Terms of Use

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES AVAILABLE AT CAMPAIGNMONITOR.COM (the “Site”). IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.

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

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

In order to use the Services, You must:

  1. be at least eighteen (18) years old;
  2. complete the registration process;
  3. agree to these Terms of Use; and
  4. provide true, complete, and up to date contact information to Campaign Monitor.

By using the Services, You represent and warrant that You meet all the requirements listed above. Campaign Monitor may refuse to provide the Services, suspend or close Your account, and change eligibility requirements at any time in accordance with the terms of this Agreement. If You have any questions, feel free to send an email to info@campaignmonitor.com and a Campaign Monitor representative will contact You shortly.

SECTION 1: DEFINITIONS

In addition to terms defined elsewhere in this Agreement, the following definitions will apply to capitalized words in this Agreement:

  1. Add-On Features” has the meaning ascribed in Section 2.C.
  2. Additional Terms” has the meaning ascribed in Section 2.C.
  3. “Administrator” has the meaning ascribed in Section 4.B.i.1.
  4. “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control of a party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of a party or the right to receive more than fifty percent (50%) of the profits or earning of the entity.
  5. “Beta Features” has the meaning ascribed in Section 3.C.
  6. “End Clients” has the meaning ascribed in Section 4.A.i.
  7. “EU Directive” means EU Data Protection Directive 95/46/EC.
  8. “Full Access User” has the meaning ascribed in Section 3.D.i.
  9. “Intellectual Property Rights” means any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction whether existing now or acquired hereafter including any application or right to apply for registration of any of these rights.
  10. “Law(s)” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority, including where applicable, the EU Directive. Where relevant to the Customer’s or User’s obligations, when assessing “applicability”, Customer and User shall take into account the Governing Law in Section 16 and the Laws relating to both the jurisdiction where User is using the Services and the jurisdiction where the Subscriber resides.
  11. “Malicious Code” means harmful or malicious code, files, scripts, agents, programs, or the like designed or intended to have, or capable of performing or facilitating, any of the following functions: disrupting, disabling, harming, corrupting, or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system, database, or network (or other device on which such code is stored or installed), including but not limited to viruses, worms, time bombs, and Trojan horses.
  12. “Order Term” means the period specified in an Ordering Document (including any renewals of the same) during which Customer will have access to the Services.
  13. “Ordering Document" means any form (including an electronic form), either executed by the Parties or agreed to by the Customer online, that sets out the commercial terms of Customer’s purchase. All Ordering Documents shall be deemed to incorporate, and shall be subject to and governed by, this Agreement.
  14. “Services” means the Site, Software, Statistical Data, products, services (including any applicable support services), applications, tools and other resources made available by Campaign Monitor or accessible at campaignmonitor.com (or other website(s) owned by Campaign Monitor) and all related product and service names, logos, design marks, slogans, and all other material comprising the Site, Services, and Software.
  15. “Software” means any software, documentation, or data related to the Services.
  16. “Statistical Data” has the meaning ascribed in Section 5.C.
  17. “Sub-Account” has the meaning ascribed in Section 4.C.
  18. “Subprocessor” means a service provider that processes data on behalf of, and as dictated by, Campaign Monitor.
  19. “Subscriber” means any individual: 1) whose email address is included in a Subscriber List, 2) whose information is stored on or collected via the Services, or 3) to whom Users send emails to or otherwise engage or communicate with via the Services.
  20. “Subscriber List” is a list of Subscribers uploaded to the Services or created on or via the Services.
  21. “Subscription Tier” has the meaning ascribed in Section 8.B.
  22. “Subscription Plan” means the subscription type chosen by the Customer on an Ordering Document which sets out the base set of Services ordered by the Customer. Different Subscription Plans shall have different Services associated with them as further described here: Campaign Monitor Pricing and Plan Comparison.
  23. “Third Party Applications” means any software, products, tools, or applications that are used in connection with the Services that are not owned by Campaign Monitor.
  24. “User” means any person accessing and/or using the Services through Customer’s or End Clients’ account.
  25. “User Content” means anything, excluding Statistical Data, Users or Subscribers post, upload, share, store or otherwise provide through or using the Services (including, without limitation, any and all emails, messages, materials, images, text, and other content).

