in any way outside of the Custom Works as delivered by Company to Customer. In the event that any Customer employee or third party on Customer’s behalf or at Customer’s request or direction modifies, improves or creates derivative works of the Pre-Existing IP, whether or not in violation of this Agreement, Customer shall cause all right, title and interest in and to such modifications, improvements and/or derivative works to be assigned to Company and will sign (or cause to be signed) all further documents necessary to effect such assignment.
      4. Generic Tools. Company may use its Generic Tools when providing the Services to Customer. Company and/or its Subcontractors own all rights, title, and interests in and to such Generic Tools. For clarity, any API Connector/Integrations built by, for, or on behalf Company are hereby expressly considered Generic Tools and at no point will any API Connector/Integrations be considered Custom Works or Deliverables.
      5. Customer Definition of Requirements. Where Customer engages Company to provide any Custom Works, Customer represents and warrants that Custom Works, as developed in accordance with the instructions and requests of Customer, do not infringe the Intellectual Property Rights or any other rights of any third party. Customer is solely responsible for review of any Custom Works to ensure they do not violate or infringe a third party’s privacy rights, Intellectual Property Rights, or any other rights. Customer acknowledges and agrees that the provision of the Professional Services does not constitute any assumption of risk related to the Custom Works by Company.
      6. Expenses. Customer shall pay for all travel expenses, fees, and out of pocket expenses incurred by Company in providing the Services, provided that Customer approves such expenses in advance in writing.
   9. Reselling the Services.
      1. Permission to Resell. Company may, in its absolute discretion and subject to the terms and conditions of this Agreement, allow Customer to resell the Services to Customer’s end clients (“End Clients”), which may be on a “white-label” basis if Customer uses the “Creative Agency” (or reseller) version of the Services. Notwithstanding anything to the contrary herein, Company may, in its sole discretion, revoke Customer’s permission to resell the Services at any time.
      2. End Client Payment Terms.
         1. For Payments to Customer. If Customer elects to have the End Client pay fees to Customer, Customer may determine, at its discretion, the fees to be charged to End Client for the Services and for any related services (such as account setup, creation of templates, etc.); provided, Customer agrees to pay to Company the standard fees Company charges for the applicable Services, irrespective of the fees Customer charges to its End Client. Customer agrees that End Client’s failure to pay fees to Customer shall have no bearing on Customer’s obligation to pay Company its standard fees for End Client’s use of the Services. Customer acknowledges and agrees that Customer bears all risk of nonpayment by End Clients and is solely responsible for all costs and expenses associated with collecting payment from its End Clients.
         2. For Payments Directly to Company. If Customer elects to have the End Client pay fees directly to Company, Customer agrees that Company is entitled to deduct the standard fees Company charges for the applicable Services and remit the balance to Customer only after receipt of payment by End Client. In addition, Customer acknowledges and agrees that in the event of any disputes between Customer and End Client regarding fees, Company will be the final arbitrator of any such fee-related disputes. If an End Client fails to pay Company for fees incurred by such End Client, Customer shall be responsible for payment to Company of applicable fees within 30 days of email or other written notice to Customer.
         3. Refunds to End Client. If Company is required to refund any fees to End Client for any reason, Customer shall reimburse Company the full amount that Customer received for resale to that End Client.
      3. Conditions of Resale. Customer acknowledges and agrees that Customer’s resale of the Services to End Clients is subject to the following conditions:
         1. Customer shall promptly respond to queries from End Client and provide all customer relationship management to its End Clients, including first level support services in relation to the Services.
         2. Customer shall not represent itself as an agent or employee of Company nor make any representations regarding Company, on Company’s behalf, or about any of the Services.
         3. Customer shall enter into binding contractual relationships with each End Client (“End Client Agreements”), and enforce implementation of such End Client Agreements, that:
            1. requires End Client to comply with Laws, including those related to data privacy and intellectual property;
            2. require each End Client to provide a privacy notice to their subscribers that complies with Laws and is no less onerous than Customer’s obligations to its Contacts and email recipients under this Agreement;
            3. requires the End Client to comply with terms substantially similar to the AUP, and Sections 4 (Third party Services), 6 (Intellectual Property), 7 (Confidentiality, Security, & Privacy), and 8 (Warranties) of this Agreement and further Customer acknowledges and agrees that Customer shall be liable for any failure by End Client to abide by the foregoing;
            4. are at least as protective of Company as those in this Agreement, specifically as they relate to the 7 (Confidentiality, Security & Privacy), 9 (Disclaimers), 10.A (Customer Indemnity), 11 (Limitation of Liability), 13 (General).
         4. Company shall have the right to:
            1. provide an acceptable use policy to End Clients;
            2. enforce the terms of this Agreement, including, without limitation, Company’s right to suspend or terminate access to the Service at any time, irrespective of any impact on Customer or End Clients and without liability to Customer or End Clients.
            3. audit Customer’s compliance with this Section 3.I. Customer agrees to promptly provide Company with its End Client Agreements and other documentation reasonably requested to Company.
      4. Disputes Within Customer’s Account. Customer agrees to resolve all disputes with its End Clients. In the event an End Client contacts Company for access to a Sub-Account or for retrieval of Customer Content in such Sub-Account, Company may, but is not obligated to, notify an account administrator via email and require Customer to address the End Client’s request. Customer understands and agrees that failure to timely resolve a dispute an End Client is a material breach of this Agreement.
      5. Indemnification for End Clients. Customer agrees to defend, indemnify and hold Company, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from any claims, losses, damages, liabilities, settlements, and expenses (including, but not limited to attorney fees) by a third party related to, arising from, or connected with End Clients access and/or use of the Services.
4. THIRD PARTY SERVICES. If Customer enables, installs, connects, or provides access to any Third Party Services for use with the Services, Customer hereby:
   1. acknowledges and agrees that access to and use of such Third Party Services are governed solely by the terms and conditions of such Third Party Services, and Company does not endorse, is not responsible or liable for, and makes no representations as to any aspect of such Third Party Services, including, without limitation, their content or the manner in which they handle, protect, manage or process data (including Customer Content), any interaction between Customer and the provider of such Third Party Services, or their continued availability;
   2. permits: (i) transmission of Customer Content to such Third Party Service at Customer’s direction; and (ii) such Third Party Services to access the Customer Content at Customer’s direction;
   3. grants to Company and its Subcontractors all rights necessary to enable Company and its Subcontractors to provide the Services as it relates to any data transmitted from such Third Party Services to the Services and Customer represents and warrants that doing do so will not violate Laws or any third party's (including any provider of such Third Party Services) privacy, Intellectual Property Rights, or other rights;
   4. agrees that Company is not liable for: (i) damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access, or use of any Third Party Services, or (ii) Customer’s reliance on the privacy, data security, or other practices of such Third Party Services; and
   5. agrees to comply with reasonable requests by Company to remove any connections to or from other websites and/or applications to the Services which Customer installs.
5. PAYMENT TERMS
   1. Fees. Customer shall pay all fees specified in all Ordering Documents for the entirety of the Order Term (and any renewals thereof) in accordance with Customer’s Ordering Document. Except as otherwise specified in herein or in an Ordering Document: (a) fees are based on the Services ordered pursuant to an Ordering Document; (b) payment obligations are non-cancelable and fees paid are non-refundable; and (c) quantities purchased cannot be decreased during the relevant Order Term. If Customer exceeds the limits of its Subscription Plan or Ordering Document, Company may charge Customer overage fees for such excess usage.
      1. Subscription Tier. Fees associated with each Subscription Plan are based on Customer’s Subscription Tier. Customer’s Subscription Tier at any given time is determined by the number of Subscribers in the Customer’s Subscriber lists (as determined by adding the number of Subscribers in each Subscriber list - if a Subscriber exists in multiple lists, it will be counted separately for each list in which it appears). If Customer exceeds the limits of its Subscription Tier, Company will upgrade the Customer’s account to the appropriate Subscription Tier and charge Customer the applicable fees for that Subscription Tier for the remainder of the Order Term and any renewals thereof. Customer has the sole responsibility for updating its Contacts to ensure Customer is being charged at the appropriate Subscription Tier. Customer shall not delete, bulk unsubscribe, or otherwise alter or modify Customer’s Account in order to evade billing thresholds.
      2. Subscription Plan Upgrade. If a User accesses, uses, or activates any features which are only included in a higher-priced Subscription Plan (including exceeding where Customer exceeds their email sending limits), Company may, in its absolute discretion, upgrade Customer’s account to the appropriate higher-priced Subscription Plan for the remainder of the Order Term and any renewals thereof. Customer agrees to pay fees associated with the upgraded Subscription Plan for the remainder of the Order Term, and any renewals of the Order Term. In connection with this Section, if requested by Company, Customer will execute an amendment to their Ordering Document to reflect the Subscription Plan upgrade.
   2. Late Payment. If any amount due is not received by the due date, then without limiting Company’s rights or remedies, Company may apply a late fee of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid.
   3. Taxes. All fees stated in the Ordering Document are exclusive of any applicable taxes. Taxes payable by Customer (“Customer’s Taxes”) may be added to the final price charged to Customer on Customer’s invoice. Customer shall pay Customer’s Taxes with no reduction or offset in the amounts payable to Company hereunder. Customer will, and hereby agrees to, promptly reimburse Company for any and all of Customer’s Taxes (and any applicable penalties) that Company may be required to pay in connection with this Agreement upon receipt of Company’s invoice.
   4. Fees at Renewal. Unless otherwise stated on Customer’s Ordering Document, fees for renewal terms will be set at the then-current pricing and Customer is responsible for reviewing the fees charged by Company prior to renewal. Except any fees that are designated in the applicable Ordering Document as promotional or ‘one-time’, no fee change will be effective until renewal of that Service. Upon expiration of the applicable Order Term, Customer will automatically be charged in accordance with the payment method specified on Customer’s Ordering Document for renewal unless Customer terminates its account in accordance with this Agreement.
   5. No Refunds. Except as otherwise provided in this Agreement or required by Law, Company will not provide refunds or credits for partial or unused periods of service.
   6. Disputing Charges. Any dispute to a charge on Customer’s invoice must be made in writing with specificity within 60 days after the date of the invoice that initially contained the disputed charge.
6. INTELLECTUAL PROPERTY
