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Reseller Terms and Conditions
Published: February 25, 2022
Effective: April 14, 2021 for new customers; May 14, 2021 for customers existing as of April 14, 2021
The Reseller Services that j2 Global Canada, Inc. (“Campaigner”) provides to you are subject to the following terms of use (“Reseller Agreement”). Campaigner may amend this Agreement at any time by (a) posting a revised Reseller Agreement on staging-campaigner.kinsta.cloud, and/or (b) sending information regarding the amendment to the email address you provide to Campaigner.
FOR RESELLERS WITH A U.S. BILLING ADDRESS, THESE TERMS CONTAIN A BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER PROVISION IN THE “BINDING ARBITRATION AND CLASS ACTION WAIVER” SECTION.
YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE CAMPAIGNER WEBSITES TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE THE RESELLER SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not be amended except in writing signed by both you and Campaigner.
The most current version of the Reseller Agreement can be reviewed at staging-campaigner.kinsta.cloud.
You may also have a signed written agreement which is expressly incorporated herein (“Written Agreement”), and which in conjunction with the Reseller Agreement and policies referred to herein, comprise the entire Agreement between Campaigner and you. The Written Agreement may contain different or additional terms which supersede terms in this document and may refer to earlier versions of these terms.
SECTION 1: Definitions & Interpretation
1.1 Definitions: The terms defined elsewhere in the Reseller Agreement are incorporated herein. In addition, the terms below have the following meanings:
(a) “Affiliates”: any and all parents, subsidiaries, predecessors, successors, and other related entities of a corporate entity.
(b) “Campaigner Marketing Materials”: any and all advertising and marketing materials, service descriptions, technical specifications, online help files, and user manuals that are produced by Campaigner for the Campaigner solution.
(c) “Customer”: an individual or entity who purchases the Campaigner solution for its own email marketing needs and not, for example, for resale or use by third parties.
(d) “Login Information”: any passwords, access codes, user IDs, or other login information provided to or used by Reseller to access the Campaigner Reseller platform, or by Reseller, its Customers, or their Users to access the Campaigner Solution.
(e) “Proprietary Rights”: all proprietary rights of any kind, including without limitation patents, trademarks, trade dress, copyrights, trade secrets, and other intellectual property and industrial property rights.
(f) “Reseller Services”: the services offered to Reseller by Campaigner, which may include use or resale of such services by Reseller.
(f) “Suppliers”: any and all third party agents, business associates, resellers, licensors, partners, and other vendors of goods or services used by Campaigner to provide the Campaigner Reseller Solution or the Campaigner solution.
(g) “User”: an individual employee or representative of a specific Customer who is provided access to the Campaigner Solution. 1.2 Interpretation. The headings are for reference only and do not define, limit, or enlarge the scope or meaning of this Reseller Agreement or any of its provisions.
SECTION 2: Grant Of Rights
2.1 Grant. Subject to the terms and conditions of this Reseller Agreement, Campaigner hereby appoints Reseller as a non-exclusive reseller of the Campaigner solution to Customers during the Term. Such appointment shall be non-transferable and non-sublicensable, and shall be subject to the limitations and restrictions set forth in this Reseller Agreement.
Reseller is prohibited from reselling any other Campaigner services without Campaigner’s express written approval. Any such approval must be evidenced by the Parties signing a new reseller agreement describing such additional services and their associated fees.
2.2 Reservation. Nothing in this Reseller Agreement limits, impairs, or restricts Campaigner’s right and ability to:
(a) directly or indirectly market, advertise, distribute, demonstrate, sell, offer to sell, resell, license, test, maintain, support, service, otherwise commercially exploit, and provide other services relating to the Campaigner Reseller platform, the Campaigner solution, or any other products or services on a worldwide or territorial basis, including through other channels, resellers, referral sources, distributors, and sales representatives; or
(b) discontinue the provision, maintenance, or support of the Campaigner Reseller platform or the Campaigner solution.
SECTION 3: Licenses
3.1 Campaigner Reseller platform. Subject to the terms and conditions of this Reseller Agreement, Campaigner hereby grants to Reseller a limited, restricted, non-exclusive, and non-transferable license during the Term for Reseller to use the Campaigner Reseller Platform in connection with the Reseller Services. This license for the Reseller Platform may not be sublicensed.
Reseller is prohibited from reselling, sublicensing, distributing, or otherwise making available the Campaigner Reseller platform to any third party. Reseller is also prohibited from using the Campaigner Reseller platform other than as provided herein.
3.2 Campaigner Solution. Subject to the terms and conditions of this Reseller Agreement, Campaigner hereby grants to Reseller a limited, restricted, non-exclusive, and non-transferable license during the Term for Reseller to use the Campaigner solution:
(a) in connection with the Reseller Services; and
(b) for Reseller’s own email marketing needs. Reseller shall be entitled to sublicense the Campaigner solution to its Customers strictly for the Customers’ own email marketing needs only and not, for example, for resale or use by third parties.
Reseller shall guarantee and ensure that its Customers are prohibited from using the Campaigner solution other than as provided herein. Reseller is prohibited from reselling, sublicensing, distributing, or otherwise making the Campaigner solution available to any third party other than its Customers as provided herein. Reseller is also prohibited from using the Campaigner Solution other than as provided herein.
3.3 Campaigner Marketing Materials. Subject to the terms and conditions of this Reseller Agreement, Campaigner hereby grants to Reseller a limited, restricted, non-exclusive, and non-transferable license during the Term to use, reproduce, and distribute any Campaigner Marketing Materials provided by Campaigner in an unaltered state and in connection with the Reseller Services. Reseller agrees not to make any derivative works from the Campaigner Marketing Materials without Campaigner’s prior written consent. This license may not be sublicensed.
To the extent Reseller uses images provided by Campaigner, Campaigner hereby grants Reseller a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state and solely in connection with the Reseller Services or pursuant to Reseller’s use of the Campaigner solution. This license may not be sublicensed.
3.4 No License to Proprietary Rights. Reseller acknowledges and agrees that the Campaigner Reseller platform, the Campaigner solution, and the Campaigner Marketing Materials, including all parts thereof and all other software, technology, documents, and other information used to provide the same, are the exclusive property of Campaigner and its Affiliates, and are the subject of various Proprietary Rights held by Campaigner and its Affiliates. Reseller and its Customers will not acquire any rights, title, or interest in or to any of the foregoing. This Reseller Agreement does not provide any express or implied license to use, modify, or improve the Campaigner Reseller platform or the Campaigner Services, or to otherwise use or exploit the Campaigner Reseller platform, the Campaigner solution, or Campaigner’s Proprietary Rights in any manner not expressly permitted herein.