SECTION 2: AGREEMENT STRUCTURE

  1. Other Incorporated Documents. This Agreement hereby incorporates the Campaign Monitor Anti-Spam Policy available at campaignmonitor.com/policies, as updated from time to time (hereinafter, “Anti-Spam Policy”) and Campaign Monitor’s Privacy Policy available at campaignmonitor.com/policies, as updated from time to time (hereinafter, “Privacy Policy”). This Agreement, together with any Ordering Documents referencing this Agreement, the Anti-Spam Policy, Privacy Policy, and any applicable Additional Terms constitutes the entire agreement between Customer and Campaign Monitor regarding the Services and supersedes all prior and contemporaneous agreements, representations, and understandings, whether written or oral, concerning its subject matter. Notwithstanding the foregoing, if Customer and Campaign Monitor execute a written agreement for use of the Services, the terms and conditions of the executed agreement shall prevail to the extent of any conflict with the terms of this Agreement. In the event of any conflict between the terms of this Agreement and the other incorporated documents, the conflict shall be resolved in the following order of precedence:
    1. Anti-Spam Policy,
    2. Privacy Policy,
    3. Additional Terms,
    4. Agreement, and
    5. Ordering Document.

    The above order of precedence will apply unless: 1) the conflicting term is expressly stated to vary the conflicting provision of the controlling document; 2) the controlling document specifically provides that a lower order document may vary the applicable term of the controlling document; or 3) the Parties expressly agree otherwise. All rights not expressly granted herein are reserved by Campaign Monitor.

  2. Agreement Modifications. This Agreement was last modified on the date listed at the end of this Agreement (“Last Modified Date”). Campaign Monitor may make modifications to this Agreement by posting a revised Agreement on the Site and/or by sending an email to a Full Access User (or Administrator, if applicable). Customer acknowledges and agrees that use of the Services by Customer after the Last Modified Date constitutes Customer’s acceptance of the modified terms, that such modified terms shall become effective on the Last Modified Date, and that it is Customer’s responsibility to check this website regularly for modifications to this Agreement. No modification, addition, deletion or waiver of any rights under this Agreement will be binding on Campaign Monitor unless signed by a duly authorized representative of Campaign Monitor. To the extent the provisions of this Section 2.B are held unenforceable, they shall be modified or severed in accordance with Section 16.I.
  3. Additional Terms. Additional terms may apply to add-on features, Beta Features, and/or any managed services (each an “Add-On Feature”) offered by Campaign Monitor. These additional terms, available at campaignmonitor.com/policies, will be considered incorporated into this Agreement when Customer, a Full Access User, or an Administrator activates the Add-On Feature or purchases an Add-On Feature on an Ordering Document (the “Additional Terms”). Where there is a conflict between this Agreement and the Additional Terms, the Additional Terms will prevail to the extent of the conflict.

