PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES AVAILABLE AT WWW.ANDERSONOM.CO.ZA (the “Site”). IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
This Agreement takes effect on the earliest of You: 1) clicking a box to create an account (“Create My Account”) presented with a link to this Agreement, 2) executing or electronically accepting an Ordering Document referencing this Agreement, or 3) using of 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 eighteen (18) years old;
2. complete the registration process;
4. provide true, complete, and up to date contact information to Anderson Online Marketing (Pty) Ltd.
By using the Services, You represent and warrant that You meet all the requirements listed above. Anderson Online Marketing (Pty) Ltd may refuse to provide the Services, suspend or close Your account, and change eligibility requirements at any time in accordance with the terms of this Agreement. If You have any questions, feel free to send an email to email@example.com and a Anderson Online Marketing (Pty) Ltd representative will contact You shortly.
SECTION 1: DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:
A. “Add-On Features” has the meaning ascribed in Section 2.C.
B. “Additional Terms” has the meaning ascribed in Section 2.C.
C. “Administrator” has the meaning ascribed in Section 4.B.i.1.
D. “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of a party or the right to receive more than fifty percent (50%) of the profits or earning of the entity.
E. “Beta Features” has the meaning ascribed in Section 3.C.
F. “End Clients” has the meaning ascribed in Section 4.A.i.
G. “EU Directive” means EU Data Protection Directive 95/46/EC.
H. “Full Access User” has the meaning ascribed in Section 3.D.i.
I. “Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property 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.
J. “Law(s)” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority, including where applicable, the EU Directive. Where relevant to the Customer’s or User’s obligations, when assessing “applicability”, Customer and User shall take into account the Governing Law in Section 16 and the Laws relating to both the jurisdiction where User is using the Services and the jurisdiction where the Subscriber resides.
K. “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.
L. “Order Term” means the period specified in an Ordering Document (including any renewals of the same) during which Customer will have access to the Services.
M. “Ordering Document” means any form (including an electronic form), either executed by the Parties or agreed to by the Customer online, that sets out the commercial terms of Customer’s purchase. All Ordering Documents shall be deemed to incorporate, and shall be subject to and governed by, this Agreement.
N. “Services” means the Site, Software, Statistical Data, products, services (including any applicable support services), applications, tools and other resources made available by Anderson Online Marketing (Pty) Ltd or accessible at campaignmonitor.com (or other website(s) owned by Anderson Online Marketing (Pty) Ltd) and all related product and service names, logos, design marks, slogans, and all other material comprising the Site, Services, and Software.
O. “Software” means any software, documentation, or data related to the Services.
P. “Statistical Data” has the meaning ascribed in Section 5.C.
Q. “Sub-Account” has the meaning ascribed in Section 4.C.
R. “Subprocessor” means a service provider that processes data on behalf of, and as dictated by, Anderson Online Marketing (Pty) Ltd.
S. “Subscriber” means any individual: 1) whose email address is included in a Subscriber List, 2) whose information is stored on or collected via the Services, or 3) to whom Users send emails to or otherwise engage or communicate with via the Services.
T. “Subscriber List” is a list of Subscribers uploaded to the Services or created on or via the Services.
U. “Subscription Tier” has the meaning ascribed in Section 8.B.
V. “Subscription Plan” means the subscription type chosen by the Customer on an Ordering Document which sets out the base set of Services ordered by the Customer. Different Subscription Plans shall have different Services associated with them as further described here: Anderson Online Marketing (Pty) Ltd Pricing and Plan Comparison.
W. “Third Party Applications” means any software, products, tools, or applications that are used in connection with the Services that are not owned by Anderson Online Marketing (Pty) Ltd.
X. “User” means any person accessing and/or using the Services through Customer’s or End Clients’ account.
Y. “User Content” means anything, excluding Statistical Data, Users or Subscribers post, upload, share, store or otherwise provide through or using the Services (including, without limitation, any and all emails, messages, materials, images, text, and other content).
SECTION 2: AGREEMENT STRUCTURE
1. Anti-Spam Policy,
3. Additional Terms,
4. Agreement, and
5. Ordering Document.
The above order of precedence will apply unless: 1) the conflicting term is expressly stated to vary the conflicting provision of the controlling document; 2) the controlling document specifically provides that a lower order document may vary the relevant term of the controlling document; or 3) the Parties expressly agree otherwise. All rights not expressly granted herein are reserved by Anderson Online Marketing (Pty) Ltd.
B. Agreement Modifications. This Agreement was last modified on the date listed at the end of this Agreement (“Last Modified Date”). Anderson Online Marketing (Pty) Ltd may make modifications to this Agreement by posting a revised Agreement on the Site and/or by sending an email to a Full Access User (or Administrator, if applicable). 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 shall become effective on the Last Modified Date, and that it is Customer’s responsibility to check this website regularly for modifications to this Agreement. No modification, addition, deletion or waiver of any rights under this Agreement will be binding on Anderson Online Marketing (Pty) Ltd unless signed by a duly authorized representative of Anderson Online Marketing (Pty) Ltd. To the extent the provisions of this Section 2.B are held unenforceable, they shall be modified or severed in accordance with Section 16.I.
C. Additional Terms. Additional terms may apply to add-on features, Beta Features, and/or any managed services (each an “Add-On Feature”) offered by Anderson Online Marketing (Pty) Ltd. These additional terms, available at andersonom.co.za/legal, will be considered incorporated into this Agreement when Customer, a Full Access User, or an Administrator activates the Add-On Feature or purchases an Add-On Feature on an Ordering Document (the “Additional Terms”). Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will prevail to the extent of the conflict.
SECTION 3: SERVICES, OBLIGATIONS, AND RESTRICTIONS ON USE
A. Modification of the Services. Subject to Section 13.C, Anderson Online Marketing (Pty) Ltd, 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.
B. Prerequisite to Use of Services. Customer is responsible for obtaining all hardware, software and services, which are necessary to access the Services.
C. Beta Features. From time to time, Anderson Online Marketing (Pty) Ltd may make certain services and/or features available to Customer for use which are still in their beta stage (“Beta Features”). Customer acknowledges and agrees that Beta Features have not been fully tested and are provided on an ‘as is’ basis. Customer further acknowledges and agrees that, to the fullest extent permitted by Law, Anderson Online Marketing (Pty) Ltd makes no representations, warranties or guarantees in relation to such Beta Features.
D. Customer’s Obligations. Customer agrees to:
i. when using the Business or Organization version of the Services, designate at least one User within Customer’s account to have ‘Full Client Access’ who will have administrative privileges within the account and who Customer represents and warrants is authorized to act on behalf of Customer (a “Full Access User”);
ii. keep contact information for the Full Access User updated and promptly respond to queries from Anderson Online Marketing (Pty) Ltd sent to the Full Access User’s email address;
iii. be responsible for Users’ compliance with this Agreement;
iv. be solely responsible for the accuracy, quality, integrity and legality of the User Content and of the means by which Customer acquires User Content;
v. be responsible for the nature and content of all of the User Content (including all content, materials, and information that Users, End Clients, and/or Subscribers upload and/or transmit using or relating to the Services);
vi. use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Anderson Online Marketing (Pty) Ltd promptly of any such unauthorized access or use;
vii. 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;
ix. procure that each User complies with the terms of this Agreement as if they were a party to it, including but not limited to, the Anti-Spam Policy; and
x. use the Services only in accordance with this Agreement and Laws.