3.5 Restrictions. Reseller agrees to limit its use of the Campaigner Reseller platform, the Campaigner solution, and the Campaigner Marketing Materials to uses expressly authorized in this Reseller Agreement. Notwithstanding the foregoing, Reseller agrees not to:
(a) attempt to create or derive any of the source code, technology, or data within the Campaigner Reseller platform or the Campaigner solution by disassembly, reverse engineering, or any other method, otherwise reduce the Campaigner Reseller platform or the Campaigner solution to a human-perceivable form, or modify or translate any part of the Campaigner Reseller platform or the Campaigner solution; and
(b) attempt to obtain Proprietary Rights related the Campaigner Reseller platform, the Campaigner solution, or the Campaigner brand.
SECTION 4: Reseller Obligations
4.1 Standard of Conduct. At all times during the Term, Reseller will perform its obligations under this Reseller Agreement and conduct itself in a lawful, ethical, fair, competent, and professional manner, in accordance with the highest standards of the industry. Reseller will not, through any action, inaction, statement, or omission, negatively impact the reputation or customer goodwill of Campaigner and the Campaigner brand.
At all times during the Term, Reseller will perform the Reseller Services only through employees and contractors who are thoroughly knowledgeable about how to use, market, advertise, demonstrate, sell, offer for sale, test, support, service, and provide other services relating to the Campaigner Reseller platform and the Campaigner solution.
4.2 Equipment & Services. Reseller is solely responsible for obtaining, provisioning, configuring, maintaining, paying for, and protecting all equipment and services necessary for Reseller to perform the Reseller Services and use the Campaigner Reseller platform and Campaigner solution, including providing its own computer equipment, internet access, and email service. Campaigner shall have no responsibility for the same.
Reseller shall guarantee and ensure that its Customers are solely responsible for obtaining, provisioning, configuring, maintaining, paying for, and protecting all equipment and services necessary to use the Campaigner solution, including providing their own computer equipment, internet access, and email service. Campaigner shall have no responsibility for the same. 4.3 Protection of Login Information. Reseller is solely responsible for protecting and safeguarding its Login Information.
Reseller shall not disclose or make available its Login Information other than to its authorized employees or contractors. Reseller shall use all commercially reasonable efforts to prevent unauthorized access to, or use of, its accounts. Reseller is entirely responsible for any and all activities that occur by anyone who has authorized access to Reseller’s accounts, or any other party with whom Reseller has shared its Login Information. Reseller shall guarantee and ensure that its Customers are solely responsible for protecting and safeguarding their own Login Information. Reseller shall obtain its Customers’ agreement not to disclose or make available their Login Information other than to their authorized employees or contractors. Reseller shall guarantee and ensure that its Customers use all commercially reasonable efforts to prevent unauthorized access to, or use of, their accounts.
Reseller shall guarantee and ensure that its Customers are entirely responsible for any and all activities that occur by anyone who has authorized access to their accounts, or any other party with whom a Customer has shared its Login Information.
Reseller agrees to notify Campaigner immediately of any unauthorized access or use of its accounts or Login Information, or any other breach of security. Reseller shall make any disclosures related to such unauthorized access or use, or other breach of security, that may be required under applicable law. Reseller shall also procure each Customer’s guarantee and agreement that it will notify Reseller promptly of any unauthorized access or use of its account or Login Information, or any other breach of security. If Reseller is in receipt of a notification from a Customer, Reseller agrees to immediately notify Campaigner.
Campaigner is not obligated to verify the actual identity or authority of any individual using the valid Login Information of the Reseller, its Customers, or their Users. If Campaigner, in its absolute discretion, considers Login Information to be insecure or to have been compromised, then Campaigner may immediately cancel the affected Login Information without notice and/or suspend any affected accounts.
Campaigner will not be liable for any loss that the Reseller, its Customers, their Users, or any other parties may incur as a result of any authorized or unauthorized use of the Campaigner Reseller platform or the Campaigner solution. However, Reseller, its Customers, and their Users may be held liable for losses incurred by Campaigner or another party due to any authorized or unauthorized use of the Campaigner Reseller platform or the Campaigner Solution.
4.4 Records. During the Term and for six (6) years thereafter, Reseller will create and retain records and books of account relating to the Reseller Services, in accordance with generally accepted accounting principles. Upon request by Campaigner, Reseller will promptly provide to Campaigner all records and books of account. Upon request by Campaigner, Reseller will promptly provide to Campaigner copies of all executed Customer Agreements and/or other evidence that customers have accepted the Customer Terms & Conditions and have entered into Customer Agreements with Reseller.
4.5 Governmental Approvals. Reseller will obtain and comply with all governmental approvals, licenses, permits, declarations, rules, regulations, and registrations that may be required for the resale and provision of the Reseller Services and/or performance of Reseller’s obligations under this Reseller Agreement.
4.6 Customer/User Notices. Upon request by Campaigner, Reseller will promptly deliver to its Customers any notices regarding the Campaigner Solution.
4.7 Notification. Reseller will immediately notify Campaigner of any notices received by Reseller that could adversely affect Campaigner or its Affiliates, including without limitation notices of actual or potential third party claims or proceedings relating to the Campaigner Reseller platform or the Campaigner solution.
4.8 Errors. Reseller will promptly notify Campaigner of any suspected errors, bugs, or other problems with the Campaigner Reseller platform or the Campaigner solution.
SECTION 5: Fees, Prices, and Payments
5.1 Fees. Reseller is solely responsible for, and will pay to Campaigner, all Fees pursuant to the Reseller Agreement, along with all applicable taxes. ALL FEES ARE NONREFUNDABLE.
Failure by Reseller or its Customers to use their accounts will not be a basis for refusing to pay Fees in accordance with this Reseller Agreement.
Payment of Reseller’s account balance is due monthly in the currency in which billed. Campaigner may, at its option and sole discretion, accumulate overage, upgrade, and additional fees incurred during Reseller’s monthly billing cycle and submit such fees as one or more aggregate charges during or at the end of each cycle.
If Reseller has questions regarding any charges that have been applied to its account, Reseller must contact Campaigner’s customer support within thirty (30) days of the charge.
5.2 Taxes. Taxes include without limitation federal, state, provincial, municipal, or any other governmental tax, tax-like charge, fee, or assessment. All charges will be exclusive of V.A.T, sales tax, or other taxes, except as required by law. Canadian residents will be charged G.S.T. and P.S.T. as applicable.
If Reseller resides outside of Canada, the place of residency will be deemed not to be Canada unless Campaigner is notified otherwise. If Reseller’s residency status changes, Reseller must notify Campaigner and be required to provide a mailing address and proof of residency. Non-Canadian residents will be deemed not to have registered for G.S.T unless Campaigner is notified otherwise.
5.3 Credit Card Payment & Authorization. Unless Reseller has a qualified business account (see Section 5.4), payments must be made by a designated credit card, which must be maintained on file at all times. If payment is not received by Campaigner from the card issuer or its agents, Reseller agrees to pay all amounts due upon demand by Campaigner.
Each time Reseller uses the Campaigner Reseller platform or the Campaigner solution or otherwise provides Reseller Services, Reseller agrees and reaffirms that Campaigner is authorized to charge its designated credit card. Reseller’s card issuer’s agreement governs its use of its designated credit card and Reseller must refer to such agreement (not this Reseller Agreement) with respect to its rights and liabilities as a cardholder.