   1. Customer’s Property. By using the Services, submitting any Customer Content through the Services, or providing any Customer Content to Company, Customer hereby grants Company and its Subcontractors a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to process, store, modify, combine, reproduce, distribute, display, publicly perform, publicly display, host, communicate, and prepare derivative works of the Customer Content in connection with the Services for the duration of the Agreement and until such time as Customer requests deletion of the Customer Content. For clarity, the foregoing license granted to Company and its Subcontractors, does not affect Customer’s ownership or license rights in its Customer Content (excluding any Pre-Existing IP) unless otherwise agreed in writing. Customer represents and warrants that Customer has all rights to grant such licenses to Company and its Subcontractors without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights.
   2. User Data. In addition, while using the Services, Customer and/or Users may provide information (such as a User’s name, contact information, and/or other registration information) to Company. Customer represents and warrants that it has complied with all Laws (including, as appropriate, with respect to providing any necessary notices and obtaining any necessary consents) to permit Company to use this information and any technical information about User’s use of the Services for the limited purposes of tailoring the user experience of the Services to the User, facilitating Users’ use of the Services, and communicating with Customer and/or a User. Further, Customer represents and warrants that it has taken necessary steps, in compliance with Law, to ensure that Company may use such information to identify and understand trends in the various interactions with Company’s Services and to conduct internal business analysis based on meta-data about usage, feature adoption and forecasting, on an anonymized, aggregated basis.
   3. Company’s Property. Customer acknowledges and agrees that all rights, title and interest in and to Services are the exclusive property of Company or its affiliates, licensors or suppliers. Unless stated otherwise, Company and its licensors retain all Intellectual Property Rights in and to the Services, including, without limitation, all logos, graphics, software, algorithms, functionality and content (other than Customer Content) included in or comprising the Services. All rights not expressly granted herein are reserved by Company.
   4. Statistical Data. Notwithstanding anything to the contrary in this Agreement, and consistent with the activities described in the Privacy Notice, Company may monitor, analyze, and compile Statistical Data. Customer agrees that Company may make such Statistical Data publicly available. Company and/or its licensors own all right, title and interest in and to the Statistical Data and all related software, technology, documentation, and content provided in connection with the Statistical Data, including all Intellectual Property Rights in the foregoing.
   5. Feedback. Customer may provide feedback, suggestions, and comments to Company regarding the Services (“Feedback”). Customer hereby grants to Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed.
   6. Publicity. Unless otherwise agreed by the parties in writing, Customer hereby agrees that Company may reference Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants Company a nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing.
7. CONFIDENTIALITY, SECURITY, & PRIVACY
   1. Confidential Information. The parties acknowledge that in the course of performing their obligations under this Agreement, a party receiving information (a “Recipient”) from a party disclosing information (a “Discloser”) that is either clearly marked as “confidential” or is nonpublic information that, under the circumstances surrounding the disclosure, a reasonable person would conclude should be treated as confidential (“Confidential Information”). Recipient covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Discloser, except (a) to those employees, representatives, or contractors of the Recipient who require access to the Confidential Information to perform its obligations or exercise its rights under this Agreement and who are bound by confidentiality obligations no less strict than those set forth in this Agreement, or (b) as such disclosure may be required by Law, subject to and to the extent permitted by Law, the Recipient providing to the Discloser written notice to allow the Discloser to seek a protective order or otherwise prevent the disclosure. Notwithstanding the foregoing, nothing in this Agreement will prohibit or limit the Recipient’s use of information: (i) previously known to it without breach or obligation of confidence, (ii) independently developed by or for it without use of or access to the Discloser’s Confidential Information, (iii) acquired by it from a third party that was not under an obligation of confidence with respect to such information at the time of disclosure, or (iv) that is or becomes publicly available through no breach of this Agreement.
   2. Protection of Customer Content. Without limiting the above, Company shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Content. Company shall not modify or access the Customer Content except as required to provide the Services, prevent or address service or technical problems, at Customer’s request in connection with support matters, or as otherwise provided in this Agreement, the Privacy Notice, or in written instructions from the Customer.
   3. Login Credentials & User Passwords. User login credentials must be kept up-to-date and attributable to named individuals within Customer’s Account (generic email aliases may not be used). User login credentials cannot be shared or used by more than one User. Customer is solely responsible for keeping Customers’ and/or Users’ account name, password, and any other login credentials confidential. Customer is responsible for any and all activities that occur within Customer’s Account, whether authorized by Customer or not. Customer must notify Company immediately of any unauthorized access or use of Customer’s Account. Company will not be held responsible or liable for any losses due to lost or otherwise compromised passwords.
   4. Privacy Notice. Notwithstanding anything to the contrary in this Agreement, the Privacy Notice explains how Company handles Customer Content and other data processed by the Services. Customer agrees to publish its own privacy notice or policy that complies with Law and takes into account the processing activities it has engaged Company to provide. For more information on how personal data is handled in connection with the Services, as well as information on rights to access, correct and lodge a complaint regarding the handling of personal data, please refer to the Privacy Notice.
   5. Sensitive PII. Customer understands and acknowledges that the Services are not configured to process, receive, and/or store Sensitive PII. “Sensitive PII” means: (a) protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); (b) "nonpublic personal information" as defined under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); (c) data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”); (d) card holder data under the Payment Card Industry Data Security Standard; (e) 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 (f) social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, 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.
   6. EU Personal Data Transfer. In the event that User information or Customer Content includes the Personal Data of an EU Data Subject (as defined by the GDPR), Customer shall notify Company and the parties shall execute Company’s Data Protection Addendum (the “Data Protection Addendum”). Once executed, the Data Protection Addendum will be deemed wholly incorporated into this Agreement and will prevail over any conflicting terms in this Agreement.
8. WARRANTIES
   1. Company Warranties. Company represents and warrants that: (a) Company shall make every reasonable attempt to ensure there is no material degradation of the Services during the Order Term; and (b) Professional Services shall be performed in a professional and workmanlike manner by qualified personnel.
   2. Customer Warranties. Customer represents and warrants that it will comply with Laws applicable to the collection, use, and processing of data relating to an individual that it uploads or transmits to the Services or collects via the Services.
   3. Use of Tracking Technology. Customer acknowledges that the Services employ the use of cookies and similar tracking technologies ("Tracking Technologies"), as further described in the Privacy Notice. Accordingly, Customer represents and warrants that it has taken all necessary and appropriate steps to comply with Laws, including, if applicable, by maintaining appropriate notice and consent mechanisms (as required by Laws or as reasonably requested by Company) and industry best practice to enable Company to deploy Tracking Technologies Lawfully on, and collect data Lawfully from, the devices of Users and Contacts for the purposes described in the Privacy Notice. Customer shall promptly notify Company if Customer is unable to comply with the above obligations.
9. DISCLAIMERS
   1. No Guarantee of Results. Customer understands and acknowledges that it is not possible to guarantee that the performance of the Services will be successful in producing any specific results. In particular, Customer further acknowledges that it is not possible for Company to warrant that the Professional Services guarantee a) high deliverability; b) high engagement with Customer Content; or c) a successful marketing campaign. Customer hereby acknowledges and agrees that Company will not be liable for the failure of the performance of the Services to generate any expected or useful results.
   2. API Connector/Integration. Company does not guarantee the continued availability of any API Connector/Integrations. Company may discontinue any API Connector/Integration at any time in its sole discretion. Customer should not make purchase decisions based on the availability of any such API Connector/Integration. Customer acknowledges and agrees that Customer may be able to use the connected application to access Customer Content in Customer’s account and/or transmit data out of Customer’s account. To the extent data is transmitted out of the Services, Company is not responsible for the privacy, security or integrity of that data.
   3. Service Availability. From time to time, down-time, either scheduled or unscheduled, may occur in respect of the Services. Company will work to ensure the amount of down-time is limited. Customer acknowledges and understand that Company does not warrant that the Services will be uninterrupted or error free.
   4. Advice. From time to time, Customer may obtain advice or information from Company help or support pages, white papers, and/or Company’s employees (collectively, “Advice”). Customer acknowledges and agrees that such Advice will not be deemed to constitute financial, legal or tax advice.
   5. CUSTOMER UNDERSTANDS THAT DOWNGRADING ITS ACCOUNT MAY RESULT IN THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF CUSTOMER’S ACCOUNT AND COMPANY DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES. USE OF THE SERVICES AND ANY RELIANCE BY CUSTOMER UPON THE SERVICES, BETA FEATURES, OR ADVICE, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY OR GUARANTEE AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES, BETA FEATURES, AND ADVICE ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW COMPANY DISCLAIMS ALL WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
10. INDEMNIFICATION
    1. Customer Indemnity. Customer shall defend, indemnify and hold Company, its Affiliates and their respective officers, directors, shareholders, successors in interest, employees, and agents harmless from any claims, losses, damages, liabilities, settlements, and expenses (including, but not limited to attorneys’ fees) (collectively, “Claims”) by a third party related to, arising from, or connected with: (a) Customer’s or any User’s use of the Services; (b) Customer’s or any User’s breach of the AUP or any representation or warranty made by Customer herein or therein; (c) Custom Works and/or any Customer Content (including, without limitation, Claims alleging that the Custom Works and/or the Customer Content violates or misappropriates the Intellectual Property Rights or other rights of any third party); (d) Customer’s or User’s gross negligence or intentional misconduct; (e) an allegation of defamation or invasion of privacy by Customer or any User; and/or (f) any violation of Law by Customer or any User. Notwithstanding the foregoing, Customer shall not make any admissions on behalf of Company or settle any Claim without Company’s consent.