E. Restrictions on Use. Except where the following restrictions are prohibited by Law, Customer shall not, and shall not permit any Users or third parties to, directly or indirectly: (1) violate the Anti-Spam Policy; (2) send or forward personal mail through the Services; (3) send mail created using the Services through another service; (4) send emails to individuals under the age of 13; (5) upload or provide any 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 (collectively, “Sensitive PII”) to the Services or use the Services to collect, transfer, or store any Sensitive PII; (6) host images or content on Anderson Online Marketing (Pty) Ltd servers or through Anderson Online Marketing (Pty) Ltd’s Services for any purpose other than for the sending of email campaigns; (7) send or transfer any message through the Services that is greater than 300 Kilobytes or use the Services in any other manner that puts an excessive burden on the bandwidth of the Services; (8) delete, bulk unsubscribe, or otherwise alter or modify Subscriber Lists in order to evade billing thresholds; (9) use the Transactional Email Feature to send bulk commercial emails; (10) copy, modify, distribute, translate, or create derivative works of the Services or any part of Anderson Online Marketing (Pty) Ltd’s Services; (11) except as specifically permitted by this Agreement, sell, resell, rent, or lease the Services or any part of Anderson Online Marketing (Pty) Ltd’s Services; (12) 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; (13) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (14) remove trademark, logo, copyright or other proprietary notices or labels from the Services or any Software; (15) use the Services to store or transmit material in violation of any third party rights, including intellectual property and privacy rights; (16) use the Services to store or transmit Malicious Code; (17) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (18) hack, violate, attempt to violate, attempt to gain unauthorized access to the Services or their related systems or networks; or (19) use the Services for timesharing or service bureau purposes.
SECTION 4: RESELLING THE SERVICES
A. Provision of Reseller Services. Anderson Online Marketing (Pty) Ltd 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, Anderson Online Marketing (Pty) Ltd may, in its sole discretion, revoke Customer’s permission to resell the Services at any time.
B. Conditions of Resale. Customer acknowledges and agrees that Customer’s resale of the Services to End Clients is subject to the following conditions:
i. Customer agrees:
1. when using the Creative Agency (or Reseller) version of the Services, to designate at least one User within Customer’s account who will have administrative privileges within the account and who Customer represents and warrants is authorized to act on behalf of Customer (the “Administrator”);
2. to keep contact information for the Administrator updated and promptly respond to queries from Anderson Online Marketing (Pty) Ltd sent to the Administrator’s email address;
3. to set up a separate password-protected account which, unless otherwise agreed by the End Client, may be accessed only by that End Client;
4. to 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;
5. to educate End Clients on terms related to the assessment of fees for use of the Services, particularly as they relate to Subscription Tiers and Usage-Based Features as these may be incurred without Administrator intervention;
6. not to represent itself as an agent or employee of Anderson Online Marketing (Pty) Ltd nor make any representations regarding Anderson Online Marketing (Pty) Ltd, on Anderson Online Marketing (Pty) Ltd’s behalf, or about any of the Services;
7. to enter into binding contractual relationships with each End Client that requires the End Client to comply with the terms of this Agreement as if they were a party to it (“End Client Agreements”) and enforce implementation of such End Client Agreements;
9. in the event that the End Client intends to transfer personal information via the Services, to ensure compliance with Laws with respect to that transfer.
ii. Customer further agrees that End Clients’ Access to, and use of, the Services does not in any way diminish:
1. Customer’s strict obligation to ensure Users’ compliance with the terms of this Agreement;
2. Anderson Online Marketing (Pty) Ltd’s right to enjoy the benefits of the disclaimers set forth in Section 3.C (Beta Features), Section 10 (Third Party Applications) and Section 11 (Disclaimers) of this Agreement; and
3. Anderson Online Marketing (Pty) Ltd’s right to enforce the terms of this Agreement, including, without limitation, Anderson Online Marketing (Pty) Ltd’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.
iii. Payment of Fees 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 Anderson Online Marketing (Pty) Ltd the standard fees Anderson Online Marketing (Pty) Ltd 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 Anderson Online Marketing (Pty) Ltd 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.
iv. Payment of Fees Directly to Anderson Online Marketing (Pty) Ltd. If Customer elects to have the End Client pay fees directly to Anderson Online Marketing (Pty) Ltd, Customer agrees that Anderson Online Marketing (Pty) Ltd is entitled to deduct the standard fees Anderson Online Marketing (Pty) Ltd 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, Anderson Online Marketing (Pty) Ltd will be the final arbitrator of any such fee-related disputes. If an End Client fails to pay Anderson Online Marketing (Pty) Ltd for fees incurred by such End Client, Customer shall be responsible for payment to Anderson Online Marketing (Pty) Ltd of applicable fees within 30 days of email or other written notice to Customer.
v. Refunds to End Client. If Anderson Online Marketing (Pty) Ltd is required to refund any fees to End Client for any reason, Customer shall reimburse Anderson Online Marketing (Pty) Ltd the full amount that Customer received for resale to that End Client.
vi. Audit Rights. Anderson Online Marketing (Pty) Ltd may audit Customer’s compliance with this Section 4.B. Customer agrees to promptly provide Anderson Online Marketing (Pty) Ltd with its End Client Agreements and other documentation reasonably requested to Anderson Online Marketing (Pty) Ltd.
C. Disputes Within Customer’s Account. If an End Client contacts Anderson Online Marketing (Pty) Ltd for access to a sub-account within Customer’s account (a “Sub-Account”) or the retrieval of User Content in such Sub-Account, Anderson Online Marketing (Pty) Ltd will first make an attempt to notify an Administrator via email and request Customer’s express permission to grant the End Client access to the relevant Sub-Account. If such Administrator does not respond within 5 days, Anderson Online Marketing (Pty) Ltd may, but is not obligated to, use reasonable discretion to determine who owns the Sub-Account or the User Content in such Sub-Account based on the User Content and Users in that Sub-Account. If Anderson Online Marketing (Pty) Ltd is able to discern with reasonable certainty that such End Client is the owner of the User Content in the Sub-Account in issue, Anderson Online Marketing (Pty) Ltd may, at the request of the End Client, transfer the User Content or the entire Sub-Account into a separate standalone Anderson Online Marketing (Pty) Ltd account and provide End Client with full administrative control of such account. If Anderson Online Marketing (Pty) Ltd is unable to make such a determination, then End Client will need to produce a court order from a court exercising competent jurisdiction to gain access to the sub-account in question.
D. Indemnification for End Clients. Notwithstanding any of the foregoing, Customer remains fully liable and responsible for any breaches of this Agreement by End Clients and its Users. Customer hereby agrees to defend, indemnify, and hold Anderson Online Marketing (Pty) Ltd, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from and against all costs, expenses, losses and liabilities arising in any way (including to the maximum extent permitted under statute, the law of tort (including negligence), equity or any other theory of law whatsoever) from or in relation to use of the Services by End Clients and/or its Users and all other acts and omissions thereof in connection to the Services.
SECTION 5: OWNERSHIP AND INTELLECTUAL PROPERTY
A. Customer’s Property. By using the Services or submitting any User Content through the Services, Customer hereby grants Anderson Online Marketing (Pty) Ltd and its Subprocessors 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, and prepare derivative works of the User Content in connection with the Services. For clarity, the foregoing license granted to Anderson Online Marketing (Pty) Ltd and its Subprocessors, does not affect Customer’s (or its End Clients’) ownership or license rights in its User Content unless otherwise agreed in writing. Customer represents and warrants that Customer has all rights to grant such licenses to Anderson Online Marketing (Pty) Ltd and its Subprocessors 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. In addition, while using the Services, Customer may provide information (such as Customer’s name, contact information, and/or other registration information) to Anderson Online Marketing (Pty) Ltd. Customer agrees to, and agrees and warrants that it has the necessary consents to, permit Anderson Online Marketing (Pty) Ltd to use this information and any technical information about Customer’s use of the Services to tailor the user experience of the Services to Customer, to facilitate Customer’s use of the Services, and to communicate with Customer.