Reseller agrees that Campaigner may submit charges for Fees each month without further authorization, until Reseller provides prior notice (in accordance with Campaigner’s verification procedures, as may be established by Campaigner from time to time in its sole discretion) that Reseller has terminated this authorization or wishes to change its designated credit card. Such notice will not affect charges submitted before Campaigner reasonably could act on Reseller’s notice.
5.4 Qualified Business Accounts. If Reseller has a qualified business account and is approved by Campaigner for corporate billing, charges will be accumulated, identified by Reseller identification number, and invoiced on a monthly basis.
5.5 No Other Payments. Except as expressly set forth herein, each Party will bear all costs and expenses incurred in performing its obligations pursuant to the Reseller Agreement, and Reseller is not entitled to receive any fees, commissions, or other remuneration for the performance of its obligations.
SECTION 6: Term and Termination
6.1 Early Termination Without Cause. Reseller may terminate this Reseller Agreement at any time without cause by providing at least ninety (90) days prior written notice and paying a termination fee equal to fifty percent (50%) of the number of complete or partial months remaining in the Initial Term (or, if beyond the Initial Term, the current Renewal Term), multiplied by the average of the last three (3) months of monthly recurring charges prior to the effective early termination date. This termination fee will be payable within thirty (30) days of the effective early termination date.
6.2 Termination for Cause. Notwithstanding any other provision, either Party may terminate this Reseller Agreement for cause effective immediately upon delivery of a notice of termination to the other Party if the other Party has materially breached this Reseller Agreement and has not remedied the breach within thirty (30) days after written notice. Notice of the breach must:
(a) identify the breach;
(b) state the non-breaching Party’s intention to terminate this Reseller Agreement if the breach is not remedied; and
(c) be delivered within thirty (30) days of the breach.
If the breaching Party does not cure the breach within thirty (30) days of receiving notice, the non-breaching party may deliver a notice of termination. The notice of termination must be delivered within ninety (90) days of the breach to be effective. If the breach is of a continuing nature, these provisions apply for each instance of breach.
6.3 Termination Due to Bankruptcy. Campaigner may in its absolute discretion terminate this Reseller Agreement for cause immediately upon delivery of notice to Reseller if Reseller becomes bankrupt, takes any step or proceeding available to it for the benefit of insolvent debtors, becomes insolvent, or takes any step or proceeding for its liquidation, dissolution, or winding up.
6.4 Termination, Suspension, Restriction, or Other Limitation Under Special Circumstances. In its sole discretion and without liability, Campaigner may terminate, suspend, restrict, or otherwise limit Reseller’s and/or any of its Customers’ use of, and licenses to, the Campaigner Reseller platform or the Campaigner solution based on:
(a) Campaigner’s reasonable belief that Reseller or its Customers have violated or will violate Section 7;
(b) an order issued by a court or other governmental authority requiring such termination, suspension, restriction, or limit;
(c) Campaigner’s reasonable belief that use of the Campaigner Reseller platform or the Campaigner Solution by Reseller or its Customers have or will adversely affect Campaigner’s equipment, security network infrastructure, or service to others; or
(d) Reseller’s failure to pay undisputed Fees after being provided notice. Campaigner will use commercially reasonable efforts to provide Reseller prior notice of termination, suspension, restriction, or other limitation under this Section 6.4. If prior notice is not possible, Campaigner will provide notice as soon as reasonable practicable.
In the case of termination under this Section 6.4, the provisions of Section 6.5 shall apply. In the case of suspension, restriction, or other limitation under this Section 6.4, Fees will continue to accrue. Other than in cases of willful, intentional, or knowing violations of Section 7, Campaigner will use commercially reasonable efforts to work with Reseller to resolve any issues and reinstate the Reseller Services to the fullest extent possible.
Campaigner reserves the right to terminate, suspend, restrict, or otherwise limit Reseller or its Customers’ access to the Campaigner Reseller platform or the Campaigner solution if Campaigner, in its sole discretion, believes that the Campaigner Reseller platform or the Campaigner solution are used for a purpose that is unlawful or prohibited by this Reseller Agreement, any applicable Customer Agreement, or any other notices.
Campaigner shall have no obligation to maintain any messages or other content in suspended, restricted, or terminated accounts, or forward any unread or unsent messages to Reseller, a Customer, a User, or any other party.
6.5 Effect of Termination. Immediately upon termination of this Reseller Agreement:
(a) Reseller will cease using the Campaigner Reseller platform and the Campaigner solution, and will cease providing Reseller Services;
(b) Reseller’s Customers will cease using the Campaigner Solution;
(c) Campaigner will cease providing the Campaigner Reseller platform to Reseller;
(d) Campaigner will cease providing the Campaigner solution to Reseller and its Customers; and
(e) Reseller will pay to Campaigner all Fees accrued up to the date of termination without any right of deduction or setoff.
If this Reseller Agreement is terminated under Sections 6.2, 6.3, or 6.4, Reseller will immediately pay a termination fee equal to one hundred percent (100%) of the average of the last three (3) months of monthly recurring charges prior to the effective early termination date. 6.6 Survival.
Notwithstanding anything to the contrary, the following provisions of this RESELLER Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the termination of this RESELLER Agreement, will remain in full force and effect, and WILL be binding upon the Parties: Sections 3.4, 3.5, 4.4, 6.5, 6.6, 8, 9, AND 10.
SECTION 7: No Unlawful or Prohibited Use
7.1 Acceptable Use & Legal Compliance. Reseller is solely responsible and liable for its actions in providing the Reseller Services and its use of the Campaigner Reseller platform and Campaigner solution, including the accuracy, integrity, legality, reliability, and appropriateness of all messages transmitted using the Campaigner solution, and any other acts and omissions. Reseller will ensure that its provision of the Reseller Services and its use of the Campaigner Reseller platform and the Campaigner Solution:
(a) comply with all applicable laws, rules, and regulations, as well as this Reseller Agreement; and
(b) do not infringe the rights of other parties. Campaigner shall have no responsibility for the same.
Reseller shall guarantee and ensure that each of its Customers is solely responsible for its own activities and those of its Users, including the accuracy, integrity, legality, reliability, and appropriateness of all messages transmitted using the Campaigner solution, and any other acts and omissions. With respect to a Customer’s use of the Campaigner solution, Reseller shall guarantee and ensure that each of its Customers agrees:
(a) to comply with all applicable laws, rules, and regulations, including but not limited to the CAN-SPAM Act, the Telephone Consumer Protection Act, implementing regulations by the FTC or FCC, and related or analogous legislation or regulation outside the United States, as well as the applicable Customer Agreement; and
(b) not to infringe the rights of other parties. Campaigner shall have no responsibility for same.
Reseller represents that the information submitted for transmission via the Campaigner network for the Campaigner Reseller platform or the Campaigner solution is for lawful purposes only and that the transmission of messages or files is not in violation of any applicable laws, rules, and regulations, including without limitation encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability, or otherwise violate any local, provincial, state, national, or other law.
