Aurea Email Marketing: Terms of Use for SaaS

 

These Terms of Use for SaaS apply to and are incorporated by reference into the ordering document  (the “Quote”) made by and between the Service Provider (as identified on the Quote) and the Customer (as identified on the Quote). Capitalized terms used but not defined herein have the meaning given to them in the SaaS Terms and Conditions or the Quote. If there are any conflicts or inconsistencies between a specific term or condition of these Terms of Use and a specific term or condition of the SaaS Terms and Conditions, the specific term or condition of these Terms of Use will control. Service Provider may, from time to time modify these Terms of Use by posting the revised Terms of Use to Service Provider’s site. Service Provider will give sixty (60) days prior notice of any material changes.  Customer’s use of the Services following any modification will be deemed to be Customer’s acceptance of any such modification.

  1. Activation and Use of the Services.
    1. Account Access. On or before the Term Start Date, Service Provider shall provide Customer with an account name and a password that will allow access to the Services. Customer shall be responsible for any and all activities conducted through its account, whether or not such activities have been authorized by Customer.
    2. Registration Information. Upon Service Provider’s request, Customer shall provide Service Provider with accurate and complete registration information with respect to Customer’s use of the Services (including the identity, email addresses, and passwords of Customer’s authorized hosted list administrators) and promptly update such information as changes occur.
    3. Content. Customer acknowledges that Service Provider is not responsible for and does not give any assurance to any person with respect to the validity, value, usefulness, or accuracy of any Content. Customer and any person using the Services solely and exclusively bears any risk associated with Content.
    4. Lawful Use. Customer agrees to use the Services only for lawful purposes. Customer agrees that Service Provider (in its sole discretion) may monitor any and all aspects of the Services for the purpose of auditing compliance with the SaaS Terms and applicable Quote. Customer will inform its users that their use of the Services will constitute consent to such monitoring. If Customer or any of its users restricts or inhibits any other customer or user of the Services, then Service Provider may, in its sole reasonable discretion, terminate or suspend the right of Customer or Customer’s user to use the Services.
    5. Customer Responsibilities. Customer shall be responsible for any failure to achieve volume or other commitments (as set forth in a Quote) that results from Customer’s failure to comply with these Terms of Use and/or Service Provider’s exercise of any remedy available to Service Provider for such failure. Customer will not be entitled to any refund, credit, or other relief for Services that are not provided due to Service Provider’s exercise of any remedy available to Service Provider.
    6. ISP Relations. Customer shall work with Service Provider, at Service Provider’s request, to maintain relationships with Internet service providers (each, an “ISP”). Customer further acknowledges that Service Provider may be required by an ISP or other third party to impose additional or modified consent procedures with respect to Customer’s email campaigns. Customer shall be responsible for handling customer service and abuse complaints related to Customer’s email campaigns, including without limitation processing unsubscribe requests.
    7. Service Provider Right to Monitor. Service Provider has the right to periodically monitor and/or review Customer’s compliance with these Terms of Use.
  2. Hosted Email Marketing Services. The following terms and conditions apply to Customer’s use of Service Provider’s hosted email marketing-related Services:
    1. Prohibited Activities. Customer shall not employ any practices with respect to its email address lists that (in Service Provider’s sole discretion) may increase the risk of ISP filtering, blacklisting, or blocking, or otherwise may negatively impact Service Provider’s reputation with ISPs. Without limiting the foregoing, examples of prohibited activities include: sending messages to email addresses that have been purchased; sending messages to email addresses that have been harvested or scraped from sources on the Internet; sending messages to email addresses collected by third parties; sending messages for the first time to email addresses collected more than 3 years prior; sending messages to lists with an unusually low response rate; or attempting to manipulate or avoid ISP filters or reputation systems. Customer may not use the Services for a one-time mailing to a list of members after which Customer deletes substantially all of the membership and creates a new list. Customer’s membership must be a static, permanent list to which Customer adds or deletes new members and/or members subscribe or unsubscribe themselves in the ordinary course.
    2. Spamming Prohibited; Truth in Advertising. Customer may not use the Services to send unsolicited email, whether it be commercial or non-commercial, and/or commercial email containing any deceptive, unsubstantiated, or unfair marketing claim (collectively, “Spam”). Customer’s email will be considered unsolicited if Customer’s membership addresses are not 100% opt-in by Customer’s members. If Customer’s email addresses came from harvesting, a purchased email list, another mailing list (even with the approval of the other list owner or Service Provider), or are compiled by any method other than by direct subscription from Customer’s members, then all messages sent to such addresses will be considered Spam under these Terms of Use. In addition, Customer’s email will be considered Spam if it: (i) contains one or more deceptive or unsubstantiated claims regarding products or services; and/or (ii) furthers, constitutes, or consists of an unfair business practice. Customer shall be solely responsible for the substantiation of any and all claims made in all messages transmitted via the Services using Customer’s account.