B. Anderson Online Marketing (Pty) Ltd Property. Customer acknowledges and agrees that the Services are the property of Anderson Online Marketing (Pty) Ltd or its affiliates, licensors or suppliers. Unless stated otherwise, all Services are protected as the copyright, trade dress, trademarks and/or other intellectual properties owned by (or licensed to) Anderson Online Marketing (Pty) Ltd. Customer is not authorized to use any of the Services in any advertising, publicity or any other commercial manner without the prior written consent of Anderson Online Marketing (Pty) Ltd. 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 Anderson Online Marketing (Pty) Ltd or its third party suppliers, as applicable.
C. Statistical Data. Notwithstanding anything to the contrary in this Agreement or elsewhere, Anderson Online Marketing (Pty) Ltd may monitor, analyze, and compile statistical and performance information based on and/or related to Customer’s use of the Services, in an aggregated and anonymized format (“Statistical Data”). Customer agrees that Anderson Online Marketing (Pty) Ltd may make such Statistical Data publicly available, provided that it: 1) does not contain identifying information; and 2) is not compiled using a sample size small enough to make the underlying data identifiable. Anderson Online Marketing (Pty) Ltd 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.
D. Feedback. Customer may provide feedback, suggestions, and comments to Anderson Online Marketing (Pty) Ltd regarding the Services (“Feedback”). Anderson Online Marketing (Pty) Ltd shall have all ownership right, title, and interest in such Feedback. Notwithstanding the foregoing, to the extent that any Feedback is deemed to be owned by Customer, Customer hereby grants to Anderson Online Marketing (Pty) Ltd 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, provided that such Feedback is anonymous.
E. Publicity. Unless otherwise agreed by the parties, Customer hereby agrees that Anderson Online Marketing (Pty) Ltd may reference Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants Anderson Online Marketing (Pty) Ltd a perpetual, nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing.
SECTION 6: CONFIDENTIALITY
The Parties acknowledge that in the course of performing their obligations under this Agreement, each party (a “Recipient”) may receive information that is either clearly marked as “confidential” or nonpublic information which, under the circumstances surrounding the disclosure, a reasonable person would conclude should be treated as confidential (“Confidential Information”) from the other party (a “Discloser”). 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 exercise its rights under this Agreement and who are bound by confidentiality obligations, 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. 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.
SECTION 7: PRIVACY AND SECURITY
B. HIPAA and PHI. Customer understands and acknowledges that the Services are not configured to receive and store personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and that Anderson Online Marketing (Pty) Ltd is neither a “Covered Entity” nor a “Business Associate,” as those terms are defined in HIPAA. As such, Customer agrees not to, and not to permit Users to, transmit, request, provide access to, submit, store, or include any PHI through the Services. Customer agrees that Anderson Online Marketing (Pty) Ltd may terminate this Agreement immediately if Customer is found to be in violation of this Section 7.B.
C. EU Personal Data Transfer. In the event that Customer intends to transfer the Personal Data of an EU Data Subject, Customer shall notify Anderson Online Marketing (Pty) Ltd and the parties shall execute Anderson Online Marketing (Pty) Ltd’s Data Protection Addendum incorporating the EU Standard Contractual Clauses provided by Anderson Online Marketing (Pty) Ltd. Once executed, such Data Protection Addendum will be deemed wholly incorporated into this Agreement.
D. User Passwords. Customer is solely responsible for keeping Customer’s 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 Anderson Online Marketing (Pty) Ltd immediately of any unauthorized access or use of Customer’s or End Clients’ account. Anderson Online Marketing (Pty) Ltd will not be held responsible or liable for any losses due to lost or hacked passwords.
SECTION 8: FEES
A. Payment of Fees. Anderson Online Marketing (Pty) Ltd shall charge Customer, and Customer agrees to pay, all fees for Services in accordance with its Ordering Document, Subscription Plan, and Subscription Tier. Customer is responsible for reviewing the pricing schedule, features, and limits associated with its Subscription Plan and its Subscription Tier (available at campaignmonitor.com/pricing and also on the ‘Billing Page’ inside the application). Anderson Online Marketing (Pty) Ltd may, but is not obligated to, contact Customer to warn Customer that they have exceeded the included features or other limits of its current Subscription Plan or Subscription Tier.
B. 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 higher of: 1) the number of emails being sent (unless Customer’s plan includes unlimited emails), and 2) the number of Subscribers in the Customer’s Subscriber Lists (as determined by adding the number of Subscribers in each Subscriber List). Except as otherwise stated in Customer’s Ordering Document, if Customer exceeds the limits of its Subscription Tier, Anderson Online Marketing (Pty) Ltd 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 Subscriber Lists to ensure Customer is being charged at the appropriate Subscription Tier.
C. Subscription Plan Upgrade. If Customer, a Full Access User, or an Administrator accesses, uses, or activates any features which are only included in a higher-priced Subscription Plan or provides Users with access to the same, Anderson Online Marketing (Pty) Ltd 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.
D. Payment for Add-On Features. Customer may order Add-On Features at any time by using the Add-On Feature and/or executing an Ordering Document for the Add-On Feature. Customer agrees to pay fees associated with the applicable Add-On Feature for the remainder of the Order Term, and any renewals of the Order Term.
E. Usage-based Features. Customer acknowledges and agrees that fees for certain features of the Services may be assessed based on Users’ actual usage of those features (for example, fees are incurred every time a User runs a ‘Design and spam test’). Customer agrees to pay for Users’ usage of any such features.
F. Trial Account. If Customer sends emails through the Services while using a trial version of the Services, Customer agrees that Anderson Online Marketing (Pty) Ltd shall charge Customer, and Customer agrees to pay applicable fees whenever Customer sends a campaign to more than 5 recipients.
G. Payment Method. Unless otherwise listed on Customer’s Ordering Document, Customer agrees to pay Anderson Online Marketing (Pty) Ltd all applicable fees in U.S. Dollars (or such other currency as listed in Customer’s account page), up front via credit card, for Services Customer purchases or uses in accordance with the terms listed on Customer’s Ordering Document. Customer agrees to provide accurate payment information, and hereby authorizes Anderson Online Marketing (Pty) Ltd to charge such credit card for all fees set forth in the Ordering Document for the duration specified therein (and any renewal thereof). Payments are due for any billing period on the same date, or the closest date in that billing period, to the day Customer signed up for the Services and made its first payment. If any part of a billing period is included in the term, then payment is due for the full billing period.
H. Taxes. All fees stated in the Ordering Document are exclusive of any applicable taxes. Customer shall pay any sales, use, value added, excise, property withholding or similar tax, duties, and any related tariffs, and similar charges applicable to Customer’s purchase of the Services assessable by any local, provincial, federal, or foreign jurisdiction and shall include any related penalties or interest, except taxes based on Anderson Online Marketing (Pty) Ltd’s net income (“Customer’s Taxes”). 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 Anderson Online Marketing (Pty) Ltd hereunder. Customer will, and hereby agrees to, promptly reimburse Anderson Online Marketing (Pty) Ltd for any and all of Customer’s Taxes (and any applicable penalties) that Anderson Online Marketing (Pty) Ltd may be required to pay in connection with this Agreement upon receipt of Anderson Online Marketing (Pty) Ltd’s invoice.
I. Late Payment. If any amount due is not received by the due date, then without limiting Anderson Online Marketing (Pty) Ltd’s rights or remedies, Anderson Online Marketing (Pty) Ltd may (a) 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; (b) accelerate the payment of any fees payable; (c) immediately suspend Customer’s access to the Services until payment is made; (d) terminate Customer’s access to the Services provided that Anderson Online Marketing (Pty) Ltd gives Customer notice of non-payment and 10 business days opportunity to cure; and/or (e) condition future subscription renewals and orders on pre-payment or payment terms shorter than those specified in the Ordering Document.