Reseller may not use the Campaigner Reseller platform or the Campaigner solution to upload, post, reproduce, or distribute, in any way, any information, software, or other material protected by another party’s Proprietary Rights without first obtaining permission.
Reseller agrees to comply with all applicable laws, rules, and regulations, including those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data. Violations of Section 7 will cause Reseller and/or its Customers’ accounts to be terminated, suspended, restricted, or otherwise limited pursuant to Section 6.4 Campaigner reserves the right to take any other action that it deems necessary or appropriate, in its sole discretion, if Campaigner believes a Reseller, its Customer, or their Users have violated or will violate Section 7.
7.2 Unsolicited Email and SMS Marketing. The transmission of unsolicited email and SMS is regulated by the CAN-SPAM Act and Telephone Consumer Protection Act (United States), the EU Opt-In Directive (Europe), and CASL (Canada), among other laws, rules, and regulations in these and other countries, states, provinces, and jurisdictions.
Email or SMS marketing in violation of such laws, rules, and regulations using the Campaigner Solution is prohibited and is a material violation of this Reseller Agreement. Reseller warrants its compliance with laws, rules, and regulations regarding unsolicited email marketing and will require its Customers to comply as well.
7.3 Message Content. Reseller is fully responsible for the content of its transmissions through the Campaigner Solution. Reseller agrees and acknowledges that:
(a) Reseller is the creator of all content;
(b) Campaigner is not the author or publisher of any content; and
(c) Campaigner does not rent or sell lists of any kind. Campaigner acts simply as a passive conduit for Reseller, its Customers, and their Users to send and receive information of their own choosing. Reseller shall guarantee and ensure its Customers’ agreement to the same.
Reseller and its Customers shall not use the Campaigner Reseller platform or the Campaigner Solution to store:
(a) any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191); or
(b) any other type of information that imposes independent legal or regulatory obligations upon Campaigner.
In accordance with the Prohibited Use Policy located here, Campaigner prohibits the use of the Campaigner solution to send messages that encourage, promote, provide, sell, or offer to sell products or content relating to illegal or fraudulent activities, or services related to the same.
This includes without limitation illegal drugs; counterfeit or pirated goods; instructions on how to assemble or otherwise make bombs, grenades, or other weapons; and material that exploits children, encourages violence, or contains obscenity or sexually explicit content. This is not an exhaustive list and Campaigner, in its sole discretion, may determine whether a particular message is prohibited. Campaigner’s determination shall be final, binding, and conclusive.
Any unlawful or prohibited content stored on Campaigner’s servers may be deleted at any time by Campaigner without notice. Upon receipt of a complaint, Campaigner reserves the right, but is not obligated, to review the content of any messages sent using the Campaigner solution for compliance with applicable laws, rules, and regulations, as well as this Reseller Agreement.
Campaigner does not:
Represent or endorse the accuracy or reliability of any opinion, advice, or statement made through the Campaigner Solution. Assume liability for any harassing, offensive, or obscene/sexually explicit material distributed through the Campaigner solution by Resellers, its Customers, or their Users, or any other parties using the accounts of the foregoing.
Assume any liability for material distributed through the Campaigner solution by Resellers, its Customers, or their Users, or any other parties using the accounts of the foregoing, that violates of any other party’s rights, including Proprietary Rights and rights of publicity or privacy.
Assume liability for claims concerning unsolicited messages sent by Resellers, its Customers, or their Users, or any other parties using the accounts of the foregoing, including without limitation claims under the CAN-SPAM Act, the EU Opt-In Directive, and CASL.
7.4 Unauthorized Access Prohibited. Reseller may not attempt to gain unauthorized access to any other Campaigner Reseller platform or Campaigner solution accounts, computer systems or networks connected to any Campaigner server, the Campaigner Reseller platform, or the Campaigner solution, through hacking, password mining, or any other means.
Reseller will not obstruct the identification procedures used by Campaigner in the Campaigner Reseller platform, or the Campaigner solution. Reseller shall obtain its Customers’ agreement not to do the same.
Reseller and its Customers may not use the Campaigner Reseller platform or Campaigner solution in any manner that could damage, disable, overburden, or impair any Campaigner server or a network connected to a Campaigner server, or interfere with any other party’s use and enjoyment of the Campaigner Reseller platform or the Campaigner solution.
With regard to contact-based subscription plans, should Campaigner deem Reseller or its Customers’ cumulative account activity, including but not limited to factors such as high send volume or large contact lists, to be detrimental to Campaigner’s ability to provide the Campaigner solution to Reseller, its Customers, or others, Campaigner reserves the right in its sole discretion to move Reseller and its Customers to a volume-based subscription plan.
Repeated uploading and removing of unique email addresses in an attempt to circumvent fee schedules and billing procedures for contact-based subscription plans is prohibited.
7.5 Customer or User Violations. To the extent that Campaigner suspects that Reseller’s Customers and/or Users have violated, or will violate, any of the provisions in Section 7, Reseller agrees to work in good faith with Campaigner to investigate and resolve any issues.
Section 8: Representations, limited warranty, & disclaimer
8.1 accuracy of account information. Reseller represents and warrants that the information provided on the cover page of this reseller agreement is current, complete, and accurate. Reseller agrees to notify Campaigner promptly of any changes to this information as required to keep it current, complete, and accurate.
8.2 authority to sign. Reseller represents and warrants that the individual signing on its behalf is at least eighteen (18) years of age or, as applicable, the age of majority in the country, state, or province in which reseller resides, and that this individual possesses the legal right and ability to enter into this reseller agreement. If the individual is registering on behalf of a corporation, reseller warrants that the individual has the authority to bind the corporation.
Each party represents and warrants that it has all requisite power, authority, and approvals to enter into, execute, and deliver this reseller agreement and to perform fully its obligations hereunder, and its entering into and performance of this reseller agreement does not and will not during the term conflict with, or result in the breach of, any express or implied obligation or duty to any other party.
8.3 general disclaimer. Use of the Campaigner reseller platform and the Campaigner solution is at reseller’s, its customers’, and their users’ own risk. The Campaigner reseller platform and the Campaigner solution may be affected by numerous factors beyond Campaigner’s control, and may not be continuous, uninterrupted, or secure. Security and privacy risks cannot be eliminated. Login information may not prevent unauthorized access. Campaigner is not responsible for the use of the Campaigner reseller platform and the Campaigner solution by reseller, its customers, and their users.
8.4 no other warranties. Except for any express warranties set forth in sections 8.1 and 8.2, the Campaigner reseller platform and the Campaigner solution are provided on an “as is” and “as available” basis. There are no other warranties, representations, or conditions of any kind, express or implied, written or oral, arising by statute, operation of law, course of dealing, usage of trade, or otherwise with respect to the Campaigner reseller platform or the Campaigner solution.
