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Introduction to Campaign Manager Terms of Use

IMPORTANT - READ CAREFULLY: These "Terms of Use" (sometimes referred to as this "Agreement") constitutes a legal agreement between you and Peach Digital Ltd a Scottish limited liability company, ("Peach Digital" "we," or "us"). You are a User (or will become a User if you agree to our Terms of Use by clicking below). The "Term" is the time during which you are entitled to use our website to create and send out electronic newsletters and other digital content. If an individual purports, and has the legal authority, to sign these Terms of Use electronically on behalf of an employer or client, "you" refers to the employer or client. If not, "you" refers to the individual signing hereon. You are responsible for assuring that all the terms and conditions of this Agreement are complied with.

Campaign Manager Terms of Use

WARNINGS OF SERIOUS LEGAL CONSEQUENCES

Warning: Under Section "15" of these Terms of Use, if you engage in certain conduct, such as violating laws that regulate sending out and the content of bulk email, try to take advantage of us in violation of our Terms of Use by taking such actions as using our servers to host images for your website, instead of just emails you send using Campaign Manager, sending out emails created using Campaign Manager through another service or failing to pay an amount you owe us, we will be entitled to collect from you the higher of a pre-set amount or a multiple of your charges for one year on an annualised basis (which is a reasonable pre-estimate of the actual damages we would likely suffer from such conduct) plus legal fees. We expect our customers to act with integrity and follow our rules in order to help us maintain our reputation as having customers who only send bulk email to people who have consented to receiving them or with whom they have had a relationship from earlier selling or licensing (or negotiating to sell or license) a product or service and to not otherwise abuse our system.

Part 1

(Applies to All Users of Campaign Manager)

1 Who We Are

"Campaign Manager" is a trade name and registered service mark of Peach Digital Ltd, a Scottish limited liability company, which owns and operates the website with the URL: http://campaignmanager.peachdigital.com (the "Website").

2 Purpose

The purpose of these Terms of Use (this "Agreement") is to set forth the terms and conditions under which you are permitted to use our email/electronic newsletter/SMS creation, distribution and management system (the "Services"). Any email or SMS, including but not limited to any email newsletters, sent out using the Services, are referred to herein as a "Message."

3 Changes

We reserve the right to change any of the terms of this Agreement by posting the revised Terms of Use on our Website and/or by sending an email to the last email address you have given to us. Unless the Term is terminated within ten (10) days, this new Agreement will be effective immediately with respect to any continued or new use of the Services.

4 Eligibility

We require that any User be at least eighteen (18) years of age. By using the Services, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Services does not violate any applicable law or regulation. Your uploads may be deleted and your subscription may be terminated without warning, if we have reason to believe you are under eighteen (18) years of age.

5 Charges and Payments

5.1 Account Charges

The amount and frequency of charges for your use of the Campaign Manager system will be agreed with you prior to activation of your account.

You will be sent periodic invoices for these Charges as agreed. Invoices are payable within 10 days of presentation. We may suspend our Services to you if payment of Charges is not made in a timely fashion.

5.2 Credit Bundles

We may include in our charges for the use of the System bundles of pre-paid Email credits. For any month for which you have already paid, for which the number of Emails you send out exceeds the limits of the pre-paid bundle, except as otherwise provided in this Agreement, you will be required to pay an additional charge at the standard Email Credit rate published on the web site, and this excess charge will be included in the next periodic invoice. If the Term ends before such payment is due, you will still be required to make one payment at the higher level.

Whenever you increase the number of Emails that you are going to be sending so that you are exceeding the pre-agreed bundle, we may, at our sole discretion, require you to pay the difference in the monthly payment before the next Email is sent out.

5.3 Pay-as-You-Go-Plans

You may elect to buy "Email Credits" to use our Services, as explained on the "Pricing" page of our website. If you elect a "Pay-as-You-Go Plan," you will still be considered a "User" and all the terms of this Agreement will still apply to you other than the requirement that you pay us periodically.

5.4 Email credits

An Email credit is directly equivalent to the sending of a single e-mail. Email credits may be purchased as part of a bundle agreement in which case they are valid for the period covered by the bundle agreement. Email credits purchased on a Pay-As-You-Go basis are invalid for the duration of the Term of this agreement.