J. Fees at Renewal. Anderson Online Marketing (Pty) Ltd reserves the right to change fees for any Services at the time of renewal and Customer is responsible for reviewing the fees charged by Anderson Online Marketing (Pty) Ltd prior to renewal, provided no fee change will be effective until renewal of that Service (unless the fees in the prior period were designated in the applicable Ordering Document as promotional or ‘one-time’). 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 downgrades or terminates its account in accordance with this Agreement.
K. Reactivation Fee. Anderson Online Marketing (Pty) Ltd may charge a re-activation fee to re-activate an account that has been suspended.
L. No Refunds. Except as otherwise provided in this Agreement or required by Law, Anderson Online Marketing (Pty) Ltd will not provide refunds or credits for partial or unused periods of service or mid-term downgrades.
SECTION 9: REPRESENTATIONS AND WARRANTIES
A. General Representations and Warranties. Customer represents and warrants that Customer:
i. has the legal power and authority to enter into this Agreement, and doing so will not violate any other agreement to which it is a party;
ii. will not transmit any Malicious Code in connection with the Services;
iii. will not violate the Anti-Spam Policy; and
iv. will use the Services only in compliance with this Agreement and Laws (including but not limited to policies and Laws related to spamming, privacy, obscenity, and defamation and Laws such as the HIPAA, GLB, EU Data Privacy Laws, the Australian Privacy Act and the Australian SPAM Act and other similar or Laws).
B. Personal Information. Customer further represents and warrants that:
. all personal information (including any Personal Data as defined in the EU Directive) provided by Customer to Anderson Online Marketing (Pty) Ltd (including, without limitation, that of Users and Subscribers) has been collected with the relevant individual’s consent;
i. Customer has informed all persons whose information is collected: 1) of the purpose for which that information was collected, 2) that Customer may provide this information to its vendors and/or service providers for the purposes of use in relation to the Services, and 3) that such information may be processed and/or stored by Customer’s vendors and/or service providers on servers located in the United States of America; and
ii. Customer has obtained the consent of such persons for processing of their personal information by its vendors and service providers in the foregoing manner.
SECTION 10: THIRD PARTY APPLICATIONS
A. Customer agrees and acknowledges that certain features of the Services depend on the continuing availability of Third Party Applications. If the providers of these Third Party Applications cease to make their services or programs available on reasonable terms, Anderson Online Marketing (Pty) Ltd may cease providing any affected features or services without entitling Customer to any refund, credit, or other compensation.
B. If Customer enables, installs, or connects any Third Party Applications for use with the Services, Customer hereby permits the transmission of and/or access to User Content to such Third Party Applications. Anderson Online Marketing (Pty) Ltd is not responsible for any disclosure, modification or deletion of User Content resulting from any such transmission to or access by Third Party Applications. Customer shall comply with any requests by Anderson Online Marketing (Pty) Ltd to remove any connections to or from other websites and/or applications to the Services which Customer installs without obtaining Anderson Online Marketing (Pty) Ltd’s prior written consent; and further that any consent by Anderson Online Marketing (Pty) Ltd for the foregoing shall not constitute Anderson Online Marketing (Pty) Ltd’s endorsement of such Third Party Application. Anderson Online Marketing (Pty) Ltd shall not be held responsible for any Third Party Applications Customer uses in connection with the Services.
SECTION 11: DISCLAIMERS
A. Anderson Online Marketing (Pty) Ltd agrees to make every reasonable attempt to make sure that all email messages sent through Anderson Online Marketing (Pty) Ltd’s Servers follow email standards, but Anderson Online Marketing (Pty) Ltd does not guarantee that messages will look consistent across all email platforms due to the number of different HTML composition tools available. For example, if Customer uses Microsoft Word to generate HTML email messages, it is expected that recipients of Customer’s message using a non-Microsoft email application may have difficulty reading Customer’s message.
B. From time to time, down-time, either scheduled or unscheduled, may occur in respect of the Services. Anderson Online Marketing (Pty) Ltd will work within reason to ensure the amount of down-time is limited. Customer releases Anderson Online Marketing (Pty) Ltd entirely of all responsibility for the consequences of any down-time.
C. Anderson Online Marketing (Pty) Ltd does not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. Customer agrees that use of all programs and files associated with the Services is at its own risk and Customer releases Anderson Online Marketing (Pty) Ltd entirely of all responsibility for any consequences of its use.
D. From time to time, Customer may obtain advice or information from Anderson Online Marketing (Pty) Ltd help or support pages, white papers, and/or Anderson Online Marketing (Pty) Ltd’s employees (collectively, “Advice”). Customer acknowledges and agree that such Advice will not be deemed to constitute financial, legal or tax advice. Customer should seek the advice of its own advisers prior to acting upon any such Advice. Customer acknowledges and agrees that any Advice is provided strictly “as is” and that Anderson Online Marketing (Pty) Ltd makes no warranty or representation of any kind regarding the accuracy or quality of such Advice. Customer agrees that use of and reliance on any such Advice is at its own risk and Customer releases Anderson Online Marketing (Pty) Ltd entirely of all responsibility for any consequences of its use of and reliance on any such Advice.
E. USE OF THE SERVICES AND ANY RELIANCE BY CUSTOMER UPON THE SERVICES, 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, ANDERSON ONLINE MARKETING (PTY) LTD 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 ARE PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW ANDERSON ONLINE MARKETING (PTY) LTD DISCLAIMS ALL WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
F. PLEASE NOTE THAT DOWNGRADING CUSTOMER’S ACCOUNT MAY RESULT IN THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF CUSTOMER’S ACCOUNT. ANDERSON ONLINE MARKETING (PTY) LTD DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES.
G. Subject to Section 13 (in particular, Section 13.C if Customer resides in Australia) and unless otherwise expressly set forth elsewhere in this Agreement, Customer’s sole and exclusive remedy for any failure or nonperformance of the Services shall be limited to, Anderson Online Marketing (Pty) Ltd (at its election): 1) using commercially reasonable efforts to adjust or repair the Services; 2) resupplying that Service; or 3) providing Customer with a refund for the amount actually received by Anderson Online Marketing (Pty) Ltd (exclusive of all taxes), for the relevant Services.
SECTION 12: INDEMNIFICATION
A. Customer Indemnity. Customer agrees to defend, indemnify and hold Anderson Online Marketing (Pty) Ltd, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from any third party claims, losses, damages, liabilities, settlements, and expenses, (including, but not limited to attorney fees) (collectively, “Claims”) related to, arising from, or connected with: 1) Customer or End Client’s use of the Services; 2) Customer’s breach of this Agreement or any representation or warranty made by Customer herein; 3) a Subscriber List or User Content (including, without limitation, Claims alleging that the User Content violates or misappropriates the Intellectual Property Rights or other rights of any third party); 4) Customer or End Client’s negligence or intentional misconduct; 5) any actual or alleged violation of Anti-Spam Policy by Customer or End Client; and/or 6) any violation of Law by Customer or End Client. Notwithstanding the foregoing, Customer shall not make any admissions on behalf of Anderson Online Marketing (Pty) Ltd or settle any claim without Anderson Online Marketing (Pty) Ltd’s consent, which will not be unreasonably withheld or delayed.