    2. Company’s Right to Defend. Promptly upon learning of any Claim against Customer arising from or related to allegations that the Services violate or infringe a third party’s privacy or Intellectual Property Rights (a “Services Claim”), Customer shall give notice to Company of the Services Claim and immediately deliver to Company all original notices and documents (including court papers) received in connection with and/or related to the Services Claim. Company will have the exclusive right, but no obligation, to assume defense of such Services Claim at any time and at any stage. If Company assumes defense of any such Services Claim, Customer shall cooperate in the defense thereof as reasonably requested by Company. Upon assuming the defense of a Services Claim, Company may appoint any legal counsel selected by Company and settle any Services Claims on such terms and conditions that Company deems advisable. Customer agrees that upon Company’s assumption of the defense of the Services Claim: (a) Company will not be liable to Customer for any legal costs or expenses subsequently incurred by Customer in connection with the Services Claim; (b) such assumption is not an acknowledgment by Company that it is liable to indemnify Customer in respect of the Services Claim; and (c) it will not constitute a waiver by Company of any defenses it may assert against the Customer if Customer claims it is owed indemnification for such Services Claim. If, in Company’s sole opinion, any Claim related to, arising from, or connected with allegations that the Services infringe, violate or misappropriate a third party's Intellectual Property Rights may have validity, then Company may modify the Services, or any part thereof, to make them non-infringing, non-violating or non-misappropriating, as applicable, procure any necessary license, or replace the affected item with one that is substantially functionally equivalent in all material respects. If Company determines in its sole opinion that none of these alternatives are reasonably available, then Company may terminate this Agreement, Customer will discontinue all use of the allegedly infringing Services, and Company will issue Customer a pro-rata refund of any prepaid fees for such Services based on the number of months remaining in the then-current Order Term.
11. LIMITATION OF LIABILITY
    1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
    2. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, COMPANY OR ITS AFFILIATES IS FOUND LIABLE TO CUSTOMER FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IN NO EVENT COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDERING DOCUMENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT COMPANY’S LIABILITY WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH CUSTOMER CONTRIBUTED TO THE LOSS.
    3. CUSTOMER ACKNOWLEDGES THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO CUSTOMER, AND THAT, IF COMPANY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
    4. Notwithstanding anything to the contrary anywhere in this Agreement or any Agreements incorporated herein, Sections 11 A and 11.B do not apply so as to limit Company’s obligation to comply with applicable consumer guarantees under the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The liability of Company for any liability, loss, cost or damage, however caused (including by the negligence of Company), suffered or incurred by Customer because of Company’s modification of the Services or failure to comply with a consumer guarantee when providing the Services is limited to, Company (at its election): (a) resupplying that Service; or (b) paying the cost of having the Services supplied again. This Section 11.D does not apply if it is not fair or reasonable for Company to rely on it for the purposes of section 64A of the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Nothing in this Agreement purports to modify or exclude the conditions, warranties and undertakings, and other legal rights that Customer may have available under the Australian Consumer Law. This Section 11.D hereby expressly controls in the event of conflict with other provisions of this Agreement.
12. TERM, TERMINATION, & SURVIVAL
    1. Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue to apply to all Ordering Documents for the duration of such Ordering Documents and Customer’s obligations pursuant to this Agreement will continue to apply to any use of the Services by a User. Except as otherwise specified in the applicable Ordering Document or where prohibited by applicable Law, the Ordering Document and all non-expiring items added during the course of the Order Term, will automatically renew for additional periods equal in duration to the original Order Term or one year, whichever is shorter, unless either party gives the other notice of non-renewal at least 30 days before the end of the Order Term (or, if applicable, any renewal of the Order Term). The foregoing will not apply to any SOWs, which will terminate as stated therein.
    2. Right to Suspend. Company may suspend Customer’s Account: (a) for non-payment or untimely authorization of payment; (b) at any time without notice for conduct that it believes, in its reasonable discretion, violates: i) this Agreement or other agreements or guidelines which may be associated with Customer’s use of the Services; or ii) any Laws applicable to Customer’s use of the Services. If Customer has not sent email from its account for more than one year, THE ACCOUNT AND ITS DATA MAY BE PERMANENTLY REMOVED FROM COMPANY’S DATABASE.
    3. Termination. Either party may terminate this Agreement or any individual Ordering Document as follows: (a) for cause if the other party materially breaches this Agreement or an Ordering Document and does not remedy such breach within 30 days after its receipt of written notice of such breach; or (b) immediately if the other party: (i) terminates its business activities or becomes insolvent; (ii) admits in writing to the inability to pay its debts as they mature; (iii) makes an assignment for the benefit of creditors; or (iv) becomes subject to direct control of a trustee, receiver or similar authority. Customer agrees that Company will not be liable to Customer or to any third party for termination of this Agreement or Customer’s access to the Services resulting from any violation of this Agreement by Customer or any termination pursuant to the terms of this Agreement. Company may terminate this Agreement or terminate any individual Ordering Document at any time in its sole discretion.
    4. Effect of Termination. Upon expiration or termination of this Agreement: (a) Customer’s right to use the Services will cease, and Company will have no further obligation to make the Services available to Customer; (b) except as otherwise expressly stated herein, all rights granted to Customer under this Agreement will cease; (c) Customer will pay fees for the entire Order Term under all Ordering Documents in effect prior to the termination date, less any fees already paid pursuant to such Ordering Documents; and (d) Company may delete Customer Content and/or any archived data within 30 days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to Customer Content remains Customer’s responsibility.
    5. Survival. The AUP and the following sections of this Agreement will survive any termination or expiration of this Agreement: 1 (Definitions), 2 (Agreement Structure), 3.D (Restrictions), 3.F (Beta Features), 3.H (Professional Services Terms), 4 (Third Party Services), 5 (Payment Terms), 6 (Intellectual Property), 7.A (Confidential Information), 7.D (Privacy Notice), 7.E (Sensitive PII), 7.F (EU Personal Data Transfer), 8.B (Customer Warranties), 8.C (Use of Tracking Technology), 9 (Disclaimers), 10 (Indemnification), 11 (Limitation of Liability), 12.D (Effect of Termination), 12.E (Survival), and 13 (General). Termination, cancellation, or completion of an Ordering Document or this Agreement will not relieve either party of any previously accrued obligations or of any obligations which by their nature are intended to survive termination, cancellation or expiration.
13. GENERAL
    1. Interpretation. The headings in the Agreement do not affect its interpretation. References to sections are to sections of this Agreement. Any phrase introduced by the terms "including", "include" and "in particular" or any similar expression shall be construed as illustrative only and shall not limit the sense of the words preceding these terms. In this Agreement, unless the context requires otherwise: the singular includes the plural and vice versa; the masculine includes the feminine and vice versa.
    2. Force Majeure. Company will not be liable for any delays or failure in performance of any part of the Services due to any cause beyond Company's control. This includes, but is not limited to, acts of God, changes to Laws, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of hackers or third party internet service providers.
    3. Notices. Notices to Customer will be effective when Company posts them to Customer’s Account or sends them to the email address associated with Customer’s Account. Notices to Company will be effective when delivered to [email protected], with a copy to [email protected].
    4. Governing Law. The Laws of the State of New South Wales, Australia, excluding its conflict of Laws rules, will apply to any and all disputes, controversies, or claims arising out of or relating to the Services or this Agreement (“Disputes”). All legal actions in connection with a Dispute under this Agreement will be subject to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them. The United Nations Convention on Contracts for the International Sale of Goods (the “Vienna Sales Convention 1980”) is excluded from this Agreement.
    5. Disputes. Customer and Company each agree to exclusively arbitrate any and all Disputes. Any dispute, controversy, or claim arising out of, relating to, or in connection with this contract, including any questions regarding its existence, validity, or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of arbitration shall be English.
    6. Export Control. The Services made available by Company may be subject to export control Laws of the United Kingdom, United States and other jurisdictions. Customer shall comply with all applicable export Laws, and, without limiting the generality of the foregoing: (a) Customer represents that it is not named on any United Kingdom or United States government list of persons or entities prohibited from receiving exports; (b) Customer will not export or re-export, directly or indirectly, any Services or Company Confidential Information to any countries except as permitted under the export Laws of the United Kingdom and United States; and (c) Customer shall not permit Users to access or use Services in violation of any United Kingdom or United States export embargo, prohibition or restriction.
    7. Anti-Corruption. Customer agrees that Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Company’s employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer hears of any violation of the above restriction, Customer will use reasonable efforts to promptly notify Company’s Legal Department at [email protected].
    8. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of Company. Any purported assignment in violation of the foregoing shall be null and void ab initio. This Agreement and/or any right or duty under this Agreement may be transferred by Company without the consent of Customer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
    9. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, joint venture, agency, or fiduciary relationship between the parties. Nothing in this Agreement confers or is intended to confer any rights or remedies on any person or entity which is not a party to this Agreement.
    10. Non Solicitation. During the term of this Agreement, and for a period of one year thereafter, Customer shall not solicit for hire, on behalf of itself or any other organization, any personnel of the Company with whom Customer has had contact pursuant to the relationship established under this Agreement. If Customer violates this provision, Customer shall pay Company an amount equal to the aggregate compensation paid by Company to the solicited employee in the six months preceding Customer’s solicitation of such employee.
    11. Waivers. Any waiver by Company must be in writing and signed by an authorized representative of the Company. No waiver by a party of any breach of this Agreement by Company shall be a waiver of any preceding or succeeding breach by Company. No failure or delay by Company in enforcing any right or provision under this Agreement shall be construed as Company’s waiver of such right or provision or of any other right or provision.
    12. Severability. If any provision of this Agreement is held invalid, illegal or otherwise unenforceable, it shall be deemed modified to render it enforceable while preserving the parties’ original intent to the fullest extent, and the rights and obligations of the parties shall be construed and enforced accordingly. If the provision cannot be modified, then that provision will be deemed severed from this Agreement and all other provisions will remain in full force and effect.
    13. Electronic Signatures. This Agreement and any Ordering Document may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument.