5.5 SMS Credits

SMS Credits must be purchased in order to use the SMS Broadcast service. A single SMS message may cost more than 1 SMS Credit due to its length or the operator of the recipient’s mobile network. Your account must have sufficient credits available to allow the Campaign to be delivered. We will advise you of the Credit cost of a Campaign prior to dispatch of the Campaign.

SMS Credits are valid for the duration of the Term.

5.6 Refunds

We are required to provide a refund only if we terminate our Services to you without cause before the end of a month for which you have paid. There is no other circumstance in which you will be entitled to a refund from us. We may, at our sole discretion, offer refunds in other situations subject to any User seeking such refund applying for the refund in accordance with the requirements we post on the website, which may be changed from time to time.

6 Term, Termination and Removal

Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. We may suspend our Services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment or reimburse you for unused Email Credits if we terminate you without cause. We will not refund and/or reimburse you in such manner, if there is cause, such as your using our system to send bulk Emails to people with whom your relationship does not meet the requirements of 11(b) below. Once terminated, we may remove any of your electronic newsletters or other emails and related data and files from our Website and any other storage. Additionally, if you do not log in to your account for 12 or more months, we may deem your account "inactive" and permanently delete your account and all data associated with it.

7 Account and Password

You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.

8 Proprietary Rights Owned by Us

You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.

9 Proprietary Rights Owned by You

You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.

10 General rules

You agree to the following:

  1. You will not incorporate into your Email any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Email or you are not otherwise permitted to use.
  2. You will not post on the Website, including in any Emails created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.
  3. You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
  4. You will not share your password.
  5. You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
  6. You will not include in any Emails any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party's rights, including, but not limited to, copyrights and privacy and publicity rights.
  7. You will not set up multiple accounts for any individual, organization or entity or in order to send substantially similar content unless you are part of a franchise.
  8. You will not import or incorporate into any lists, emails or uploads to our servers any of the following information: Social Security Numbers, passwords, security credentials, or sensitive personal information of any kind.
  9. You will not send transactional messages through Campaign Manager unless you use our Transactional Service.

11 Anti-Spam and Abuse Related Rules

You agree to the following:

Definition of SPAM: We have adopted the definition of Spam set forth on the Spamhaus website at http://www.spamhaus.org/definition.html. The first line of the Spamhaus definition reads:

The word "Spam" as applied to Email means Unsolicited Bulk Email ("UBE").

It is a concern to us if you use Campaign Manager to send any unsolicited email to anyone with whom you have no relationship. It is much more of a concern, and more likely to cause our system to be blocked by various ISP's, for you to send an unsolicited email to an entire list of people you don't know.

11.1 Permission Lists Only

You may use Campaign Manager only to send Emails to individuals and entities that either:

Possibility 1 - Consent Obtained

A. gave or give you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission and either:

  1. Consent Given Recently gave you the permission within the prior 12 months; or
  2. Consent Given More Than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months; or

Possibility 2 - Sold or Negotiated to Sell Product or Service

B. gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:

  1. Recent Sale or Negotiation such sale or negotiations occurred within the previous 12 months; or
  2. Sale or Negotiation Occurred More than One Year Earlier you sent them a promotional email, which was not objected to, within the prior 12 months.

If you send Emails to a list, and you get an unusual amount of SPAM complaints (more than 1 out of 1,000), ISPs will begin blocking future emails from your company. They will also request that Campaign Manager shut down your account. So if you don't have proof that each recipient on your list has opted-in to receive your emails, or otherwise meets the above requirements, don't import them into Campaign Manager.

Requirements

You agree that you will use:

  • No purchased lists.
  • No rented lists (even if they "opted in").
  • No 3rd party lists whatsoever.

You should only use Campaign Manager to send newsletters, updates, and promotions to people who specifically requested email from you, or otherwise meet the requirements of A or B above.

If you don't have a permission list yet, you can add a Campaign Manager signup form to your website so that you can grow your list.