B. Anderson Online Marketing (Pty) Ltd’s Right to Defend. Promptly upon learning of any Claim arising from or related to allegations that the Services violate or infringe a third party’s Intellectual Property Rights (“IP Claim”), Customer shall give notice to Anderson Online Marketing (Pty) Ltd of any such IP Claim. Anderson Online Marketing (Pty) Ltd shall have the exclusive right, but no obligation, to assume defense of such IP Claim at any time and at any stage. If Anderson Online Marketing (Pty) Ltd assumes defense of any such IP Claim, Customer will, and will procure that its End Clients: 1) cooperate in the defense thereof as reasonably requested by Anderson Online Marketing (Pty) Ltd; and 2) immediately deliver to Anderson Online Marketing (Pty) Ltd all original notices and documents (including court papers) received in connection with and/or related to the IP Claim. Upon assuming the defense of an IP Claim, Anderson Online Marketing (Pty) Ltd may appoint any legal counsel selected by Anderson Online Marketing (Pty) Ltd and settle any IP Claims on such terms and conditions it deems advisable. Customer agrees that if Anderson Online Marketing (Pty) Ltd assumes the defense of the IP Claim, Anderson Online Marketing (Pty) Ltd will not be liable to Customer for any legal costs or expenses subsequently incurred by Customer in connection with the analysis, defense or settlement of such IP Claim. Customer acknowledges and agrees that the assumption of the defense of an IP Claim by Anderson Online Marketing (Pty) Ltd is not an acknowledgment, will not be construed as an acknowledgment, that Anderson Online Marketing (Pty) Ltd is liable to indemnify Customer in respect of the IP Claim, nor will it constitute a waiver by Anderson Online Marketing (Pty) Ltd of any defenses it may assert against the Customer if Customer claims it is owed indemnification for such IP Claim.
SECTION 13: LIMITATION OF LIABILITY
A. TO THE EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL ANDERSON ONLINE MARKETING (PTY) LTD BE LIABLE TO 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 USER CONTENT, OR LOSS OF ANY DATA RELATED THERETO, OR ANY 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), STRICT LIABILITY OR OTHERWISE, EVEN IF ANDERSON ONLINE MARKETING (PTY) LTD HAS BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT THE CONSIDERATION WHICH ANDERSON ONLINE MARKETING (PTY) LTD CHARGES HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY ANDERSON ONLINE MARKETING (PTY) LTD OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES.
B. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, ANDERSON ONLINE MARKETING (PTY) LTD 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 WILL ANDERSON ONLINE MARKETING (PTY) LTD’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE LESSER OF: SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN, OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING THE APPLICABLE CLAIM GIVING RISE TO LIABILITY. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT ANDERSON ONLINE MARKETING (PTY) LTD’S LIABILITY TO CUSTOMER AT LAW WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH CUSTOMER CONTRIBUTED TO THE LOSS. THE PARTIES ACKNOWLEDGE 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, WERE ANDERSON ONLINE MARKETING (PTY) LTD TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
C. If Customer Resides in Australia: Section 13.B does not apply so as to limit Anderson Online Marketing (Pty) Ltd’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 Anderson Online Marketing (Pty) Ltd for any liability, loss, cost or damage, however caused (including by the negligence of Anderson Online Marketing (Pty) Ltd), suffered or incurred by Customer because of Anderson Online Marketing (Pty) Ltd’s modification of the Services or failure to comply with a consumer guarantee when providing the Services is limited to, Anderson Online Marketing (Pty) Ltd (at its election): (a) resupplying that Service; or (b) paying the cost of having the Services supplied again. This Section 13.C does not apply if it is not fair or reasonable for Anderson Online Marketing (Pty) Ltd 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.
SECTION 14: TERM AND TERMINATION
A. 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 any use of the Services by a User. Except as otherwise specified in the applicable Ordering Document, the Ordering Document and all non-expiring items added during the course of the Order Term, shall automatically renew for additional periods equal in duration to the original Order Term or one year, whichever is shorter (unless such automatic renewal is prohibit by applicable Law), 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).
B. 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 Anderson Online Marketing (Pty) Ltd will not be liable to Customer or to any third party for termination of Customer’s or End Client’s access to the Services resulting from any violation of this Agreement by Customer and/or End Client. Anderson Online Marketing (Pty) Ltd may terminate this Agreement or any individual Ordering Document at any time in its sole discretion.
C. Right to Suspend. Anderson Online Marketing (Pty) Ltd 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 sole discretion, violates: 1) this Agreement or other agreements or guidelines which may be associated with Customer’s use of the Services; or 2) any Laws applicable to Customer’s use of the Services; or
c. If Customer does not log into its account for more than 700 days (“Inactive Account”). INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM ANDERSON ONLINE MARKETING (PTY) LTD’S DATABASE.
D. Effect of Termination. Upon expiration or termination of this Agreement: (a) Customer’s and End Clients’ right to use the Services shall cease, and Anderson Online Marketing (Pty) Ltd will have no further obligation to make the Services available to Customer or End Clients; (b) except as otherwise expressly stated herein, all rights and licenses granted to Customer and End Clients under this Agreement shall cease; (c) Customer will pay any unpaid fees incurred by Customer and/or End Clients for the remainder of the term under any applicable Ordering Document in effect prior to the termination date; and (d) Anderson Online Marketing (Pty) Ltd may delete any of Customer’s and/or End Clients’ archived data within 30 days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to Customer’s and/or End Clients’ data or information remain Customer’s responsibility.
E. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections: 4 (Reselling the Services), 5 (Ownership and Intellectual Property), 6 (Confidentiality), 8 (Fees), 9 (Representations and Warranties), 10 (Third Party Applications), 11 (Disclaimers), 12 (Indemnification), 13 (Limitation of Liability), 14.D (Effect of Termination), 14.E (Survival), 15 (U.S. Federal Government End User Provisions, to the extent applicable), and 16 (General Provisions).
SECTION 15: U.S. FEDERAL GOVERNMENT END USER PROVISIONS (IF APPLICABLE)
If the end user of the Services is the U.S. federal government (including any federal agency), then the following shall apply: (a) Government technical data and software rights related to the Services include only those rights described herein; and (b) if a government agency has a need for rights not conveyed under this Agreement, it must negotiate with Anderson Online Marketing (Pty) Ltd to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. The Services and Site, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.”
The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users:
i. only as Commercial Items,
ii. with the same rights as all other end users, and
iii. according to this Agreement.
SECTION 16: GENERAL PROVISIONS
A. Notices. Notices to Customer will be effective when Anderson Online Marketing (Pty) Ltd posts them to Customer’s account or sends them to the email address associated with a Full Access User (or Administrator, if applicable). Notices to Anderson Online Marketing (Pty) Ltd will be effective when delivered to Anderson Online Marketing (Pty) Ltd: Attn. Legal Notices, Anderson Online Marketing (Pty) Ltd, 631 Howard St, 5th Floor, San Francisco, CA, 94105, or any addresses as Anderson Online Marketing (Pty) Ltd may later post on the Site from time to time.
B. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No rights for third party beneficiaries are created by this Agreement.
C. 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 Anderson Online Marketing (Pty) Ltd. This Agreement may be assigned or transferred by Anderson Online Marketing (Pty) Ltd without the consent of the 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.
D. Force Majeure. Anderson Online Marketing (Pty) Ltd will not be liable for any delays or failure in performance of any part of the Services, from any cause beyond Anderson Online Marketing (Pty) Ltd’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.
E. 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 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 application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded from this Agreement.
F. Disputes. Customer and Anderson Online Marketing (Pty) Ltd 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.
G. Overseas Access. The Services may be accessed throughout Australia and overseas. Anderson Online Marketing (Pty) Ltd makes no representations that the Services comply with the Laws (including intellectual property Laws) of any country outside Australia. If Customer accesses the Services from outside Australia, it does so at its own risk and is responsible for complying with the Laws in the place where it accesses the Services.