Last Modified on May 25, 2021

ADVANCED SEGMENTATION TERMS

1. DEFINITIONS. In addition to terms defined elsewhere in the Agreement, the definitions below will apply to capitalized words in these Advanced Segmentation Terms. Capitalized words in these Advanced Segmentation Terms that are not otherwise defined herein shall have the meaning ascribed in the Agreement.
   1. “Agreement” means, as applicable, either the: 1) Terms of Use Agreement located at campaignmonitor.com/policies/#terms-or-use, as updated from time to time; or 2) a superseding written agreement for use of the Services executed by and between Company and Customer.
   2. "Advanced Segmentation" means the feature offering that allows Customers to create Segments within their Subscriber Lists with relative date rules.
   3. “Attribute Data” means a Subscribers stated interests, preferences, demographics, and other information about a Subscriber to be included in a Custom Field.
   4. "Behavioral Data" means data about Customer’s customers or prospects interaction with emails sent via Campaign Monitor (for example user name, postal address, e-mail address, IP address and phone number, date and time of activity).
   5. “Confirmation” means written documentation in a form and including substance reasonably satisfactory to Campaign Monitor that evidences Customer’s acceptance of the Segment Rule setup.
   6. “Custom Fields” means the extra fields added by a User to a Subscriber List that allows the User to store Attribute Data about their Subscribers.
   7. "Implementation Support” means the initial set-up of Customer’s Advanced Segmentation integrations and Segment Rules, as further clarified in Section 2 below.
   8. "Ongoing TAM Support” means the creation and ongoing management of Segment Rules. For clarity, Ongoing TAM Support will only include activities related to Advanced Segmentation features.
   9. “Process(ing)” means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
   10. “Segment” means a sub-list of Subscriber’s within a Subscriber List that meet the Subscriber Data criteria as selected by the User.
   11. “Segment Rule” means the rule structure for segmentation of data created in accordance with Customer’s instructions.
   12. “Subscriber Data” means all Attribute Data and Behavioral Data.
   13. "Technical Account Manager” or “TAM” means the dedicated Campaign Monitor account manager that will help Customer setup and manage Advanced Segmentation features and Segment Rules.
2. IMPLEMENTATION AND ONGOING SUPPORT.
   1. Customer will send the TAM a Segment creation request via email, weekly status, or standard form provided by Campaign Monitor.
   2. Once Segment Rules are created, the TAM will provide Customer with a snapshot of the Segment Rule setup.
   3. Once Customer provides Confirmation of the Segment Rule, the TAM will implement the Segment Rule.
   1. Customer acknowledges and agrees that the Advanced Segmentation feature and Segment Rules may only be set up with the support of a TAM.
   2. Account Setup. Customer shall instruct the TAM which Subscriber Lists within Customer's Campaign Monitor account Customer wishes to segment using the Advanced Segmentation feature.
   3. Segment Creation. The TAM will create and implement Segment Rules for the creation of Segments, as instructed by the Customer, in accordance with the following procedure:
3. SUBSCRIBER DATA.
   1. Duplicate Custom Fields. Customer understands and acknowledges that if the Subscriber Lists used for Advanced Segmentation features have duplicate Custom Field titles across such Subscriber Lists, then any new Attribute Data associated with the Custom Field may augment or replace the underlying data about a Subscriber included in such Subscriber Lists causing that Subscriber to be included in (or excluded from) a Segment that they would not otherwise have been included in (or excluded from). Customer agrees not to include duplicate Custom Fields across Subscriber Lists used for Advanced Segmentation unless Customer has obtained the right to augment and/or replace Attribute Data in the foregoing manner.
   2. Subscriber Data Processing. 
      1. Customer acknowledges and agrees that in order to provide the Advanced Segmentation features, Campaign Monitor will Process Subscriber Data on behalf of Customer in the manner instructed by Customer and at Customer’s direction.
      2. Customer acknowledges and agrees that Campaign Monitor cannot control the manner in which Customer obtains Attribute Data and collection and sharing of Attribute Data with Campaign Monitor is at Customer’s sole control and discretion.
      3. Customer represents and warrants that Customer has, in compliance with applicable Laws, informed all persons whose Subscriber Data is Processed (whether in anonymous or identifiable form):
         1. of the purpose for which that information was collected;
         2. that Customer may provide Subscriber Data to its vendors and/or service providers for the purposes of use in relation to the Services;
         3. that Subscriber Data may be combined with other information the Customer has on file about them; and
         4. that Subscriber Data may be processed and/or stored by Customer’s vendors and/or service providers on servers located in the United States of America.
      4. Customer further represents and warrants that Customer has, in compliance with applicable Laws, obtained the consent of all persons whose Subscriber Data is collected (whether in anonymous or identifiable form) for the Processing of their Subscriber Data by Customer's vendors and service providers for the purposes for which Customer is processing such Subscriber Data.
      5. Customer further represents and warrants that Campaign Monitor’s Processing of such Subscriber Data on behalf of Customer, as instructed by Customer, does not violate any Laws or rights of any third party, including without limitation any Intellectual Property Rights, rights of privacy, or rights of publicity.
   3. Upon request by Campaign Monitor, Customer shall have an authorized director or officer provide written certification that proper notices and consents have been obtained as required by applicable Laws.
4. AGENCY. Customer represents and warrants that if Customer is using the Agency or Reseller version of the Services, Customer will not co-mingle, will not instruct a TAM to co-mingle, and will not cause to be co-mingled, any of its End Client’s User Content, including any Subscriber Data obtained while using the Advanced Segmentation features.
5. MULTI-TEAM ACCOUNTS. Unless otherwise expressly communicated in writing to the TAM, if Customer has multiple teams set up within its account and Customer is not acting as an Agency or Reseller, Customer represents and warrants that:
   1. they have provided the legally required notices and obtained any legally required consents to share, modify, update, and append Subscriber Data among multiple team accounts; and
   2. doing so will not violate any Law or third party’s privacy, intellectual property, other other rights.
6. DISCLAIMERS. CAMPAIGN MONITOR DOES NOT GUARANTEE THAT ACCOUNT SETUP OR SEGMENT RULE SETUP IS ERROR-FREE. THE TAM SERVICES AND ANY RELIANCE BY CUSTOMER UPON THE TAM SERVICES, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK.
7. TRANSITION. Customer acknowledges and agrees that a new version of Campaign Monitor with incorporated Advanced Segmentation features may become available during Customer’s Order Term or a renewal thereof and that this new version will replace the Advanced Segmentation features made available through a TAM. Upon release of such new version, Customer hereby agrees to be transitioned to such new version for the remainder of Customer’s then-current Order Term. Customer shall have access to all features included in the current Advanced Segmentation offering except for access to a TAM. Notwithstanding the foregoing, Customers on a Premier version of Campaign Monitor will continue to have access to a Customer Success Manager who will help with reasonable transition related activities. Upon renewal, Customer will be charged fees associated with the new version of Campaign Monitor with Advanced Segmentation features unless the Parties expressly agree in writing prior to Customer’s renewal.

Last Updated March 14, 2019

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

This AUP (as modified from time to time by Company in its sole discretion) is a legal agreement between You (“Customer”, “You”, “Your”) and Campaign Monitor Pty Ltd (“Company”) and defines the terms and conditions under which You are allowed to use the Services (as defined below). 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 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 different);
• 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 Agreement.

SECTION 1. 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.

A. “Agreement” means, as applicable, either the: 1) Terms of Use Agreement located at campaignmonitor.com/policies/#terms-of-use, as updated from time to time; or 2) a superseding written agreement for use of the Services executed by and between Company and Customer.

B. “Carrier Requirements” means the terms and conditions set by wireless carriers and other parties (including, without limitation, Subcontractors) that provide SMS services.

C. “Cookie Notice” means the Company’s Cookie Notice located at campaignmonitor.com/policies/#cookie-policy, as updated from time to time.

D. “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.

E. “Generative AI Services” means functionality included in the Services that use algorithms to produce content, including, text, imagery, audio, or computer source code.

F. “Liveclicker Services” means Services delivered in connection with the Liveclicker and Liveclicker-related products.

G. “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.

H. “Request” means an incoming web connection that asks the Liveclicker Services to deliver the Liveclicker elements.

I. “SMS Services” means, providing Services as follows: 1) designation of short codes or long codes for use with Customer’s messaging campaigns; 2) the collection of SMS messages from Customer as agreed to by the parties; or 3) the transmission of such SMS messages to Mobile Subscribers (as defined below) who either (a1) opt-in electronically to SMS Services through Customer; or (b2) are identified by Customer as individuals who have opted in to SMS Services through Customer.

SECTION 2. CUSTOMER AND USER OBLIGATIONS.

A. Customer agrees to, and where applicable, shall ensure that Users agree to:

i. keep contact information for Customer’s Account updated and promptly respond to queries from Company;

ii. 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;

iii. 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; and

iv. use the Services in compliance with Laws, the Agreement, and this AUP, as well as the Anti-Spam Policy available at https://www.campaignmonitor.com/policies/#anti-spam

B. Security Requirements. Customer represents and warrants that while using the Services, Customer will:

i. 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

ii. cooperate with Company’s reasonable investigations of service outages, security problems, and/or any suspected breach of the Services, any Ordering Documents, this AUP, and/or the Agreement or any of its incorporated documents.

C. 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 Data 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.

SECTION 3. ACCESS LIMITS. The Services may be accessed by no more than the specified number of Users set forth in Customer’s Ordering Document (unless such Ordering Document specifies unlimited Users). User credentials and access cannot be shared or used by more than one User; provided, however, User credentials and access may be reassigned to replace former Users who no longer access 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 and/or its Affiliates other customers.  

SECTION 4. RESTRICTIONS ON USE.

A. 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:

i.  inaccurately represent its organization or impersonate any other person or organization, whether actual or fictitious;

ii.  access or use the Services except as permitted in the Agreement and this AUP; 

iii.  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;

iv.  use the Services to store or transmit Malicious Code;

v.  interfere with or disrupt the integrity or performance of the Services or third party data contained therein;

vi.  use the Services in any other manner that puts an excessive burden on the bandwidth of the Services; 

vii.  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 

viii.  attempt to probe, scan, or test the vulnerability of the Services or perform any penetration testing against or on the Services;  

ix.  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

x.  use the Services to compete with the Services or Company in any manner.

B. Intellectual Property Restrictions. Customer shall not (and shall not permit any third party to):

i.  except as expressly permitted in writing by Company, sell, resell, rent, or lease the Services or any part of the Services;

ii.  remove or alter trademark, logo, copyright, or other proprietary notices or labels from the Services; 

iii.  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, 

iv.  create derivative works based on the Services;

v.  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  

vi.  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; (c) monitoring the availability, performance or functionality of the Services; or (d) 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.