Campaigner further expressly disclaims guarantee of continued availability of the Campaigner reseller platform or the Campaigner solution, or any implied warranty or condition of merchantability, satisfactory quality, durability or fitness for a particular purpose, title, or non-infringement. No representation or other affirmation of fact including but not limited to marketing literature or collateral, or statements regarding performance of the services by Campaigner that are not contained in this section 8 shall be considered to be a warranty or representation, and should not be relied upon and is not binding upon Campaigner.
Section 9: Limitation of liability
9.1 Limitation of Liability. NEITHER CAMPAIGNER NOR ANY OF ITS AFFILIATES OR SUPPLIERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS OR OTHER DIFFICULTIES OUTSIDE OF CAMPAIGNER’S OR ANY SUCH AFFILIATES’ OR SUPPLIERS’ CONTROL THAT COULD LEAD TO ANY DELAY, INTERRUPTION, OR MISDIRECTION OF MESSAGES.
THE AGGREGATE LIABILITY OF CAMPAIGNER OR ITS AFFILIATES AND SUPPLIERS, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH OR FAILURE OF AN ESSENTIAL PURPOSE), TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, OR OTHERWISE IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURRENCES SHALL IN NO CIRCUMSTANCES EXCEED THE MONTHLY RECURRING REVENUE PAID OR PAYABLE BY RESELLER TO CAMPAIGNER FOR THE MONTH DURING WHICH THE LIABILITY AROSE.
IN NO EVENT SHALL CAMPAIGNER OR ITS AFFILIATES AND SUPPLIERS BE LIABLE TO RESELLER, ITS CUSTOMERS, THEIR USERS, OR ANY OTHER PARTY FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF BUSINESS, LOSS OF REVENUES OR PROFITS, LOSS OF DATA, OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (INCLUDING BUT NOT LIMITED TO LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERIES, SERVICE INTERRUPTIONS, PERFORMANCE OR FAILURE OF THE INTERNET OR CAMPAIGNER’S INTERNET SERVICE PROVIDER, OR DELETION OR FAILURE TO SAVE DELIVERIES), EVEN IF CAMPAIGNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE.
In this section, “CAMPAIGNER” includes CAMPAIGNER and its affiliates and their respective past, present, and future directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns, and related parties.
In the event applicable law does not permit such exclusions to be completely disclaimed, these exclusions shall be interpreted as necessary to give CAMPAIGNER the full benefit of any disclaimer or limitation as permitted by applicable law.
9.2 Third Party Claims. Reseller is solely liable and responsible for any and all claims and proceedings directly or indirectly arising from, connected with, or relating to the use of the Campaigner reseller platform and the Campaigner solution by reseller, its customers, their users, or anyone using any of their accounts. Reseller is also solely liable for any breach of this agreement, violation or infringement of the rights of other parties, violation of the acceptable use policy, or violation of any applicable civil or criminal law, rule, or regulation by the reseller, its customers, or their users. Campaigner disclaims responsibility and liability for such matters to the fullest extent permitted by law.
9.3 Fair Allocation of Liability. This section 9 represents a fair allocation of risk and liability, which is reflected in the fees to be paid hereunder.
SECTION 10: Indemnification
10.1 Campaigner Indemnity. Subject to Sections 10.3 and 10.4, Campaigner will defend, indemnify, save, and hold harmless Reseller from and against any and all third party claims and proceedings directly or indirectly relating to any proven or unproven allegation that the Campaigner Reseller platform, the Campaigner solution, or any part thereof, when used by Reseller, its Customers, or their Users in accordance with this Reseller Agreement, infringes or violates a third party’s Proprietary Rights, excluding any such actual or alleged infringement or violation resulting from:
(a) the combination of the Campaigner Reseller platform or the Campaigner Solution with software, products, or services not supplied by Campaigner;
(b) any breach by Reseller of its obligations under this Reseller Agreement; or
(c) any violation of applicable law by Reseller, its Customers, or their Users.
10.2 Reseller Indemnity. Subject to Sections 10.3 and 10.4, Reseller will indemnify, defend, and hold harmless Campaigner, its Affiliates, and their respective past, present, and future directors, officers, employees, agents, representatives, subcontractors, successors, permitted assigns, and related parties from and against any claims and proceedings directly or indirectly relating to:
(a) the use of the Campaigner Reseller platform or the Campaigner Solution by Reseller, its Customers, or their Users;
(b) any negligence, misconduct, or breach of this Reseller Agreement or applicable Customer Agreement by Reseller, its Customers, their Users, or any other party for whom Reseller or any Customer or User is responsible or liable under this Reseller Agreement;
(c) the content and delivery of any of Reseller’s, its Customers’, or their Users’ messages using the Campaigner Solution;
(d) the infringement of any trademark or copyright by Reseller, its Customers, or their Users;
(e) the unavailability, suspension, or termination of all or any of the Reseller Services;
(f) the expiration or termination of this Reseller Agreement; or
(g) any violation of law by Reseller, its Customers or their Users including but not limited to violations of the CAN-SPAM Act, the Telephone Consumer Protection Act, FCC and FTC implementing regulations of the same, and similar or equivalent laws or regulations outside the United States.
10.3 Mutual Indemnity. If any claim or proceeding gives rise to an indemnity obligation by both Parties pursuant to Sections 10.1 or 10.2, the liability of each Party to indemnify the other Party will be apportioned and offset in proportion to the responsibility of each Party for the matter giving rise to the claim or proceeding.
10.4 Indemnification Procedure. Notwithstanding Sections 10.1 and 10.2, the indemnifying Party’s obligations are conditional upon the indemnified Party:
(a) giving the indemnifying Party prompt notice of the claim or proceeding;
(b) granting control of the defense and settlement of the claim or proceeding to the indemnifying Party (provided that a claim or proceeding will not be settled without the prior written consent of the indemnified Party, which consent will not be unreasonably withheld or delayed); and
(c) reasonably cooperating with the indemnifying Party regarding the defense and settlement of the claim or proceeding at the indemnified Party’s expense.
Notwithstanding anything contained in this Reseller Agreement to the contrary, the indemnified Party retains the right to participate in the defense of and settlement negotiations relating to any claim or proceeding with counsel of its own selection at its sole cost and expense.
SECTION 11: Privacy Policy, Data Protection & Storage
11.1 Privacy Policy. Campaigner is dedicated to establishing a trusting relationship with its resellers and customers based on respect for personal identity and information, by promoting the use of fair information practices. A current copy of Campaigner’s Privacy Policy is available here (https://staging-campaigner.kinsta.cloud/legal/privacy-policy/) and is incorporated herein by reference.
11.2 Storage. While a particular account is active, Campaigner will store messages sent and received for a period of up to one year, in each case measured from the date of receipt of such message. Contact lists are maintained while the account is in good standing. Campaigner shall maintain administrative, technical, and physical safeguards to protect the security, confidentiality, and integrity of Reseller and Customer information in its possession.