H. Export Regulations. The Services made available by Anderson Online Marketing (Pty) Ltd may be subject to the export control Laws of the 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 U.S. government list of persons or entities prohibited from receiving exports; and (b) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
I. 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 in accordance with the foregoing, then that provision will be deemed severed from this Agreement and all other provisions will be unaffected and will remain in full force and effect.
J. Waiver. Any waiver by Anderson Online Marketing (Pty) Ltd must be in writing and signed by an authorized Anderson Online Marketing (Pty) Ltd representative. No waiver by Anderson Online Marketing (Pty) Ltd of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No failure or delay by Anderson Online Marketing (Pty) Ltd in enforcing any right or provision under this Agreement shall be construed as a waiver of such right or provision or of any other right or provision.
K. Interpretation and Execution. The headings in the Agreement do not affect its interpretation. References to sections are to sections of this Agreement. 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. A facsimile or electronic signature is deemed an original signature for all purposes under this Agreement and any Ordering Document.
ADVANCED SEGMENTATION BETA FEATURE TERMS
SECTION 1: DEFINITIONS
In addition to terms defined the Agreement, the following definitions will apply to capitalized words in these Advanced Segmentation Beta Feature Terms:
A. “Advanced Segmentation Beta Features” means the advanced offering that allows Customers to create Segments within the Services: 1) with relative date rules; and/or 2) based on limited Website and Shopify activity. For clarity, Advanced Segmentation is currently a Beta Feature and as such is not available as an option for segmentation of data ingested from sources other than Anderson Online Marketing (Pty) Ltd, Shopify, and/or a Website.
B. Behavioral Data: means data about Customer’s customers, prospects, and Website visitors, including information about such person’s use and interaction with Customer’s Website and/or certain Third Party Applications which Customer has integrated with the Services (including without limitation user name, postal address, e-mail address, IP address and phone number, current page URL, user agent, browser or device used, cookie hash, referrer, date and time of activity).
C. “Confirmation” means written documentation in a form and including substance reasonably satisfactory to Anderson Online Marketing (Pty) Ltd that evidences Customer’s acceptance of the Segment Rule setup.
D. “Implementation Support” is the initial set-up and on boarding of Customer’s Advanced Segmentation features, as further clarified in Section 2 below.
E. “Ongoing TAM Support” creation and ongoing management of Advanced Segmentation Beta Features. For clarity, Ongoing TAM Support will only include activities related to Advanced Segmentation Beta Features.
F. “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.
H. “Segment Rule” means the rule structure for segmentation of data created in accordance with Customer’s instructions.
I. “Technical Account Manager” or “TAM” means the dedicated account manager that will help Customer setup and manage Advanced Segmentation Beta Features and Segment Rules.
J. “Websites” means those websites within which Customer installs the Script.
SECTION 2: IMPLEMENTATION AND ONGOING SUPPORT REQUIREMENTS
A. Customer acknowledges and agrees that the Advanced Segmentation Beta Feature and Segment Rules may only be set up with the support of a Anderson Online Marketing (Pty) Ltd TAM.
B. Account Setup. Customer will need to work with a TAM to set up the Advanced Segmentation Beta Feature in accordance with the following procedure(s):
1. Anderson Online Marketing (Pty) Ltd account: Customer shall instruct TAM which Subscriber Lists Customer wishes to segment using the Advanced Segmentation Beta Features.
2. Website: While TAM will provide Customer with Script to install on its Websites, Customer is solely responsible for correct installation of the Script to any Websites
3. Shopify Integration: Customer is required to authorize the integration between Shopify and Anderson Online Marketing (Pty) Ltd by adding Anderson Online Marketing (Pty) Ltd as an integration in the Shopify Store.
C. Segment Creation. Customer will not be able to create segment using the Advanced Segmentation Beta Feature on its own, but will instead work with a TAM who will create and implement Segment Rules, as instructed by the Customer, in accordance with the following procedure:
1. Customer will send TAM a segment creation request via email, weekly status, or standard form.
2. Within two (2) business days of receipt of such request from Customer, a TAM will discuss Customer’s requirements with Customer and set up Segment Rules based on this request.
3. Once Segment Rules are created, the TAM will provide Customer with a snap-shot of the Segment Rule setup.
4. Once Customer provides Confirmation of the Segment Rule, the TAM will implement the Segment Rule.
SECTION 3: WEBSITE TRACKING
A. License Grant for Script. Subject to the terms and conditions of the Agreement and these Additional Terms (including any restrictions in the applicable Ordering Document), Customer is hereby granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable, license to use the Script, in the form made available to Customer, solely for the purpose of collecting data to be used in connection with the Advanced Segmentation features for use within the Services.
B. License Grant for Behavioral Data. By adding the Script to Customer’s Website, Customer thereby grants Anderson Online Marketing (Pty) Ltd and its Subprocessors a nonexclusive, irrevocable (until Customer removes such Script from the applicable Website), royalty-free, fully paid up, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, or have performed, any and all activities to the Behavioral Data solely to the extent necessary to provide the the Advanced Segmentation features.
C. Restrictions on Use.
1. Customer agrees not to use, copy, modify, adapt, alter, translate, create a derivative work of, reverse engineer, disassemble, or decompile the Script, including without limitation, any other underlying ideas or algorithms of the Script, except as expressly permitted herein or required by Law.
2. Customer may not integrate the Script on any properties unless such properties are owned, operated or controlled by Customer or properties that Customer has the legal permission or rights to access.
D. Behavioral Data Processing. Customer acknowledges and agrees that in order to provide the Advanced Segmentation Beta Features, Anderson Online Marketing (Pty) Ltd will Process Behavioral Data on behalf of Customer in the manner instructed by Customer and at Customer’s direction. Customer acknowledges and agrees that Anderson Online Marketing (Pty) Ltd cannot control which Websites Customer choose to install the Script for the Processing of Behavioral Data and that any Script installation shall be at Customer’s sole control and discretion. To that end, Customer represents and warrants that:
1. Customer has informed all persons whose Behavioral Data is Processed (whether in anonymous or identifiable form):
1. of the purpose for which that information was collected;
2. that Customer may provide Behavioral Data to its vendors and/or service providers for the purposes of use in relation to the Services;
3. that Behavioral Data may be combined with other information the Customer has on file about them; and
4. that Behavioral Data may be processed and/or stored by Customer’s vendors and/or service providers on servers located in the United States of America.
2. Customer has obtained the consent of all persons whose Behavioral Data is collected (whether in anonymous or identifiable form) for the processing of their Behavioral Data by Customer’s vendors and service providers for the purposes for which Customer is processing such Behavioral Data.
3. Anderson Online Marketing (Pty) Ltd’s Processing of such Behavioral 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.
E. Upon request by Anderson Online Marketing (Pty) Ltd, Customer shall have an authorized director or officer provide written certification that proper notices and consents have been obtained as required by applicable Laws.
SECTION 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 Behavioral Data obtained while using the Advanced Segmentation Beta Features.
SECTION 5: MULTI-TEAM ACCOUNTS
A. Unless otherwise expressly communicated in writing to 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 Behavioral Data among multiple team accounts; and
2. doing so will not violate any Law or third party’s privacy, intellectual property, other other rights.
SECTION 6: DISCLAIMERS
Anderson Online Marketing (Pty) Ltd does not guarantee that Account Setup or Segment Rule setup is error-free. Anderson Online Marketing (Pty) Ltd always recommend testing of Segment Rule prior to reliance on any segments created via Advanced Segmentation Beta Feature.
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.
SECTION 7: TRANSITION
Customer acknowledges and agrees that a new version of Anderson Online Marketing (Pty) Ltd 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 Beta 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 at no additional expense to Customer. 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 Anderson Online Marketing (Pty) Ltd 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 Anderson Online Marketing (Pty) Ltd with Advanced Segmentation features unless the Parties execute a new Ordering Document that states otherwise prior to Customer’s renewal.