11.2 Prohibited Content and Industries

You may not use Campaign Manager to send anything offensive, to promote anything illegal, or to harass anyone. You may not send:

  • Pornography or other sexually explicit Emails
  • Emails offering to sell illegal substances
  • Emails that violate the CAN-SPAM Law

Also, there are some industries that send certain types of content that result in higher than normal bounce rates and abuse complaints, which in turn jeopardize the deliverability of our entire system. No offense intended, but because we must ensure the highest delivery rates possible for all our customers, we do not allow businesses that offer these types of services, products, or content:

  • Illegal goods or services
  • Escort and dating services
  • Pharmaceutical products
  • Work from home, Internet Lead-gen, Make money on online opportunities, etc.
  • Online trading, day trading tips, or stock market related content
  • Gambling services, products or gambling education
  • Multi-level marketing
  • Affiliate marketers
  • Credit repair, get-out-of-debt content
  • Mortgages and/or Loans
  • Nutritional Supplements, Herbal Supplements or Vitamin Supplements
  • Pornography or nudity in content
  • Adult novelty items or references in content
  • List brokers or List rental services
  • Marketing or sending commercial email without proper permission

Generally speaking, if you're in an industry that is frequently associated with spam then Campaign Manager is not a suitable product.

12 Who Can Use Campaign Manager

If you do not meet these eligibility requirements, you may not use the Campaign Manager service:

  • You must be at least 18 years of age, and be able to form legally binding contracts under applicable law.
  • You must complete the registration process and agree to the terms of this Agreement. All contact information you submit must be true, complete, and up to date.
  • Peach Digital does reserve the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, at its sole discretion.

13 Data Archiving

Occasionally, we may need to archive and/or delete data to make room for new data. Here are our data archiving rules:

Any list that you haven't sent an email to in 12 months may be archived. Because emails change so often, it's recommended you stay in contact with your lists more frequently than every year. Sending to a one-year-old, dormant list often results in too many hard bounces, which can jeopardize the deliverability of Campaign Manager for all our customers. If you want to keep your own copy of all of your data, including reports, lists, campaigns, and templates, then you can use our Export Features, which allow you to export the information in your Campaign Manager account as a .csv file. Warning depending on the size of your account exports may take a while to complete.

14 Bandwidth Abuse: Image hosting, API, Tracking

You may not use our bandwidth for anything other than your Campaign Manager email marketing. In this regard, you agree to the following:

  • Unlike some other email marketing services, we provide image hosting for your email campaigns totally free. This doesn't mean you can host images on our servers for other uses, like your website. If we detect that you're using our hosting services for anything other than your email campaigns, we have the right to delete the image.
  • Not to build a campaign in Campaign Manager, then send it using some other delivery tool. If you do that we may, and reserve the right to, shut your account down, replace all images in your campaign, and redirect all hyperlinks to point somewhere else.
  • If you integrate with Campaign Manager using our API, you must use efficient programming, which will not cause too many requests to be made in too short a period. We reserve the right to throttle your API connections, or suspend or terminate your Campaign Manager account.

15 Fees, Refunds, Account Suspensions, Etc.

You agree:

  • Campaign Manager reserves the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.
  • If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
  • If, for some reason, we are unable to process your credit card order, we will attempt to contact you by email and we will suspend usage of your account until your payment can be processed.
  • You agree to pay for all emails you send from your account, even if messages are blocked by any third party (we have no control over your recipients' email servers, ISP availability, personal spam filter settings, etc)
  • For pay-as-you-go (prepaid) accounts, your email credits do not expire. However, if you do not log in to your account at least once for 12 months, your account (including all campaigns, lists, and other data) may be deleted permanently from our system.

16 Avoiding Spam Related Problems

As an email marketing service provider, we feel it's our duty to be extra vigilant about preventing spam related abuses. It's not just bad for the Internet community in general—if illegal and/or abusive spam gets sent from our system, we'd get blocked by all major ISPs, which would make our system useless for the thousands of users who depend on us.