Reseller acknowledges that Campaigner may change its practices and limitations concerning the storage of messages at any time and that notification of any such changes will be posted on Campaigner’s website. Reseller further agrees that this feature is provided as a convenience to its resellers and customers only, and Campaigner and its Affiliates have no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store, any messages and/or other communications maintained or transmitted by the Campaigner solution.
11.3 Data Protection and Processing (Business Customers Only):
If Reseller or Customer is a business customer and the Services involve the processing of personal data which is subject to the General Data Protection Legislation (EU) 2016/679, the “GDPR”), Campaigner is a processor and Reseller and Customers are the controller in relation to such personal data (as defined in the GDPR), which is processed pursuant to this Agreement.
Reseller and Customers retain control over the content of the information submitted through the Services, and as such the types of personal data that are subject to processing cannot be categorized by Campaigner in these terms and conditions. It is assumed such personal data may include all categories of personal data relating to Reseller, or Customer’s own clients, customers, suppliers, employees, other personnel and/or other data subjects.
Reseller may notify Campaigner of the categories of data subjects or types of personal data to be incorporated into these terms by using the contact details set out in the Privacy Policy.
As processor, Campaigner shall, in relation to personal data (as defined in the GDPR) provided by Reseller or Customer or generated arising from the performance of the Services under this Agreement:
– Process such personal data in accordance with these terms and conditions and otherwise comply with Reseller documented (including email) instructions in connection with such processing. Where such instructions are provided orally, we shall keep a record of these. If at any point, Campaigner becomes unable to comply with Reseller instructions regarding the processing of personal data (whether as a result of a change in applicable law, or a change in Reseller instructions, or for any other reason), Campaigner shall promptly:
–Notify Reseller of such inability, to the extent permitted by applicable law; and
–Cease all processing of the affected personal data (other than merely storing and maintaining the security of the affected personal data) until such time as Reseller issues new instructions with which Campaigner is able to comply.
– Ensure personal data are kept confidential; – Take reasonable steps to ensure the reliability and trustworthiness of Campaigner’s personnel and any subprocessors, and take reasonable steps to ensure that all relevant Campaigner personnel, and any relevant subprocessors, have committed themselves to ensuring the confidentiality of all personal data that they process; – Ensure that, in each instance in which Campaigner engages a subprocessor, it shall notify Reseller and:–Allow Reseller a reasonable opportunity to object to the appointment of that subprocessor (and such authorization is deemed to be granted if Reseller does not object within thirty (30) days of being notified of the proposed subprocessor); and
–Enter into a binding written agreement with the subprocessor that imposes on the subprocessor the same obligations that apply to Campaigner under this Agreement with respect to the processing of personal data; subject to compliance with the foregoing, Reseller hereby generally authorize Campaigner to engage sub-processors in relation to the Services.
– At Reseller’s request and sole expense, promptly provide Reseller with all reasonable technical and organizational assistance (taking into account the nature and functionality of the Services) necessary to respond appropriately to requests from individuals to exercise their rights under the GDPR; – At Reseller’s request and sole expense, promptly provide Reseller with all reasonable assistance necessary to enable Reseller to:– Notify relevant breaches of the GDPR to the relevant authorities and/or affected individuals; – Conduct data protection impact assessments, where required; and – Obtain any necessary authorizations from any relevant regulatory authorities; Delete (or, upon Reseller’s request at or prior to termination, return) any personal data processed in the performance of the Services in Campaigner’s possession within 180 days after the termination or expiry of this Agreement, other than data in relation to which Campaigner is a controller (which will be processed in accordance with our privacy policy) and unless the applicable law of the European Union or an EU Member State requires otherwise;
– At Reseller’s request and sole expense:— Promptly provide Reseller with all information necessary to enable Reseller to demonstrate compliance with Reseller’s obligations under the GDPR, to the extent that Campaigner is able to provide such information; and
— Allow for and contribute to audits, including inspections, conducted by Reseller’s auditors or appointees, provided that such audit shall be during regular business hours, with reasonable advance notice to Campaigner and subject to reasonable confidentiality procedures. Before the commencement of any such audit, the parties shall mutually agree upon the scope, timing, and duration of the audit. Reseller may not audit Campaigner more than once annually; and
– Notify Reseller without undue delay in the event of:
— Becoming aware of any personal data breach; or — Receipt of any correspondence or communication from any individual, regulatory authority or third party regarding the processing of personal data; and
– Apply appropriate technical and security measures to protect any such personal data against unauthorized or unlawful processing and against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to such personal data.SECTION 12: Miscellaneous
12.1 Program Managers. Each Party will designate from time to time an individual as its “Program Manager” who will act as its primary contact regarding the performance of this Reseller Agreement. The current Program Managers are as set forth on the Cover Page.
12.2 Time of the Essence. Time is of the essence of this Reseller Agreement and of every provision of this Agreement.
12.3 Further Assurances. Each Party will execute any further documents and do any further acts or things that may be necessary to implement and carry out this Reseller Agreement.
12.4 Inurement. This Reseller Agreement will inure to the benefit of and be binding upon each of the Parties and their respective successors and permitted assigns.
12.5 Force Majeure. Notwithstanding any other provision, Campaigner will not be liable to Reseller, its Customers, their Users, or any other party for any delay in performing or failure to perform any of its obligations under this Reseller Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond Campaigner’s reasonable control, including without limitation:
(a) any act of God, fire, explosion, lightning, storm, flood, earthquake, accident, or natural disaster;
(b) war, terrorism, hostilities, civil war, insurrection, riot, civil unrest, commotion, or acts of a public enemy;
(c) labor shortages, strikes, lock-outs, or other labor, industrial or trade action, disputes, disruption, or disturbances (whether involving its employees or those of any other party);
(d) theft, sabotage, malicious damage, fraud, epidemic, or quarantine restrictions;
(e) material shortages or rationing;
(f) general failure, malfunction or unavailability of power, utilities, telecommunications, data communications, or related services;
(g) action, inaction, demand, order, restraint, restriction, requirement, prevention, or hindrance by any government or court; or
(h) applicable law or regulation. Any delay or failure of this kind will not be deemed to be a breach of this Reseller Agreement by Campaigner, and the time for Campaigner’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
12.6 Relationship of Parties. The Parties are independent contractors, and nothing in this Reseller Agreement or done pursuant to this Reseller Agreement will create or be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties. Without limiting the generality of the foregoing, under no circumstances will Reseller have the authority, or purport to have the authority, to legally bind Campaigner to any agreement with any Customer, User, or other party.
12.7 Assignment. This Reseller Agreement and Reseller’s rights, duties, obligations, and interests hereunder are personal to Reseller, and Reseller may not directly or indirectly, by way of merger, acquisition, amalgamation, operation of law, or otherwise, assign this Reseller Agreement or its rights, duties, obligations, or interests hereunder to any other party without the prior written consent of Campaigner, which consent may be withheld by Campaigner in its sole discretion, and any attempt to do so will be null and void and have no force or effect.