C. 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:

i.  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, daily deals, coupons, paid surveys, 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; or any other content that Company deems inappropriate in Company’s sole discretion;

ii.  except as approved by Company in writing, about or relating to: loans, insurance, horoscopes, dating services, daily deals, coupons, paid surveys, recruitment or job-seeking services, or tobacco and/or related products;

iii.  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, fraudulent, or otherwise objectionable (as determined by Company in Company’s sole discretion); 

iv.  that materially violates: (1) industry standards, policies and applicable guidelines published by generally recognized industry associations; or (2) carrier guidelines and usage requirements where applicable; and/or

v.  that violates or infringes: 1) Company’s reasonable recommendations and/or instructions; 2) any Laws; and/or 3) 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.

D. Sensitive PII. Customer understands and acknowledges that the Services are not configured to process, receive, and/or store Sensitive PII. “Sensitive PII” is defined as: 1) protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); 2) "nonpublic personal information" (‘NPI”) 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 number or other government related identifiers, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, 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.

SECTION 5. COMPANY’S RIGHTS.

A. 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.

B. Disclosure. Company shall have the right to disclose communications between (i) Customer and (ii) its Contacts and other users of its Services to the extent required by Law, including, without limitation as required by legal process or court order.

C. 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.

SECTION 6. SMS TERMS

A. Applicability. Section 6 (SMS Terms) of this AUP shall only apply to the use of SMS Services by Customer.

B. Consent. Customer shall use SMS Services only to send SMS messages to mobile subscribers (“Mobile Subscribers”) that have consented, in accordance with Law and has Permission as defined in Company’s Anti-Spam Policy, to receive such messages and that have not opted out from receipt of such messages.  Customer agrees that it will 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.

C. Restriction on use of SMS Services. Customer agrees that it may not, and may not encourage or allow any Users to:

i.  Unless otherwise agreed by Company in writing, Customer shall not to transfer, resell, lease, license or otherwise make the SMS Services available to third parties or offer them on a standalone basis;

ii.  If Customer has purchased or is otherwise using a short code, then Customer will not change its use of that 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;

iii.  Use the SMS Services to access or allow access to emergency services;

iv.  Use the SMS Services in any manner that materially violates the: (a) industry standards, policies and applicable guidelines published by (i) the CTIA (Cellular Telecommunications Industry Association), (ii) the Mobile Marketing Association, or (iii) any other generally recognized industry associations; (b) carrier guidelines and usage requirements;

vi.  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;

vii.  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; and/or

viii.  Use the SMS Services in a way to evade unwanted message detection and prevention mechanisms (including, without limitation, spreading similar or identical messages across many phone numbers).

D. 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: 1) is appropriate for the Mobile Subscriber; 2) does not otherwise violate any Laws; 3) is not subject to any cause of action for defamation or invasion of privacy; and 4) 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 no liability for any Customer Content or any SMS messages transmitted by Customer in violation of Law.

E. Phone Numbers and Short Codes. 

i.  Porting Phone Number(s). Company, in its sole discretion, may approve or reject any request from Customer to either port in or port out a phone number for use in connection with the SMS Services.  Customer agrees to fully cooperate with Company in making a request to port a phone number in or out of the Services, including completing any necessary forms. Customer agrees to pay any fees and/or costs associated with porting a phone number in or out of the Services.

ii.  Short Codes.  Company, in its sole discretion, may approve or reject any request from Customer to use a short code in connection with the Services. If Customer is using a short code in connection with the SMS Services, Customer agrees will not change its short code use case approved by the applicable telecommunications provider and Company without Company’s prior written approval.  Customer agrees to pay any fees or costs associated with applying for, or using, a short code in connection with the Services.

iii.  Withdrawal of Phone Numbers.  Company may change the phone number(s) or short code(s) associated with Customer’s account at any time.

F. Identification and Opt Outs.

i.  Identification. Each message must identify the Customer (the person who obtained the consent) except in follow-up messages of an on-going conversation.

ii.  Opt Outs.  In addition to any obligations pursuant to Laws, the initial message that you send to a Mobile Subscriber must include opt out instructions as approved by Company (e.g., “Reply STOP to unsubscribe”). 

G. Compliance

i.  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. Any such suspension of the SMS Services shall not result in any liability to Company nor alleviate Customer’s obligation to pay the fees to Company for the full Order Term. 

ii.  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 and industry standards related to its use of the SMS Services, including without limitation, Laws and standards which require specific information be included wherever the short code or long code is advertised, or where individuals are invited to sign up for short code or long code messages. Customer should consult with its legal counsel to ensure that its text messaging campaign conforms to all Laws.

iii.  Disclosure. In addition to any obligations under this AUP and the Agreement, Customer warrants that it will comply with all applicable privacy requirements concerning communications using the SMS Service between (i) Customer and (ii) its Mobile Subscribers and other users of its services, including without limitation Customer’s privacy policy, to the extent such policy places greater limitations on use of Mobile Subscribers’ data than Law.

SECTION 7. GENERATIVE AI TERMS.

A. Applicability. Section 7 (Generative AI Terms) of this AUP shall only apply to the use of the Generative AI Services by Customer.

B. Generating Content. When Customer uses Generative AI Services, Customer may be asked to input or upload material, such as an audio file, video file, document, image, or a text prompt (collectively “Input”). The Input will be used by the Generative AI Services to generate an output, such as an image, text, text effects, vector graphic, audio file, or video file, which will be displayed within the Services and Software (“Output”). The Input and Output are Customer Content and all provisions governing Customer Content in the Agreement apply to the Input and Output. The Generative AI Services, Input, and Output must be used in accordance with this AUP.

C. 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:
i. child sexual abuse material or any content that exploits or harms children;
ii. activity that has high risk of physical harm;
iii. political campaigning or lobbying;
iv. engaging in the unauthorized practice of law, or offering tailored legal advice without a qualified person reviewing the information;
v. offering tailored financial advice without a qualified person reviewing the information;
providing medical advice or providing instruction on how to cure or treat a health condition;
or
vi. high risk government decision-making.

D. 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 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.

E. 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.

F. Output.
i. 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.
ii. 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.

G. 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.

 SECTION 8. LIVECLICKER SERVICES TERMS

A. Applicability. Section 8 (Liveclicker Services Terms) of this AUP shall only apply to the use of the Liveclicker Services by Customer.

B. Right to Temporarily Disable.  Company may temporarily disable all or part of the Liveclicker Services (including any API Connector/Integration) if Company determines in its sole discretion that the Liveclciker 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 450,000 Rrequests per month, unless otherwise permitted on an executed Ordering Document between the Parties.

Last Updated on April 17, 2024

By applying for the Campaign Monitor Referral Partner Program (the “Program”), you are agreeing to be bound by this Campaign Monitor  Referral Partner Program Agreement (the “Partner Program Agreement”). This Partner Program Agreement is entered into by you on behalf of your company (“Referral Partner”) and (ii) Campaign Monitor Pty Ltd. ( “Company”). By completing a program registration or application process, you acknowledge that Referral Partner has reviewed and accepts all of the terms of this Partner Program Agreement and that you are duly authorized to act on behalf of Referral Partner to bind it to this Partner Program Agreement.

The Parties agree as follows:

1. Definitions. In addition to terms defined elsewhere in this Partner Program Agreement, the following definitions will apply to capitalized words in this Partner Program Agreement:
   1. “Affiliate” of a Party means any entity that directly or indirectly controls, is controlled by, or is under common control of that Party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the entity or the right to receive more than 50% of the profits or earning of the entity.
   2. “Company Property” means Products and Materials.
   3. “Confidential Information” has the meaning set forth in Section 5.
   4. “Disclosing Party” has the meaning set forth in Section 5.
   5. “Feedback” has the meaning set forth in Section 6.
   6. “Materials” means any of Company’s sales and marketing materials, instructions, directions, and/or documentation (including any trademarks, trade names, service marks and logos included in the foregoing), as modified by Company from time to time.
   7. “Party” refers to either Company or Referral Partner and “Parties” collectively refers to Company and Referral Partner.
   8. “Partner Manager” means the third party company that manages the Program and directed Referral Partner to this Partner Program Agreement.
   9. “Partner Manager Platform” means Payment Manager’s online or app-based dashboard.
   10. “Privacy Notice” means the Privacy Notice available at https://www.campaignmonitor.com/policies/#privacy-policy, as updated from time to time.
   11. “Product” or “Products” means the software as a service product offered by Company.
   12. “Program” has the meaning set forth in the preamble to this Partner Program Agreement.
   13. “Prospect” means new prospective customers that Referral Partner may, from time to time, refer to Company.
   14. “Purchase” means a customer order form for the Products executed during the Referral Period by and between Company and the Sales Qualified Lead with a minimum 12-month contract term.
   15. “Receiving Party” has the meaning set forth in Section 5.
   16. “Sales Qualified Lead” means a prospect for the Product: (i) that is not a current customer or prospect of Company, or a known prospect, partner, or customer thereof, (ii) that provides Company their contact information via Company’s website after being referred to Company from Referral Partner; (ii) that Company, in its sole discretion, determines is a legitimate prospect to purchase the Products and (iv) subject to any additional limitations described on the Partner Manager Platform.
   17. “Referral Fee” means the fee that Referral Partner is eligible to receive subject to Section 4 (Payment of Referral Fees).
   18. “Referral Period” means the six month period after Company’s acceptance of the  Sales Qualified Lead in accordance with this Partner Program Agreement.
2. Referral Program. Company is in the business of offering an email marketing platform to businesses. Referral Partner is in a position to refer prospective customers to Company. This Partner Program Agreement provides the terms and conditions under which Referral Partner may refer Prospects to Company from time to time, on a non-exclusive basis,  as part of the Program.  Company will pay Referral Partner a Referral Fee as stated on the Partner Manager Platform. Approval and acceptance of any Prospect will be at Company’s sole discretion, and Company may reject any Prospect for any reason or for no reason.
3. Promotion, Referral Activities.  Referral Partner shall use commercially reasonable efforts to promote and market the Products by referring prospective customers to Company.  In furtherance of Referral Partner’s efforts to promote Company, Referral Partner may only use Materials that have been provided and/or approved by Company.  In its efforts, Referral Partner will use the then-current names for the Products and will not add to, delete from, or modify any Materials provided by Company. Referral Partner represents and warrants that it will accurately represent the Products and will not make any statements or provide any materials or documentation about the Products that are inconsistent with the Materials. Referral Partner understands and agrees that it is not permitted to make any representations or promises regarding Company’s pricing or discounting for the Products. Referral Partner acknowledges and agrees that Company is not bound to any price (or any other term or condition) with respect to the sale of any Products until it has executed the applicable customer agreement and Referral Partner will not represent or imply anything to the contrary to any party.
4. Payment of Referral Fee. Payments in the Program are handled by the Partner Manager. In order to receive payments under this Partner Program Agreement, Referral Partner must create and maintain an account with Partner Manager on the Partner Manager Platform, which is provided pursuant to terms directly between the Partner Manager and Referral Partner. Referral Partner must keep all information updated and complete within the Partner Manager Platform to receive proper payments. Payments returned due to incorrect payment email addresses or other incorrect information will not be returned. The Parties agree that: (a) the data shown in the Partner Manager Platform will govern payments to be made, subject to Company’s right to correct errors based on its own records and (b) records and payments will be deemed complete, incontestable, and final 12 months after Company approves the applicable Sales Qualified Lead. If Prospect is in breach of its Partner Program Agreement with Company, payment will not be made to Referral Partner.  For clarity, only Company, and not Referral Partner, is permitted to negotiate any terms, including legal and commercial terms, of any agreements between Prospects and Company. Referral Partner will not be entitled to a Referral Fee with respect to sales to any Prospects that occur after the Referral Period. Notwithstanding any other provision of this Partner Program Agreement, if Referral Partner provides Company with contact information for a Prospect, Company may use such information for the purposes of marketing the Products at any time.
5. Confidentiality.  As used herein, "Confidential Information" means all confidential information disclosed by a party (the "Disclosing Party") to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or the Receiving Party knows or should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. Confidential Information includes, but is not limited to, the terms of this Partner Program Agreement as well as components of the business plans, inventions, product plans, design plans, financial plans, computer programs, know-how, customer information, prospective customer information, strategies, marketing plans, technology and technical information, business processes and other similar information. Without limiting the foregoing, Company's Confidential Information includes the Products and information related to it. Confidential Information does not include information that: (a) is in or enters the public domain without breach of this Partner Program Agreement through no fault of the Receiving Party; (b) the Receiving Party can reasonably demonstrate was in its possession prior to first receiving it from the Disclosing Party; (c) the Receiving Party can demonstrate was developed by the Receiving Party independently and without use of or reference to the Disclosing Party's Confidential Information; or (d) the Receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Partner Program Agreement; and (iii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Partner Program Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information if it is compelled to do so by law or in connection with other legal proceedings, provided that the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) so as to permit the Disclosing Party a reasonable opportunity to prevent such disclosure.
6. Proprietary Information.  Referral Partner acknowledges that all rights, title, and interest in and to the Company Property are the exclusive property of Company or its Affiliates, licensors, or suppliers. This Partner Program Agreement does not grant to Referral Partner any rights to use, copy, distribute, reverse engineer, reverse compile or otherwise deal with any Company Property. All rights not expressly granted herein are reserved by Company. In addition, Referral Partner may provide feedback, suggestions, or comments to Company regarding the Company Property (“Feedback”). To the extent any such Feedback is not deemed Company Property, Referral Partner hereby grants to Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable, and transferable license to use, process, store, edit, modify, perform, prepare derivative works of, and  fully exploit such Feedback in any medium or format, whether now known or later developed. Subject to the terms of this Partner Program Agreement, Company grants to Referral Partner a non-exclusive, non-transferable, revocable right and license, during the term of this Partner Program Agreement, to use and display the Materials solely for the purposes set forth in this Partner Program Agreement. All such use of the Materials shall include trademark and copyright markings as provided by Company and shall be in accordance with the Company’s trademark usage guidelines or other instructions as may be provided in writing by Company from time to time.  All goodwill arising from Referral Partner’s use of Materials shall inure to Company.  Notwithstanding the foregoing, any such use or proposed use of the Materials shall be presented to Company for written approval not less than ten business days prior to the intended date of use, and any use not expressly approved by Company in writing shall not be deemed approved.  Referral Partner will not use, register or take other action with respect to any Materials used anywhere in the world by Company.  Other than as expressly and unambiguously provided in this Partner Program Agreement, Referral Partner shall not have any right to use the Materials. Partner shall not purchase search engine or other pay-per-click keywords (such as Google AdWords), or domain names that use Company or Company’s Affiliates’ names, trademarks and/or variations and misspellings thereof.
7. Privacy Notice. Notwithstanding anything to the contrary in this Partner Program Agreement, the Privacy Notice explains how Company collects, uses and shares information that it processes as part of the Program and in providing the Products. Referral Partner shall publish its own privacy notice or policy that complies with applicable law and takes into account the processing activities it engages in under this Partner Program Agreement.
8. Social Media Restrictions. When advertising or promoting the Program on Facebook, Twitter, Instagram, YouTube and other social media platforms, Referral Partner (a)  may only promote programs and links on Referral Partner’s  social media page, (b) shall not post Referral Partner’s links on Company’s Facebook, Twitter, Pinterest, or any other Company social media accounts or pages, and (c) shall not create a  social media account that includes the Materials.
9. Referral Partner Warranties.  Referral Partner represents and warrants that: (i) Referral Partner will comply with good and ethical business practices in the performance of this Partner Program Agreement; (ii) Referral Partner has submitted and will submit complete and truthful information in connection with all customer and prospect referrals; (iii) Referral Partner has the right to submit the information submitted via the Partner Manager Platform and will submit all filings and obtain any approvals that may be necessary for Referral Partner to perform its obligations under this Partner Program Agreement, (iv) Referral Partner will commit no act that would reflect unfavorably on Company; (v) Referral Partner is not a party with whom Company is prohibited from doing business under U.S. export regulations and controls; (vi) Referral Partner is legally allowed to enter into this Partner Program Agreement and receive the Referral Fee; (vii) by entering into this Partner Program Agreement, Referral Partner will not be in violation of any other Partner Program Agreement, including but not limited to, an employment agreement; (viii) Referral Partner will not make any bribe, kickback or similar payment in connection with this Partner Program Agreement; and (ix) Referral Partner will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with its performance of this Partner Program Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws, the Federal Trade Commission Endorsement Guides, which requires disclosure of communications between advertisers and sponsors, and where applicable, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) and the  the California Consumer Privacy Act, Cal. Civ. Code § 1798.100 et seq., and its implementing regulations.
10. Warranty Disclaimer.  ANY WARRANTIES FOR THE PRODUCTS WILL RUN DIRECTLY FROM COMPANY TO ITS CUSTOMERS. IN NO EVENT WILL REFERRAL PARTNER MAKE ANY REPRESENTATION, GUARANTEE, OR WARRANTY CONCERNING A PRODUCT EXCEPT AS EXPRESSLY AUTHORIZED IN ADVANCE BY COMPANY IN WRITING. NEITHER COMPANY NOR ITS SUPPLIERS NOR LICENSORS MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO A PRODUCT OR THE SUBJECT MATTER OF THIS AGREEMENT AND SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY WILL HAVE NO LIABILITY FOR THE ACTS OR OMISSIONS OF THE REFERRAL PARTNER, THE Partner Manager, OR THE Partner Manager PLATFORM.
11. Indemnity.  Referral Partner shall defend, indemnify and hold Company and its directors, officers, employees, suppliers, consultants, contractors, and agents harmless from and against any and all actual or threatened third party claims, suits, actions, proceeding, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) against Company arising out of or related to any act, default, misrepresentation or omission (including, without limitation, negligence and breach of this Partner Program Agreement) by the Referral Partner, its agents, employees or representatives, directly or indirectly relating to this Partner Program Agreement, including without limitation, any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.
12. Liability Limitations.  TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, NEITHER COMPANY NOR ITS SUPPLIERS NOR LICENSORS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE PAYMENTS BY COMPANY TO REFERRAL PARTNER DURING THE PRECEDING TWELVE MONTHS. THE PARTIES ACKNOWLEDGE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
13. Termination. This Partner Program Agreement will commence upon the date that Referral Partner joins the Program and will continue until otherwise terminated by one of the Parties pursuant to this section.  Notwithstanding the foregoing, Company shall have the right, at any time, to terminate this Partner Program Agreement for convenience upon 10 days’ written notice to Referral Partner.  Further, if either Party breaches this Partner Program Agreement, the other Party may terminate this Partner Program Agreement upon 15 days’ written notice unless the breach is cured within the notice period.  Upon termination or expiration of this Partner Program Agreement for any reason whatsoever, (i) Referral Partner shall immediately discontinue any use of the Materials and any other name, logo, trademark or service mark of Company, (ii) Referral Partner shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the Parties, (iii) Referral Partner will cease to promote or solicit customers for the Products, (iv) Receiving Party will immediately return to the Disclosing Party, or destroy and certify in writing the destruction of, all Confidential Information and any other information or materials of the Disclosing Party.   If Company terminates the Partner Program Agreement, payment obligations of the Partner Program Agreement for Sales Qualified Leads and Purchases shall survive for a period of one month after termination of the Partner Program Agreement; provided that Referral Partner is only entitled to Referral Fees for Sales Qualified Leads or Purchases sent prior to the effective date of termination of the Partner Program Agreement. After termination, Company shall be entitled to use contact information of Prospects (but no other Confidential Information of Referral Partner) to market Products to such Prospects. Neither Party shall be entitled to damages or any compensation on account of termination of this Partner Program Agreement in accordance with its terms.  Notwithstanding the foregoing, the right to payments of Referral Fees owed prior to the termination date shall survive termination or expiration of this Partner Program Agreement.
14. Relationship of Parties.   Neither Party will, for any purpose, be deemed to be an agent, employee, representative, owner, or partner of the other Party.  Each Party shall be solely responsible for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of its activities, or those of its employees or agents, in the performance of this Partner Program Agreement.  During the term of this Partner Program Agreement, should the term "partnership" or "partner" be used to describe the cooperative marketing relationship, each Party agrees to make it clear to third parties that these terms refer only to the spirit of cooperation between the Parties and do not describe or create the legal status of partners or joint venturers. Neither Party has the authority, right or ability to bind or commit the other Party in any way and will not attempt to do so or imply that it may do so.
15. Non-exclusive Agreement. The referral arrangement described in this Partner Program Agreement shall be non-exclusive. Nothing in the Partner Program Agreement shall be intended to prevent or limit the possibility for each of the Parties to enter into a similar engagement with a third party. Nothing in this Partner Program Agreement shall be construed as limiting in any manner Company’s marketing, sales, or distribution activities or its appointment of other referral partners, dealers, distributors, licensees, agents or representatives of any kind.
16. Notices. Notices to Referral Partner will be effective when Company sends them to the email address Referral Partner shares with Company via the Partner Manager Platform. Notices to Company will be effective when delivered to [email protected], with a copy to [email protected].
17. Miscellaneous.  Referral Partner may not assign this Partner Program Agreement nor any right or obligation, by operation or law or otherwise, without the prior written consent of Company and any purported transfer or assignment absent such consent will be void.  This Partner Program Agreement may be assigned or transferred by Company without Referral Partner’s consent.  Except as otherwise provided herein, this Partner Program Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the Parties.  If any provision of this Partner Program Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Partner Program Agreement shall otherwise remain in full force and effect and enforceable.  Except as otherwise expressly provided herein, any provision of this Partner Program Agreement may be amended or waived only with the written consent of both Parties.  This Partner Program Agreement shall be governed by and construed under the laws of the State of New York without regard to the conflicts of law provisions thereof, and the Parties irrevocably consent to the jurisdiction of the state and federal courts in New York County, New York for the resolution of any disputes or conflicts arising out of or related to this Partner Program Agreement. This Partner Program Agreement is the sole and entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements or discussions between the Parties with respect thereto.