It's in our best interest to keep our system clean, because our reputation and deliverability depends on it. So here's what we do:

Right to Review Email Campaigns

We, including our employees and independent contractors, are permitted to copy and transmit copies of the content from your email campaigns to develop algorithms, heuristics and computer programs ("Tools") to help us more efficiently spot problem accounts and to use such Tools, together with personal viewing by employees and or independent contractors, to uncover Users who violate either these Terms of Use or applicable law.

Feedback Loops w/ISPs

Campaign Manager has been delivering emails since 2001, and has established relationships with most major ISPs. They know us. We know them. We're on feedback loops (FBL) and reporting systems with these ISPs:

  • AOL
  • Hotmail/MSN
  • Yahoo

When a recipient clicks their "this is spam" button in their email program, a FBL report is sent to us. We analyze the data, trace it back to the sender that caused the complaint, remove the complainer from the sender's list, and track future complaints about that campaign. If complaints exceed a reasonable threshold based on list size, we take appropriate action (which sometimes means permanently shutting down a Campaign Manager account) to keep our servers clean and off blacklists. To prevent this from happening to you, please read section 11 above.

Reporting Abuse

We take abuse reports seriously at Campaign Manager. If you've received spam that you think came from a Campaign Manager user, we want to hear about it. Please report the fact that you received spam from what appears to be a Campaign Manager user to us by using this email address: abuse@peachdigital.com

Report Bad Senders

Every campaign sent from Campaign Manager has an embedded Campaign Tracking ID (CID) in the email's header that makes it easy for recipients to report suspected spam. You may forward any such email to abuse@peachdigital.com for investigation.

If the campaign you received does not contain a CID, it didn't come from Campaign Manager. It was probably just spoofed to look like it came from Campaign Manager (something that inevitably happens to everyone online). Learn more about spoofing.

17 No Warranties

To the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.

18 Limitation of Liability

To the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and the services including any downloads from the website. under no circumstances shall we or any of our employees or representatives be liable for any indirect, punitive, special or consequential damages even if we or any of our employees or representatives have been advised of the possibility of such damages. our total liability in any event is limited to the amount, if any, actually paid by you for use of the website and the services for the one month period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.

19 Indemnity

You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, legal fees) resulting from any claims not permitted under this Agreement due to a "Limitation of Liability" or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this Website or the Services. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, legal fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.

20 Liquidated Damages

The parties agree that we may recover liquidated damages, in lieu of any other damages that may have been recoverable, for certain types of breaches of these Terms of Use, which we refer to as "Abusive Conduct." Liquidated damages are being made available for specified situations in which proving the actual damages would likely be impossible. The liquidated damages are being set at a reasonable pre-estimate of the damages that would be incurred as a result of the particular type of breach. The particular type of breaches that constitute Abusive Conduct, and the liquidated damages for each type are as follows:

Abusive Conduct

 

Liquidated Damages

(a) violations of provisions of this Agreement designed to avoid Campaign Manager being viewed as a source of spam such as sending Emails to people who have not consented to receiving bulk emails from you in the immediately preceding 12 months and to whom you are not otherwise authorized to send Emails under 11.1 above; sending Emails offering the types of products or services set forth in 11.2 above; or sending Emails that include false or misleading headings or other content or otherwise violate anti-SPAM laws, i.e., laws that restrict and regulate the sending of bulk emails.

Five times the total of our then current monthly charges over a period of 1 year (i.e. 5 times 12 times our monthly charges), but not less than £900

(b) violations of provisions of this Agreement designed to protect Campaign Manager from its users taking actions to use Campaign Manager's resources in a way not permitted hereunder such as using our Services to host images other than for Emails you send out using the Services such as for your website; or sending out any Emails created using the Services, other than via the Services.

Four times the total of our then current monthly charges over a period of 1 year (i.e. 4 times 12 times our monthly charges), but not less than £720

(c) not paying an amount due within ten (10) days after a demand by us.

Three times the total of our then current monthly charges over a period of 1 year (i.e. 3 times 12 times our monthly charges), but not less than £540 in addition to the sum owed

21 Legal fees

In the event we file an action against you claiming you breached this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney's fees in addition to any damages or other relief which we may be awarded.

22 Disclaimers

We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.