12.8 No Third Party Beneficiaries. Unless otherwise expressly provided in this Reseller Agreement, no provisions of this Reseller Agreement are intended to or will be construed to confer upon or give to any party other than Reseller and Campaigner, and their respective successors and permitted assigns, any rights, remedies, or other benefits. Without limiting the generality of the foregoing, Customers and Users will not have any rights under this Reseller Agreement.
12.9 Lawyers’ Fees. In addition to any other relief awarded in any court proceedings arising out of or relating to this Reseller Agreement, the prevailing Party will be entitled to its reasonable lawyers’ fees, disbursements, and expenses.
12.10 Notices. Except for any electronic notices provided for in this Reseller Agreement or invoices pursuant to Section 5, any notice required or permitted to be given under this Reseller Agreement will be in writing and will be delivered by personal delivery, by overnight or express courier, or by facsimile transmission to Campaigner at its head office address indicated from time to time on its website staging-campaigner.kinsta.cloud and to Reseller at the address indicated on the Cover Page, or at such other addresses and contact methods as a Party may from time to time designate in a notice to the other Party. A notice delivered personally, by courier, or facsimile will be deemed to have been received on the next business day following, as applicable, the date of delivery or the fax transmission (with confirming receipt).
12.11 No Waiver. No consent or waiver by either Party to or of any breach or default by the other Party in its performance of its obligations under this Agreement will be deemed or construed to be a consent to or waiver of a continuing breach or default or any other breach or default of those or any other obligations of that Party. No consent or waiver will be effective unless in writing and signed by both Parties.
12.12 Remedies. Except as specifically provided herein, the specific rights and remedies of a Party hereunder are cumulative and not exclusive of any other rights or remedies to which such Party may be lawfully entitled hereunder or at law or equity.
12.13 Severability. If any provision of this Reseller Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect.
12.14 Telephone Recording. Reseller acknowledges and agrees that Campaigner may record all telephone calls for the purposes of training, improvement of services, fraud prevention, and to ensure the accuracy of instructions communicated to Campaigner. All telephone recordings shall be the property of Campaigner.
12.15 Governing Law. This Reseller Agreement shall be governed and construed in accordance with the substantive laws of the Province of Ontario, without regard to conflict of law principles. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Reseller hereby consents to the jurisdiction of such province and agrees that all disputes shall be tried in the city of Ottawa, Ontario. Reseller expressly waives any right, and agrees not to have any dispute under the Reseller Agreement, tried or otherwise determined by a jury, except where required by law.
12.16 Complete Agreement. This Reseller Agreement sets forth the entire agreement of the Parties with respect to the Campaigner Reseller platform and Campaigner solution, and supersedes any and all previous communications, representations, negotiations, discussions, agreements, or understandings, whether oral or written, between them with respect to such subject matter. This Reseller Agreement may only be modified by a written instrument signed by both Parties, or their successors or permitted assigns.
SECTION 13: EXPORT CONTROLS
The Reseller Services, including any software we may provide in connection with those Services, may be subject to applicable U.S. export control laws and economic sanctions regulations. In receiving this software or our Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to this software and our Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer such software or our other aspects of our Services. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer any such software or other aspect of our Service without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of our software and Services if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
SECTION 14: BINDING ARBITRATION AND CLASS ACTION WAIVER
This section applies to you if you have a billing address in the United States.
You and we agree that all disputes and claims between you and us shall be settled by binding arbitration instead of in courts of general jurisdiction. This agreement to arbitrate is intended to be broadly interpreted and includes, but is not limited to, any dispute, claim or controversy arising out of or relating in any way to the Services, our software, our website, the Terms or any aspect of the relationship between you and us. You agree that, by agreeing to the Agreement, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and we are each waiving the right to a trial by jury or to participate in a class action. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration provision does not preclude you from bringing issues to the attention of federal, state, or local agencies. Such agencies can, if the law allows, seek relief against us on your behalf. This arbitration provision shall survive termination of these Terms and the termination of your account.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to us should be addressed to: Campaigner, ATTN: Legal Department, 700 S. Flower St., Suite 1500, Los Angeles, CA 90017, USA (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If you and we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled. You may download or copy a form Notice and a form to initiate arbitration at www.jams.com. If you are required to pay a filing fee, after we receive notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than US$10,000.
The arbitration will be governed by the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Expedited Arbitration Procedures (collectively, “JAMS Rules”) of JAMS, as modified by the Terms, and will be administered by JAMS. JAMS Rules and Forms are available online at www.jamsadr.com. The arbitrator is bound by the Terms. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration provision. Unless you and we agree otherwise, any arbitration hearings will take place by video or telephone conference. If your claim is for US$10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by JAMS Rules. If your claim exceeds US$10,000, the right to a hearing will be determined by JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement.
We may make a written settlement offer anytime before an arbitrator is selected. If the arbitrator issues you an award that is greater than the value of our last written settlement offer made before an arbitrator was selected (or if we did not make a settlement offer before an arbitrator was selected), then we will pay you the amount of the award or US$1,000, whichever is greater. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by JAMS Rules.
SECTION 15: ADDITIONAL TERMS FOR SMS MESSAGING
Reseller’s and Reseller’s customers’ use of any SMS messaging functionality provided by Campaigner is subject to the following additional terms.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL USE (WHETHER OR NOT AUTHORIZED) OF THE SERVICES, INCLUDING ANY SMS MESSAGING SERVICES, UNDER YOUR ACCOUNT. YOU AGREE TO BE SOLELY RESPONSIBLE FOR ALL ACTS AND OMMISSIONS OF YOUR OWN END USERS.
YOU SPECIFICALLY REPRESENT THAT YOU WILL SEND SMS MESSAGES ONLY IN COMPLIANCE WITH APPLICABLE LAW, WHICH MAY INCLUDE THE TELEPHONE CONSUMER PROTECTION ACT AND ANY AMENDMENTS TO THE ACT, AS WELL AS ANY FCC AND FTC IMPLEMENTING REGULATIONS.
YOU AGREE THAT IT IS SOLELY YOUR RESPONSIBILITY TO COMPLY WITH APPLICABLE LAW ON SMS MESSAGING, AND NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, YOU AGREE TO FULLY DEFEND AND INDEMNIFY CAMPAIGNER AGAINST ANY THIRD PARTY CLAIM ARISING OUT OF, OR IN ANY WAY RELATED TO, THE SMS MESSAGING FEATURES OF OUR SERVICE.
Use of SMS messaging is further subject to the terms set forth in Schedule 1. Reseller’s customers must be presented with and must agree to abide by the terms of Schedule 1.
Schedule 1
End-User means: an end-customer of Campaigner who has entered into a contract with Campaigner for the supply of the dotdigital Products. Capitalized terms not defined in this Schedule 1 shall have the same meaning given to the in the terms and conditions at https://dotdigital.com/terms (open in a new tab).