SECTION 8: TERMINATION
Upon termination of the Agreement or Customer’s termination of the Advanced Segmentation Beta Feature (or the successor feature), Customer shall cease all use of the Advanced Segmentation Beta Feature and remove Scripts from any Websites where such Script is installed.
Maintaining the privacy of your information is of paramount importance to us as it helps foster confidence, goodwill and stronger relationships with you, our customers. If, at any time, you have questions or concerns about our privacy practices, please feel free contact us at firstname.lastname@example.org.
Information Collection and Use
Anderson Online Marketing (Pty) Ltd collects information that personally identifies you (“personal information”) in some circumstances, for example when you apply for our services or our customers provide your personal information to us so that we can help them communicate with you by email. The types of personal information we collect include name, contact details, identification information, organisation, title, information submitted in forms, payment details and enquiry/complaint details. We also collect personal information about your interactions and transactions with us, including any through monitoring and recording any contact we have with you by telephone, email or online for purposes including security, dispute resolution and training. We collect personal information directly from you as well as from third parties including public sources, our related companies, information service providers and the parties with whom we exchange information as described here.
We collect, use and disclose your personal information to provide, administer, improve and personalise our products and services, maintain and update our records, manage our relationship with you and our customers and deal with your enquiries and concerns. We may also collect, use and disclose your personal information in connection with suspected fraud, misconduct and unlawful activity.
If you are our customer, your personal information is used to create your personal access to our email marketing product, and to contact you in the course of using this product. Financial information that is collected is used to verify, identity and to bill either you or your company for products and services, as applicable. Demographic and profile data collected by Anderson Online Marketing (Pty) Ltd may be used to tailor this web site or any requested email communications, and to display information that is more relevant to you. Anderson Online Marketing (Pty) Ltd also compiles demographic and product use information, but in the aggregate only, and may make that aggregate information publicly available. Under no circumstances will Anderson Online Marketing (Pty) Ltd make any personal information about an individual user available publicly in this manner.
Your email address is used to only send you information that you have requested. As part of your use of our email marketing software, Anderson Online Marketing (Pty) Ltd allows you to elect to receive, or not receive, certain information from Anderson Online Marketing (Pty) Ltd. Anderson Online Marketing (Pty) Ltd adheres strictly to permission-based email policy. Except as mentioned above, Anderson Online Marketing (Pty) Ltd will not send you unsolicited email information, commercial offers or advertisements. Anderson Online Marketing (Pty) Ltd will not sell, rent, or loan our contact lists or our customer’s contact lists (including customer data) to any outside firms not involved in the provision of Anderson Online Marketing (Pty) Ltd services, nor will Anderson Online Marketing (Pty) Ltd use customer contact lists for our own marketing purposes. All emails that you have requested will have an option to unsubscribe. Unsubscribe requests are fulfilled within minutes and no further communications will be sent to users who have stated that they do not wish to receive the specified information.
We may not be able to do the things described above without your personal information. For example, we may not be able to communicate with you and deal with your enquiries.
Anderson Online Marketing (Pty) Ltd will not use or disclose your personal information without your consent, except:
• where required or authorised by law;
• to implement the terms of any agreement we have with you;
• to assist the lawful investigation of a law enforcement authority;
• to protect the rights, property or personal safety of another Anderson Online Marketing (Pty) Ltd customer, any member of the public or Anderson Online Marketing (Pty) Ltd;
• the assets and operations of the business are transferred to another party as a going concern; or
We may exchange your personal information with our related bodies corporate, your representatives and with our service providers that assist us with archival, auditing, accounting, customer contact, legal, business consulting, banking, payment, delivery, data processing, data analysis, information broking, research, investigation, website or technology services. Third parties to whom we disclose personal information may be located in Australia, the United States of America and other countries.
Subscriber Lists, Campaign Content and Campaign Reports
Communications from the Site
Special Offers and Updates
We send all new users a welcoming email to verify their new account and confirm their password and username. Established users will occasionally receive information on products, services, special deals, and a newsletter. Out of respect for the privacy of our users we present the option to not receive these types of communications. Customers can unsubscribe via the unsubscribe mechanism at the bottom of each email.
If a user wishes to subscribe to our newsletter, we ask for contact information such as name and email address. Out of respect for our users privacy we provide a way to opt-out of these communications via the unsubscribe mechanism at the bottom of each email.
On rare occasions it is necessary to send out a strictly service related announcement. For instance, if our service is temporarily suspended for maintenance we might send users an email. Generally, users may not opt-out of these communications, though they can deactivate their account. However, these communications are not promotional in nature.
We communicate with users on a regular basis to provide requested services and in regards to issues relating to their account we reply via email or phone, in accordance with the user’s wishes.
Website Usage Information
We use your IP address to help diagnose problems with our server, and to administer our website. We do not link your IP address which accesses our website to any personal information. We use tracking information to determine which areas our site users visit based on traffic to those areas. Anderson Online Marketing (Pty) Ltd does not track what individual users read, but rather how often each page is visited. This helps us maintain a superior and informative website for you.
In providing email campaign services for our customers, we may link cookies and IP addresses with records of emails received and links accessed to help our customers monitor the effectiveness of their email campaigns and manage their relationships with subscribers.
Our website may contains links to other sites. We are not responsible for the privacy practices or policies of those sites.
Anderson Online Marketing (Pty) Ltd has made a substantial investment in server, database, backup and firewall technologies to protect our information assets. These technologies are deployed as part of sophisticated security architecture. All data resides in a tightly controlled, secure data center. These investments mean that information about the identity and preferences of individual members is strongly protected by Anderson Online Marketing (Pty) Ltd against unauthorised access. We will maintain safeguards to protect the security of these servers and your personal information.
Anderson Online Marketing (Pty) Ltd may process, store and back up its information with the assistance of those providers.
If you apply for a position with us, we may also collect information about your experience, qualifications, skills, character and screening checks (including identity, eligibility to work, health, reference, background, directorship, financial probity, vocational suitability and criminal record checks). We collect, use and disclose your personal information to assess your application, conduct screening checks and consider and contact you about other positions. We may exchange your personal information with screening check providers, recruiters, academic institutions, health service providers, professional and trade associations, law enforcement agencies, referees and your current and previous employers. Without your personal information we may not be able to progress considering you for positions with us.
Contacting Anderson Online Marketing (Pty) Ltd about Privacy
If you have any questions about our privacy statement, the information we have collected from you online, the practices of this website, or you wish to access or correct the personal information we hold about you, please contact us:
Anderson Online Marketing (Pty) Ltd
Level 38, 201 Elizabeth Street
Sydney NSW 2000
+61 2 9521 5312
+61 2 8518 7100
In the case of access and correction requests, please provide as much detail as you can about the particular information you seek, in order to help us locate it. We will comply with any applicable legal requirements to provide reasons if we deny any request for access or correction, or to make a requested note of your desired correction with the information.
We take your privacy concerns seriously. Where you express any concerns that we have interfered with your privacy, we will respond to let you know who will be handling your matter and when you can expect a further response.
SECTION 1 | DEFINITIONS
The following definitions will apply to capitalized words in this Anti-Spam Policy:
B. “Anti-Spam Laws” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority regulating the transmission of electronic messages.
C. “Permission” means express, provable, and recent permission to contact Subscribers on the topic of an email. Recent, as used here, shall mean Permission was either: 1) obtained within the preceding 12 months; or 2) obtained at anytime and ongoing communications have been sent to the Subscriber over the course of the preceding 12 months.