23 Reporting Violations

If you become aware that any other person is violating any of the terms and conditions of this Website, please notify us immediately. If you believe that any person has posted material in violation of any copyrights that you may have, you may notify us in accordance with our Copyright Policy. If you believe that any user of this Website has posted materials in violation of any other rights that you may have, you may notify us in accordance with our Removal Policy.

24 Assignments

You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity at our discretion.

25 Compliance With Law

In using the Services, you agree that you will comply with all applicable laws.

26 Applicable Law and Jurisdiction

This Agreement will be governed by the laws Scotland. Except as otherwise provided in this Section below, each of the parties does hereby agree that any dispute related to this Agreement, any other agreement between the parties, the Privacy Policy or the Services, will be decided by the courts located in Scotland and agrees that that party is subject to the jurisdiction of such courts in such locality.

Part 2

(Applies to All Users to the extent they Use Campaign Manager to Send Any Form of Email to Residents of the European Economic Area ("EEA") Which Is Composed of the Users of the European Union ("EU") Together with Iceland, Norway and Liechtenstein)

27 Warranties of Compliance

You represent and warrant that in compiling your Email distribution list, sending Emails via the Campaign Manager Services and collecting information as a result of individuals visiting your website or otherwise, with respect to your customers and potential customers who reside in the EEA, you:

(a) Will have clearly described, and will continue to clearly describe, in writing how you intend to use any data collected, including for sending Emails if you obtain express consent from your customers and potential customers to use the data in that manner, and include an express consent to transfer the data to Campaign Manager as part of this process, and otherwise comply with whatever privacy policy you have posted.

(b) Represent and warrant that you have complied, and will comply, with all data protection and privacy laws and regulations applicable to the countries in which you are sending any form of email via Campaign Manager including, for example, with respect to the United Kingdom, the Data Protection Act, and the regulations relating to the European Union Privacy and Electronic Communications Directive. In this regard, you represent and warrant that you have collected, stored, used and transferred all data relating to any individual in accordance with all data protection laws and regulations relating to the country in which such individual resides and obtained all necessary consents to enable Campaign Manager to receive and process that data and forward communications to that individual on your behalf.

(c) You further agree to indemnify and hold us harmless from any losses, including legal fees, resulting from your breach of any part of the foregoing warranties.

Part 3

(Additional Provisions Applicableto All Users)

28 Miscellaneous

28.1 Force Majeure

We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow downs over the internet or any third party internet service providers.

28.2 Survivability

The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.

28.3 Severability

The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.

28.4 Interpretation

The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.

28.5 Amendments

No amendment or other change of this Agreement shall be effective except as either expressly permitted under these Terms of Use or agreed to in writing between the parties.

28.6 Privacy Policy

You agree that we may access, collect, use and disclose your information as set forth in our Privacy Policy. In this regard the terms of the Privacy Policy are to be treated as if they were added to and part of this Agreement and shall be binding on all parties hereto.

28.7 Further Actions

You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.

28.8 Notification of Security Breach

In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a "List"), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.

28.9 Amendments

No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.

28.10 Notices

Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website. Any notice to us will be effective when delivered to us or such replacement addresses as we may later provide on the Website.

28.11 No Changes in Agreement at Request of User

Because of our huge number of Users, we cannot, as a practical matter, change this Agreement for any one User or group of Users. If we did that, keeping up with the changes alone would be a logistical nightmare. In addition one reason we are able to offer one of the most powerful email/electronic newsletter creation, distribution and management systems at a low price is that we are able to use this Agreement to reduce our financial risks.

29 Entire Agreement

The terms of the Privacy Policy posted on this Website are incorporated by reference herein. This Agreement, including such policy which is incorporated by reference herein, embody the entire agreement and understanding of the parties, and supersedes all prior agreements, representations and understandings between the parties hereto, relating to the subject matter hereof.

Contacting us

You can contact us by phone, email, fax or mail at the following addresses:

Peach Digtial Ltd
134-138 West Regent Street
Glasgow G2 2RQ

Tel: +44 141 204 0499
Fax: +44 141 285 0221

Email: info@peachdigital.com

Our registered office address is:

Glendevon
DUchal Road
Kilmacolm
Renfrewshire PA13 4AY