1. End-User’s Obligations
1.1
The End-User warrants that it shall not: (a) use the Dotdigital Services in any way so as to bring the Dotdigital Services or dotdigital into disrepute; (b) use the Dotdigital Services to send unsolicited or unauthorised advertising, promotional material, ‘junk mail’, ‘spam’, ‘chain letters’ or pyramid schemes including but not be limited to illegal goods or dotdigital Services, internet lead-gen, multi-level marketing, affiliate marketers, marketing or sending of commercial messages without proper express consent (unless agreed by dotdigital otherwise), or payday loans; (c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or materials transmitted through the Dotdigital Services; (d) use the Dotdigital Services in a manner which is unlawful, harmful, threatening, abusive, harassing, tortious, indecent, obscene, libellous, menacing or invasive of another person’s privacy; (e) use the Dotdigital Services in a manner which infringes the Intellectual Property, proprietary or personal rights of any third party, including data subjects; (f) misuse the Site by introducing viruses, trojans, worms, logic bombs or other material which is technologically harmful; (g) attempt to gain unauthorised access to the Site or Dotdigital Services, the server on which the Site or Dotdigital Services are stored or any server, computer or database connected to the Site or Dotdigital Services; or (h) attack the Site or Dotdigital Services via a denial-of-service attack or a distributed or malicious denial-of service attack.
1.2
The End-User warrants that it shall: (a) comply and ensure that its use of the Dotdigital Services complies with all Codes applicable to the country in which the End-User is registered and recipients of messages reside; (b) provide all reasonable assistance required by dotdigital to enable dotdigital to comply with any requirements or conditions imposed by such Codes; (c) provide, dotdigital, relevant authority, user group or regulator of the Codes with all information or material reasonably requested in order to carry out any investigation in connection with the End-User’s use of the Dotdigital Services; and (d) not use the Dotdigital Services to upload or send to records purchased, rented or acquired from a third party in any way. Dotdigital has no responsibility or liability whatsoever howsoever arising directly or indirectly to the End-User for the content of any messages sent using the Dotdigital Services or messages being sent to recipients in breach of the End-User’s obligations contained in this clause 5.2.
1.3
In relation to email messages sent using the Dotdigital Services, End-User warrants that:
(a) the End-User will identify itself in every email according to applicable law, but at least with postal address, register number, phone number, email address data and tax registry, where applicable; and
(b) it will not use the Service to send email communications advertising or promoting email lists or services supporting unsolicited bulk email. Any End-User who uses the Dotdigital Services to promote or advertise email lists or services supporting unsolicited bulk email will have their account disabled without notice and with immediate effect and no refund of Charges or other payments to dotdigital will be made. Unsolicited bulk email support services may include but are not limited to: services providing service to known spam operations listed on Register of Known Spam Operations (ROKSO), services providing ‘bullet-proof hosting’ for spam service purposes, services obfuscating or anonymising spam senders, services selling or providing hosting for the sales or distribution of spamware or address lists, and networks knowingly hosting spammers as either stated or de facto policy.
Dotdigital accepts no responsibility or liability to the End-User for any direct or indirect loss or damage that may arise under this clause 5.3.
1.4
In relation to SMS messages sent using the Dotdigital Services, End-User warrants that
(c) it will not attempt to use Dotdigital Services to access or allow access to emergency services or impersonate any other entity; and
(d) if End-User has purchased a short code, then End-User will not change the use of that short code from the use stated in any documentation in relation to approval of the short code without first obtaining an amendment to any application for approval of the short code under the new use.
Further, should End-User make use of a long telephone number(s), dotdigital reserves the right to reclaim any phone number from End-User’s account if, in dotdigital’s opinion, End-User does not send sufficient traffic over that phone number such that the phone number is underutilized. Dotdigital accepts no responsibility or liability to the End-User for any direct or indirect loss or damage that may arise under this clause 5.4.
1.5
dotdigital monitors messages created by the End-User sent through the dotdigital Services. If dotdigital considers in its reasonable opinion that the End-User is sending messages through the dotdigital services in breach of clause 5.1 to 5.4 above, dotdigital may at absolute discretion (taking into account the End-User’s track record of use of the Dotdigital Services): (a) suspend provision of the Dotdigital Services; (b) block End-User’s access to the Dotdigital Services for such time as in each case is reasonable; and (c) add any recipient contact details to its global suppression list (“GSL”). Dotdigital will usually provide the End-User with prior notice of any suspension, blocking or addition of an email to the GSL, unless immediate action is necessary in the circumstances. Dotdigital accepts no responsibility or liability to the End-User for any direct or indirect loss or damage that may arise under this clause 5.5.
1.6
Where dotdigital suspends or blocks access to the Dotdigital Services pursuant to clause 5.5 above, a member of the dotdigital compliance team shall contact the End-User to: (a) inform the End-User of the action taken or proposed action (where applicable) giving rise to the suspension; (b) explain why the access to the Dotdigital Services is suspended or blocked; (c) to inform the End-User of the remedial actions that the End-User needs to take to rectify the issues with the End-User’s use of the Dotdigital Services; (d) inform the End-User of any applicable de-listing fee payable to dotdigital (if necessary and determined in dotdigital’s sole discretion); and © to agree on the timescale for the End-User to take the necessary remedial actions. Dotdigital shall only reactivate the Dotdigital Services once the End-User has taken the remedial actions. If the End-User fails to take the remedial actions within the timescale agreed, dotdigital reserves the right to terminate these Terms upon giving notice to the End-User and the End-User shall become immediately liable to pay all outstanding fees for remainder of the unexpired Term.
1.7
The End-User will keep its password and other access details for use with the Dotdigital Services confidential and restricted to those members of staff who need to know such details and shall ensure all such staff are aware of the confidential nature of such information and treat it accordingly. The End-User shall notify dotdigital immediately if it believes that such information is no longer secret. The End-User is solely responsible for all activities resulting from use of the End-User’s password or account. The End-User will not permit any person to access the Dotdigital Services for any unauthorised purpose that would constitute a breach of these Terms.
1.8
Without prejudice to its other rights in these Terms dotdigital reserves the right to prevent the sending of any messages forming part of the Dotdigital Services or any other item or material made available via the Dotdigital Services by the End-User at any time and without notice, where the content is in dotdigital’s reasonable opinion a breach of these Terms. Dotdigital accepts no responsibility or liability to the End-User for any direct or indirect loss or damage that may arise under this clause 5.8.
1.9
The End-User is not permitted to conduct vulnerability scanning, or any form penetration testing against the dotdigital Services or application servers.
2. Ownership & Use of the Intellectual Property Rights
2.1
dotdigital hereby grants to the End-User a personal, non-exclusive and non-transferable licence to use the Intellectual Property and/or Materials for the duration of these Terms strictly in accordance with these terms only. End-User shall not be entitled to use the Intellectual Property and/or Materials for any other purpose than the use of the Dotdigital Services, including, without limitation, that the End-User shall have no right to copy, translate, reproduce, adapt, reverse engineer, decompile, disassemble, create derivate works, modify, sell, rent, lease, transfer, assign, sub-licence, make any representations, warranties or guarantees with regard to the Intellectual Property and/or Materials in whole or part except as permitted by law.