    3. Spamming Complaints. If Service Provider receives complaints that Customer has transmitted and/or continues to transmit Spam, in addition to any other rights that Service Provider may have under the SaaS Terms, Quote or under applicable law, Service Provider may at its sole option suspend Customer’s use of the Services pending a reconfirmation of Customer’s entire membership list. This reconfirmation may be required by Service Provider in any reasonable manner it determines in its sole judgment including, without limit, sending a single email to all of Customer’s list members requesting confirmation of their wish to maintain their subscription to such list. Members who do not reconfirm within a reasonable time established by Service Provider may be deleted from the list in question. Service Provider agrees to use commercially reasonable efforts to contact Customer’s designated list administrator by email or phone before suspending Customer’s use of a Services. Customer’s consent will be requested before Service Provider contacts Customer’s list members for the purposes of reconfirmation, however, if Customer does not consent to such reconfirmation, then Service Provider may immediately and without further notice to Customer terminate the applicable Quote.
    4. Service Provider Remedies. If Service Provider determines in good faith that Customer has transmitted and/or continues to transmit Spam, in addition to exercising any other of its rights under the SaaS Terms, applicable Quote and applicable state or federal law, Service Provider will issue a one-time warning to Customer’s primary contact’s email address to cease such activity, after which if Spam transmission continues: (i) Service Provider may bring an action in any court of competent jurisdiction to enjoin such activity, it being understood that such activity may cause irreparable harm to Service Provider which may not be fully compensable by monetary damages, and (ii) Service Provider may recover from Customer monetary losses caused to Service Provider by such activity in an amount equal to the greater of (a) $500 for each such item of unsolicited email that Customer has sent to each separate and identifiable e-mail address (which amount the parties agree is a fair and reasonable estimate of Service Provider’s losses suffered thereby and is not a penalty) or (b) Service Provider’s actual monetary loss, including, but not limited to, any damage, loss or expense (including reasonable attorney’s fees) resulting from any third party claim made against Service Provider as a result of Customer’s conduct in violation of this provision. In addition to the foregoing, Customer is responsible for reasonable costs incurred by Service Provider in bringing such actions, including its reasonable attorney’s fees.
    5. Other Unacceptable Uses. Additionally, Customer may not use the Services to:
      1. Send email with an invalid “From:” or “Reply-to:” address. All messages posted to Customer’s list must contain valid email addresses that accurately reflect the sender’s identity and Customer must be responsive to all replies from members of Customer’s list, including unsubscribe requests. Customer may not refuse or ignore unsubscribe requests from members of Customer’s list.
      2. Harass; threaten; embarrass, or cause distress, unwanted attention, or discomfort to a person or entity.
      3. Post or transmit sexually explicit images or other Content that is deemed by Service Provider to be offensive.
      4. Transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content that is racially, ethnically, or otherwise objectionable, or that infringes upon the rights of any third party, as determined by Service Provider.
      5. Impersonate any person, including, but not limited to, an official of Service Provider or an information provider, or communicate under a false name or a name that Customer is not entitled or authorized to use.
      6. Intentionally or unintentionally violate any applicable local, state, national, or international law, including, but not limited to, any regulations having the force of law.
      7. Transmit any virus, malicious code, or anything destructive to a recipient’s computer.
      8. Exceed any volume limitations included in the applicable Quote.
    6. Membership Confirmation. Any email sent to new members confirming membership on Customer’s list may not include advertising or calls-to-action other than an appeal to confirm the member’s subscription.
    7. Unsubscribing. All list messages must include unsubscribe instructions in the body or footer of the message, so that members can unsubscribe themselves from the list. List owners must respond to member requests for manual removal from the list promptly, but in no event more than 10 days after the member’s first request. Customer shall not discard email messages from members asking to be removed from Customer’s list. Even if the user request for removal is aggressive, unfriendly, or otherwise rude, Customer should nonetheless make every attempt to help the user unsubscribe from Customer’s list and resolve the situation.
    8. Suspension of Services. Service Provider has the right to suspend performance of its Services described in a Quote in the event that Customer’s bounce rate, unsubscribe rate, and/or number of recipient complaints are at a rate that is beyond the levels acceptable to an ISP through which Customer’s list is deployed, for any Customer use of the Services that Service Provider reasonably determines is in violation of these Terms of Use or is necessary to avoid damage to Service Provider ’s systems, reputation, or business. Following any such suspension, the Services shall not be reinstated until Service Provider is reasonably satisfied that the activities resulting in such suspension have been cured or shall cease. If Customer fails to so cure such activities within 30 days following the suspension, Service Provider has the right to immediately terminate the applicable Quote upon written notice to Customer.

Updated: February 1, 2016.