This Partner Program Agreement was last updated on August 24th, 2021

PLEASE READ THIS ANTI- SPAM POLICY (THE “ANTI-SPAM POLICY”) CAREFULLY BEFORE USING ANY SERVICES AVAILABLE AT CAMPAIGNMONITOR.COM (THE “SITE”) OR OFFERED BY OR ON BEHALF OF CAMPAIGN MONITOR PTY LTD. OR ITS AFFILIATES. IF YOU DO NOT ACCEPT THIS ANTI-SPAM POLICY, YOU ARE NOT AUTHORIZED TO USE THE SERVICES. 

As an email service provider, Campaign Monitor takes an active role in reducing spam and supporting regulatory and best-practice guidance that fosters a fair, respectful and effective email marketing community. In consideration of the many anti-spam laws in effect throughout the world and best practice guidance from industry leaders, we have created this anti-spam policy to simplify the requirements we place on our customers. Your adherence to this policy will help maintain a high reputation for our sending infrastructure which, in turn, will boost the deliverability and effectiveness of messages you send using our services. 

Throughout this Anti-Spam Policy references to “Company” are references to Campaign Monitor and references to “Customer” are to you, a user of the Services.

SECTION 1. DEFINITIONS.  In addition to terms defined elsewhere in this Anti-Spam Policy, the definitions below will apply to capitalized words in this Anti-Spam Policy. Capitalized words in this Anti-Spam Policy that are not otherwise defined herein shall have the meaning ascribed in the Agreement or Acceptable Use Policy (as applicable).

A. “Acceptable Use Policy” means Company’s Acceptable Use Policy located at https://www.campaignmonitor.com/policies/#acceptable-use-policy, as updated from time to time.

B. “Agreement” means, as applicable, either the: 1) Terms of Use Agreement located at https://www.campaignmonitor.com/policies/#terms-of-use, as updated from time to time; or 2) a superseding written agreement for use of the Services executed by and between Company and Customer. 

C. “Anti-Spam Laws” means any and all Laws regulating the transmission of electronic messages.

D. “Contact(s)” means, other than Users, any identified or identifiable natural person: 1) whose information is stored, transmitted, or otherwise ‘processed’ (as defined by the GDPR) via the Services by Customer; and/or 2) to whom Customer sends, transmits, or otherwise engages with via the Services.

E. “Customer List” is a list of Contacts uploaded to the Services or created on or via the Services.

F. “Distribution Email Address” means an email address associated with a distribution list that enables a User to send an email to multiple recipients by sending that email to the single email address associated with the distribution list. 

G. “Permission” means permission obtained from an individual to receive communications from Customer, in compliance with Section 3 below, that was either: 1) obtained within the preceding 12 months; or 2) obtained at any time and ongoing communications have been sent to the individual over the course of the preceding 12 months. 

H. “Privacy Notice” means the Company’s Privacy Notice located at https://www.campaignmonitor.com/policies/#privacy-policy, as updated from time to time.

I. “Spam”, as used herein, is any message sent by a User: 1) to an individual who has not given the User their Permission to do so; and/or 2) is marked as “spam” or “junk” mail by the  recipient, including via any ISP feedback loops.

J. “Transactional Messages” will have the meaning ascribed by Anti-Spam Laws.

K. “Transactional Email Feature” means the feature of the Services that allows a User to automatically send communications upon the occurrence of a trigger action.

SECTION 2. REQUIRED CONTENT

A. Customer understands and agrees that Customer is the “sender” (as that term is defined by Anti-Spam Laws) of any emails sent by Customer via the Services. 

B. Unsubscribe Link. Unless expressly agreed by Company in advance in writing, Customer must ensure that all emails sent through Customer’s Account contain a Company (or other Company-approved) “unsubscribe” link, in form and substance satisfactory to Company, that: 1) allows Contacts to instantly and permanently unsubscribe themselves from the applicable Customer List, 2) presents unsubscribe instructions in a clear and conspicuous way, and 3) remains operational for a period of 30 days after sending the email. Customer must monitor, correct, and process unsubscribe requests immediately and ensure that Users do not remove, disable or attempt to remove or disable such link. Customer understands that instead of using the unsubscribe link provided, some Contacts may use other means to submit a request to Customer to opt them out of receiving such messages. In such cases, Customer agrees to unsubscribe any such Contact manually, by changing the Contact's mailing status to "opt-out" within 10 business days of the opt-out request using the tools provided inside Customer’s Account. 

C. Contact Information. Each email must clearly and accurately identify the individual or organization that authorized the sending of the email (“Authorizing Party”). This means that if Customer is sending messages on behalf of an Authorizing Party, the Authorizing Party must be identified. For example, if a marketing agency is sending an email on behalf of its client, the client must be identified. To the extent required by law, identification must include the correct legal name of the Authorizing Party, a registered business number, legitimate physical address, and contact details. All identification information should remain valid for at least 30 days after the email is sent. 

D. Other Required Information. Customer shall ensure that communications sent through Customer’s Account are truthful and include subject lines that are in no way false or misleading as to the nature of the content contained in the email. All emails must state the reason the Contact is receiving the message. For example, “You are receiving this message from ABC Company because you signed up for our email list at abc.com.”

SECTION 3. PERMISSION

A. Customer Representations. Customer represents and warrants that Customer has provided all disclosures required by Law in conjunction with obtaining Contact’s Permission. Customer further represents and warrants that Customer has not used any false or misleading information, names, email addresses, subject lines, or other information for the purpose of or in connection with obtaining Contact’s Permission. 

B. Obtaining Permission. Customer must retain records of any Permissions received and shall provide such records to Company immediately upon request. Permissions must be obtained in one of the ways described below. A Contact:

i.  fills out or opts in via a web form subscribing to receive marketing communications from Customer; provided that the form does not contain any pre-selected fields;

ii.  completes an offline form that expressly indicates their willingness to receive marketing communications from Customer;

iii.  gives Customer their business card; provided that Contact was informed that by providing the business card to Customer, Contact was indicating their willingness to receive marketing communications from Customer; 

iv.  has a clear relationship with Customer, as an individual that (a) pays dues or a subscription fee to belong to Customer’s organization, or (b) has purchased a good or service from Customer within the preceding 6 months, in the course of which Customer obtained that Contact’s email address and there is a reasonable expectation that the Contact would consent to receiving emails; or

v.  otherwise provides Customer with their express written permission to receive marketing communications from Customer.

C. Scope of Permission. Customer shall not send emails to Contacts on any topic that exceeds the scope of the topic that Contact has given Customer Permission to email them about. Where a Contact has provided Permission for specific individual or organization to contact them, that Permission may not be transferred to another individual or organization. Any Permission obtained from a Contact will be exclusive to Customer and will not extend to Customer’s Affiliates, unless such Permission was also granted to such Customer Affiliate. 

SECTION 4. APPROVALS, RESTRICTIONS, & COMPLIANCE

A. Account Approval. Company may request specific information about Customer’s Permission practices and email marketing activities prior to allowing access to the Services and Company’s sending infrastructure. Should Company’s trained compliance team, in its reasonable discretion, find cause to delay or withhold access, to the Services and Company’s sending infrastructure, Customer will be notified promptly. Customer may not send any emails using the Services until Customer’s Account has been reviewed by a member of Company’s trained compliance team. 

B. Bulk Uploads. Prior to any bulk and/or large Contact list uploads to the Services, Customer must obtain Company’s prior written approval, which may be withheld in Company’s sole discretion.

C. Company API. The Services provide API Calls (“Calls”) to facilitate certain account activities without relying on the Services’ main application interface. These Calls are governed by the same policies set forth herein. The Customer and its Users shall not use the API to circumvent Company's efforts to facilitate Permission-based sending via the Services. Company may dictate, in its sole discretion, permissible use of the API and Calls. Any improper use of the API, as solely determined by Company, will be grounds for immediate termination of Customer's account.

D. Prohibited Uses. There are some list collection methods, sending practices, and models of business which are irreconcilably at odds with Company’s Permission policy or which represent untenable risk to the reputation of Company’s sending infrastructure. Customer shall not:

i.  mail to Distribution Email Addresses, emails addresses copied or scraped from the internet (or to Contact email addresses otherwise programmatically obtained from any physical or electronic source); newsgroups, or purchased, loaned, or rented lists;

ii.  mail to any Contacts obtained from a third party (unless such third party specifically obtained Permission from the Contact for Customer to mail them);

iii.  mail to co-promotion lists, where more than one potential sender is given access to email addresses collected without the recipient’s willful, sender-specific consent; 

iv.  use the Transactional Email Feature to send non-Transactional Messages to Contacts unless you have Permission to do so; 

v.  use the Services to administer illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or otherwise conduct any illegal activities; or

vi.  take known demographic information and append it to information Customer obtains from a third party for the purpose of emailing an individual who has not otherwise provided Permission as required by this Anti-Spam Policy.