D. “Distribution Email Address” shall mean 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.
E. “Spam”, as used herein, is any email sent by a User to a Subscriber who has not given the User their direct Permission to do so, or marks such email as Spam.
F. “Transactional Messages” shall have the meaning ascribed by applicable Laws.
G. “Transactional Email Feature” means the feature of the Services that allows a User to automatically send communications upon the occurrence of a trigger action. For example, the Transactional Email Feature may be used to have an order confirmation email sent automatically to recipients who make a purchase from you.
Capitalized words in this Anti-Spam Policy that are not otherwise defined above shall have the meaning ascribed in the Agreement.
SECTION 2 | REQUIRED CONTENT
A. Unsubscribe Link. You must ensure that all emails sent through your account contain a Anderson Online Marketing (Pty) Ltd (or other Anderson Online Marketing (Pty) Ltd-approved) “unsubscribe” link, in form and substance satisfactory to us, that: 1) allows Subscribers to instantly and permanently remove themselves from your Subscriber List(s), 2) presents unsubscribe instructions in a clear and conspicuous way, and 3) remains operational for a period of thirty (30) days after sending the email. You must monitor, correct, and process unsubscribe requests immediately. You must ensure that your Users do not remove, disable or attempt to remove or disable such link.
B. Contact Information. Each email must clearly identify the individual or organization that authorized the sending of the email (“Authorizing Party”). This means that if a third party is sending messages on behalf of an Authorizing Party, the Authorizing Party must be identified. Identification must include the correct legal name of the Authorizing Party and a registered business number (if applicable). All identification information should remain valid for at least 30 days after the email is sent. Each email must contain a legitimate physical address and contact details for the Authorizing Party and any other contact information that may be required by Law.
C. Other Required Information. All emails must state the reason the Subscriber is receiving the message. For example, “You are receiving this message from ABC Company because you signed up for our email Subscriber List at abc.com.”
SECTION 3 | PERMISSION
A. You agree to import, access, and/or use only Permission-based Subscriber Lists. You represent and warrant that you have provided all applicable legally required disclosures in conjunction with obtaining Subscriber’s Permission. You further represent and warrant that you have not used any false or misleading information, names, email addresses, subject lines, or other information for the purpose of or in connection with obtaining Subscriber’s Permission. You must retain records of any Permission received and shall provide such records to us immediately upon request.
B. Scope of Permission. You may not send emails to Subscribers on any topic that exceeds the scope of the topic that Subscriber has given you Permission to email them about. Any Permission obtained from a Subscriber shall be exclusive to you and will not extend to your Affiliates, unless such Permission was also granted to the applicable Viacom Affiliate.
C. Permission must be obtained in one of the ways described below. A Subscriber:
i. fills out an online form subscribing to your email marketing Subscriber List;
ii. opts-in via web form to your email marketing Subscriber List, provided that the opt-in box is not pre-selected by default;
iii. completes an offline form that clearly indicates that you may add them to your email marketing Subscriber List and they have expressly indicated their willingness to receive such emails;
iv. gives you their business card; provided: 1) you have explicitly indicated that by giving you their business card they are agreeing to being added to your email marketing Subscriber List; or 2) they added their business card to a container or pile that clearly indicated that by adding such business card they are agreeing to being added to your email marketing Subscriber List;
v. purchases goods or services from you in the preceding 12 month period and there is a reasonable expectation that the Subscriber would consent to receiving emails; or
vi. provides you with other express written permission to be added to your email marketing Subscriber List prior to your contacting them via email.
SECTION 4 | APPROVALS, RESTRICTIONS, & COMPLIANCE
A. Account Approval. Unless otherwise expressly agreed by us, you may not send any emails using the services until your account has been approved by a member of our trained compliance team.
B. You agree that you will not:
i. mail to Distribution Email Addresses, emails addresses copied or scraped from the internet; newsgroups, purchased, loaned, or rented lists;
ii. mail to any list obtained from a third party, unless pre-approved in writing by us, which approval may be withheld in our sole discretion;
iii. use the Services to administer illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or conduct any illegal activities;
iv. Use the Services to transmit or solicit material that:
a. is Spam, obscene, threatening, harassing, or libelous;
b. contains, links to, or displays nudity, obscene content, gambling related content, escort services, offers to make money online, pay day lender related content, illegal drugs, illegal software, viruses, or other content that we deem inappropriate in our sole discretion;
c. violates or infringes the rights of a third party (including a third party’s privacy and/or intellectual property rights); or
d. violates any applicable local, state, federal, and international Laws.
C. Additional Restrictions.
. Content Subject to Compliance Approval. You must obtain prior written approval from our compliance team, which may be withheld in our sole discretion, before sending content related to pharmaceuticals, legal drugs, horoscopes, adult novelty items, diet advice, nutritional advice, supplements, or stock trading tips.
i. Bulk Uploads. Prior to any bulk and/or large Subscriber List uploads to the Services, you must obtain prior written approval from our compliance team, which may be withheld in our sole discretion.
D. Transactional Email Feature. You must not use the Transactional Email Feature to send non-Transactional Messages to Subscribers unless you have Permission to do so.
E. Compliance. You acknowledge that the Services allow you to upload data related to your Subscribers and also to track your Subscribers engagement with emails sent using the Services and accordingly, you represent and warrant that you have complied with all notice, disclosure, consent, and other requirements imposed by applicable data privacy Laws prior to uploading an individual’s email address to a Subscriber List. You represent and warrant that you have complied with applicable data privacy Laws and Anti-Spam Laws in connection with your use of the Services.
SECTION 5 | OUR RIGHTS AND OBLIGATIONS
A. Subscriber Lists. We will not use any Subscriber Lists or User Content for sending spam or any purpose other than those related to the Services.
B. Monitoring. We reserve the right, but have no obligation, to:
i. scan every campaign for the existence of an unsubscribe link. If an unsubscribe link is not detected, you will be informed and required to include a Anderson Online Marketing (Pty) Ltd unsubscribe link before sending additional email messages or User Content via the Services.
ii. monitor and meter the number of KiloBytes of data transferred when sending email messages.
iii. monitor any and all User Content and your use of the Services to ensure compliance with this Anti-Spam Policy.
C. Abuse Complaints. Emails sent through the Services may generate abuse complaints from Subscribers. Our software is directly integrated into the spam reporting systems of major ISPs. If someone marks your campaign as spam, we’ll be notified immediately. You are responsible for ensuring that email campaigns sent from your accounts do not generate a number of abuse complaints in excess of industry norms. If your complaint rate reaches 0.3% of all Subscribers (that’s 30 complaints aggregated across your accounts, including your End Clients’ accounts, for every 10,000 Subscribers) you will receive a warning email requesting an explanation and tips. If your complaint rate exceeds 0.3%, we may lock or terminate your account in our sole discretion.
D. Right to Audit. We have the right to audit your accounts and records to evaluate such party’s compliance with this Anti-Spam Policy. You agree to procure, where necessary, that your End Client’s records are made available to us upon our request.
E. Right to Suspend. We may, in our sole discretion, remove any User Content and/or suspend or terminate your (and/or your End Clients’) use of the Services for any actual or alleged breach of this Anti-Spam Policy at any time. Any suspension pursuant to this clause will not affect your obligation to pay fees owed to Anderson Online Marketing (Pty) Ltd.
F. Right to Terminate. We may, at our own discretion, immediately disable your access to the Services without refund if we believe in our sole discretion that you have violated this Anti-Spam Policy.
In the end, anti-spam compliance is about common sense. Take off your marketing hat and put yourself in your Subscriber’s shoes. If they don’t recognize who you are or aren’t interested in what you’re sending, they’ll think you’re a spammer. It’s that simple.
+27 73 076 0067