E. Compliance. Customer acknowledges that the Services allow Customer to upload data related to Contacts and also to track Contacts engagement with emails sent using the Services. Customer represents and warrants that Customer has complied with all notice, disclosure, consent, and other requirements imposed by applicable Laws prior to uploading information about a Contact to Customer’s Account. Customer further represent and warrants that Customer shall comply with the Acceptable Use Policy, Agreement, and all applicable Laws in connection with Customer’s use of the Services. 

SECTION 5. COMPANY’S RIGHTS AND OBLIGATIONS

A. Contacts. Company will not use Contacts’ information for any purpose other than those related to the Services and as otherwise described in Company’s Privacy Notice.

B. 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 Anti-Spam Policy.  In connection with the foregoing, Customer agrees to promptly provide records and/or other information requested by Company. In addition, Company reserves the right, but has no obligation, to:

i.  scan every campaign for the existence of an unsubscribe link. If an unsubscribe link is not detected, Customer will be informed and required to include Company’s unsubscribe link before sending additional email messages or Customer Content via the Services.

ii.  monitor and meter the number of kilobytes of data transferred when sending email messages.

iii.  monitor any and all Customer Content and Customer’s use of the Services to ensure compliance with this Anti-Spam Policy.

C. Abuse Complaints & Remediation. Emails sent through the Services may generate abuse complaints from Contacts. Customer is responsible for ensuring that email campaigns sent from Customer’s Accounts do not generate a number of complaints in excess of industry norms. If Customer’s complaint rate exceeds industry norms, Company may take action to prevent or repair damage to the sending reputation of its sending infrastructure, including suspending Customer’s Account. In the event that Company sends Customer a notification regarding excessive spam complaints, Customer must respond to Company’s requests promptly and act in good faith by participating in the creation and/or execution of any remedy. If Customer is unresponsive, does not implement remediation measures in accordance with Company’s recommendations within thirty (30) days of Company’s notification to Customer, and/or Customer continues to experience high complaint rates (as determined by Company in its reasonable discretion), then Company may suspend Customer’s use of the Services until the issue is resolved or until the end of the period specified by the contract.

D. Right to Terminate. Company may, in its reasonable discretion, remove any Customer Content, suspend, or terminate (without refund) Customer’s use of the Services for any actual breach of this Anti-Spam Policy at any time. For clarity, removal, suspension, or termination pursuant to this clause will not terminate Customer’s obligation to pay fees owed to Company. 

If you feel you have received SPAM from our customer, write to us at [email protected]. If we find that our anti-SPAM policy has been violated, we may terminate the violator’s account.

Last Updated on September 20, 2022

As of January 19, 2023, Campaign Monitor’s privacy notice, including information about our use of cookies, has moved to https://meetmarigold.com/privacy-notices/. Please note that, for the https://www.campaignmonitor.com/ website, there have been no changes to the nature, scope, or duration of the processing of personal data. Under the new Marigold website, we have created two unique privacy notices:

1. The Site Privacy Notice. This notice continues to provide information regarding Marigold and Marigold entities’ processing of your personal data as a prospect, customer, applicant, or otherwise where we are a data controller.
2. The Services Privacy Notice. This notice generally provides information on how our Services, as defined in the Services Agreement, process personal data, both where Marigold and Marigold entities are a data processor and a data controller.

To find information about the cookies we use or manage your cookie preferences, please go to the TrustArc Cookie Preferences page found in the footer of this site. If you have any questions about either notice, or anything else related to the privacy of personal data processed by Marigold and its affiliates, please contact us at [email protected]

March 8, 2023

LAST UPDATED: October 29, 2018

This Cookie Notice explains how and why Campaign Monitor Pty Ltd (collectively “Campaign Monitor”, "we", "us", and "ours") uses cookies and similar technologies to recognise you, as well as track and analyse your actions when you visit our websites at campaignmonstg.wpengine.com ("Websites"). We also provide information related to how and why those same technologies are applied to tracking and analysing logged-in users of our software application (“Services”) and recipients of emails sent through our Services by users of our Services.  Information about what these technologies are and why we use them, as well as your rights to control our use of them, can be found below.

What are cookies?

Cookies are small data files that are placed on your computer or mobile device when you visit a website.  Cookies are widely used by website owners in order to make their websites work, or to work more efficiently, as well as to provide reporting information.

We refer to cookies created by us as "first party cookies".  We refer to cookies that we set on our website but that are created by parties other than us as "third party cookies".  Third party cookies enable third party features or functionality to be provided on or through the website (e.g. like advertising, interactive content and analytics).  The parties that provide these third party cookies can recognise your computer both when it visits the website in question and also when it visits certain other websites.

Why we use cookies

We use both first and third party cookies for several reasons. First, let’s look at the broad categories of first and third party cookies in use on our sites:

• Essential website cookies: These cookies are strictly necessary to provide you with services available through our Websites and to use some of its features, such as access to secure areas. Refusal of these cookies may impact website functionality.
• Performance and functionality cookies: These cookies are used to enhance the performance and functionality of our Websites but are non-essential to their use.  However, without these cookies, certain functionality may become unavailable.
• Analytics and customisation cookies: These cookies collect information that is used either in aggregate form to help us understand how our Websites are being used or how effective are marketing campaigns are, or to help us customise our Websites for you.
• Advertising cookies: These cookies are used to make advertising messages more relevant to you.  They perform functions like preventing the same ad from continuously re-appearing, ensuring that ads are properly displayed for advertisers, and in some cases selecting advertisements that are based on your interests.
• Social networking cookies: These cookies are used to enable you to share pages and content that you find interesting on our Websites through third party social networking and other websites.  These cookies may also be used for advertising purposes too.

FIRST PARTY COOKIES

THIRD PARTY COOKIES

How to control the use of cookies

Electronic devices and software applications on these devices may offer you tools to opt out of or block advertisements on the device or in specific applications. Consult the help documentation and settings specific to your devices and applications to learn more about your options. You have the right to decide whether to accept or reject cookies. You can withdraw your consent for any of the cookies listed in the tables above by deleting them from your device. Should you choose to remove or block cookies, some website functionality may become unavailable or unreliable.

In addition, most advertising networks offer you a way to opt out of targeted advertising.  If you would like to find out more information, please visit https://www.aboutads.info/choices/ or https://www.youronlinechoices.com.

Other Tracking Technologies

Other than the cookies listed above, we have also implemented page tags (sometimes known as web beacons) and other tracking technologies within certain parts of our Websites and Services.

Page tags and web beacons. These technologies are used for the purposes of tracking visitors as they navigate our Websites to better understand Website performance, and to measure the performance of online advertising. Recipients of emails sent by our customers through our Services are also tracked using this technology. For example, web beacons track whether an email sent through the Services was delivered and opened and whether links within the email were clicked. This information is collected for the purposes of providing email campaign performance information and measuring the performance of email messages they send and is processed according to our Privacy Notice.

Local and session storage. Our website uses local and session storage to temporarily store information to improve user experience while interacting with the website.

This Privacy Notice also contains specific information about the rights of data subjects residing in the EEA and how to exercise them.

Updates to this Cookie Notice

Campaign Monitor will periodically make amendments to this policy, as necessitated by changes to our use of cookies and the legal requirements for notice of these uses. Please continue to check this policy regularly to stay aware of these changes and how they affect your continued use of our websites.

The date at the top of this Cookie Notice indicates when it was last updated.

Questions?

If you have any questions about our use of cookies or other technologies, please email us at [email protected].

1. The purpose of this Safe Harbor Policy is to create a process that enables security research into our systems while preserving a regularized method of compensating security researchers for their efforts to improve our systems.
2. We want you to responsibly disclose through our Vulnerability Disclosure Program, and don't want researchers put in fear of legal consequences because of their good faith attempts to comply with our bug bounty policy. If in doubt, ask us before engaging in any specific action you think might go outside the bounds of our policy.
3. Because both identifying and non-identifying information can put a researcher at risk, we limit what we share with third parties, as further described below.
4. If your security research as part of the bug bounty program violates certain restrictions in our site policies, the safe harbor terms permit a limited exemption.

1. Safe Harbor Terms

We consider vulnerability research conducted according to this policy to be:

1. Exempt as authorized under any applicable anti-hacking laws, and we will not initiate or support legal action against you for accidental, good-faith violations of this policy;
2. Exempt as authorized under any relevant anti-circumvention laws, and we will not bring a claim against you for circumvention of technology controls;
3. Exempt from restrictions in our Terms of Service (TOS) and/or Acceptable Usage Policy (AUP) that would interfere with conducting security research, and we waive those restrictions on a limited basis; Except:
   1. Where the use of services puts an excessive burden on the bandwidth of our services or compromises their performance;
4. Lawful, helpful to the overall security of the internet, and conducted in good faith.

You are expected, as always, to comply with all applicable laws. If legal action is initiated by a third party against you and you have complied with this policy, we will take steps to make it known that your actions were conducted in compliance with this policy.

2. Third Party Safe Harbor

If you submit a report through our bug bounty program which affects a third party service, we will limit what we share with any affected third party. We may share non-identifying content from your report with an affected third party, but only after notifying you that we intend to do so and getting the third party's written commitment that they will not pursue legal action against you or initiate contact with law enforcement based on your report.

Please note that we cannot authorize out-of-scope testing in the name of third parties, and such testing is beyond the scope of our policy. Refer to that third party's bug bounty policy, if they have one, or contact the third party either directly or through a legal representative before initiating any testing on that third party’s systems or services. This is not, and should not be understood as, any agreement on our part to defend, indemnify, or otherwise protect you from any third party claim based on your actions.

That said, if legal action is initiated by a third party, including law enforcement, against you because of your participation in this bug bounty program, and you have complied with this Safe Harbor Policy and have not acted in bad faith, upon your written request, we will inform the third party that your actions were conducted in compliance with this Safe Harbor Policy.

3. Limited Waiver of Other Site Policies

If at any time you have concerns or are uncertain whether your security research is consistent with this Safe Harbor Policy, please submit a report in advance as set forth in the security text file located here.

Note that the Safe Harbor applies only to legal claims under our control; it does not bind independent third parties.

Last updated on February 23, 2022