SECTION 3: SERVICES, OBLIGATIONS, AND RESTRICTIONS ON USE

  1. Modification of the Services. Subject to Section 13.C, Campaign Monitor, in its sole discretion, reserves the right to modify the Services, or any features of the Services at any time and for any purpose, including but not limited to, improving performance or quality, correcting errors, or maintaining competitiveness.
  2. Prerequisite to Use of Services. Customer is responsible for obtaining all hardware, software and services, which are necessary to access the Services.
  3. Beta Features. From time to time, Campaign Monitor may make certain services and/or features available to Customer for use which are still in their beta stage (“Beta Features”). Customer acknowledges and agrees that Beta Features have not been fully tested and are provided on an ‘as is’ basis. Customer further acknowledges and agrees that, to the fullest extent permitted by Law, Campaign Monitor makes no representations, warranties or guarantees in relation to such Beta Features.
  4. Customer’s Obligations. Customer agrees to:
    1. when using the Business or Organization version of the Services, designate at least one User within Customer’s account to have ‘Full Client Access’ who will have administrative privileges within the account and who Customer represents and warrants is authorized to act on behalf of Customer (a “Full Access User”);
    2. keep contact information for the Full Access User updated and promptly respond to queries from Campaign Monitor sent to the Full Access User’s email address;
    3. be responsible for Users’ compliance with this Agreement;
    4. be solely responsible for the accuracy, quality, integrity and legality of the User Content and of the means by which Customer acquires User Content;
    5. be responsible for the nature and content of all of the User Content (including all content, materials, and information that Users, End Clients, and/or Subscribers upload and/or transmit using or relating to the Services);
    6. use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Campaign Monitor promptly of any such unauthorized access or use;
    7. be responsible for ensuring that User’s computer systems, technology or other similar items used in connection with the Services do not interfere with or disrupt the integrity or performance of the Services;
    8. adopt and maintain a privacy policy that complies with all requirements imposed by Laws (particularly as it relates to notice, consent, and disclosure in connection with the collection, sharing, and use of any Subscriber information using the Services);
    9. procure that each User complies with the terms of this Agreement as if they were a party to it, including but not limited to, the Anti-Spam Policy; and
    10. use the Services only in accordance with this Agreement and Laws.
  5. Restrictions on Use. Except where the following restrictions are prohibited by Law, Customer shall not, and shall not permit any Users or third parties to, directly or indirectly: (1) violate the Anti-Spam Policy; (2) send or forward personal mail through the Services; (3) send mail created using the Services through another service; (4) send emails to individuals under the age of 13; (5) upload or provide any social security numbers, driver’s license or state identification number or other government related identifier, financial account numbers (i.e., credit card, checking account, savings account, etc.), medical, employment, criminal records, or insurance numbers, passport numbers, or other highly sensitive personally identifiable information (collectively, “Sensitive PII”) to the Services or use the Services to collect, transfer, or store any Sensitive PII; (6) host images or content on Campaign Monitor servers or through Campaign Monitor’s Services for any purpose other than for the sending of email campaigns; (7) send or transfer any message through the Services that is greater than 300 Kilobytes or use the Services in any other manner that puts an excessive burden on the bandwidth of the Services; (8) delete, bulk unsubscribe, or otherwise alter or modify Subscriber Lists in order to evade billing thresholds; (9) use the Transactional Email Feature to send bulk commercial emails; (10) copy, modify, distribute, translate, or create derivative works of the Services or any part of Campaign Monitor’s Services; (11) except as specifically permitted by this Agreement, sell, resell, rent, or lease the Services or any part of Campaign Monitor’s Services; (12) reverse engineer, reverse assemble, decompile, or attempt to discover or extract the source code, object code, underlying structure, or algorithms, found at or through the Services or any software, documentation, or data related to the Services; (13) access the Services in order to build a competitive product or service, or copy any features, functions or graphics of the Services; (14) remove trademark, logo, copyright or other proprietary notices or labels from the Services or any Software; (15) use the Services to store or transmit material in violation of any third party rights, including Intellectual Property Rights and privacy rights; (16) use the Services to store or transmit Malicious Code; (17) interfere with or disrupt the integrity or performance of the Services or third party data contained therein; (18) hack, violate, attempt to violate, attempt to gain unauthorized access to the Services or their related systems or networks; (19) attempt to probe, scan, or test the vulnerability of the Services or perform any penetration testing against or on the Services; or (20) use the Services for timesharing or service bureau purposes.

SECTION 4: RESELLING THE SERVICES

  1. Provision of Reseller Services. Campaign Monitor may, in its absolute discretion and subject to the terms and conditions of this Agreement, allow Customer to resell the Services to Customer’s end clients (“End Clients”), which may be on a “white-label” basis if Customer uses the Creative Agency (or Reseller) version of the Services. Notwithstanding anything to the contrary herein, Campaign Monitor may, in its sole discretion, revoke Customer’s permission to resell the Services at any time.
  2. Conditions of Resale. Customer acknowledges and agrees that Customer’s resale of the Services to End Clients is subject to the following conditions:
    1. Customer agrees:
      1. when using the Creative Agency (or Reseller) version of the Services, to designate at least one User within Customer’s account who will have administrative privileges within the account and who Customer represents and warrants is authorized to act on behalf of Customer (the “Administrator”);
      2. to keep contact information for the Administrator updated and promptly respond to queries from Campaign Monitor sent to the Administrator’s email address;
      3. to set up a separate password-protected account which, unless otherwise agreed by the End Client, may be accessed only by that End Client;
      4. to promptly respond to queries from End Client and provide all customer relationship management to its End Clients, including first level support services in relation to the Services;
      5. to educate End Clients on terms related to the assessment of fees for use of the Services, particularly as they relate to Subscription Tiers and Usage-Based Features as these may be incurred without Administrator intervention;
      6. not to represent itself as an agent or employee of Campaign Monitor nor make any representations regarding Campaign Monitor, on Campaign Monitor’s behalf, or about any of the Services;
      7. to enter into binding contractual relationships with each End Client that requires the End Client to comply with the terms of this Agreement as if they were a party to it (“End Client Agreements”) and enforce implementation of such End Client Agreements;
      8. to require that each End Client provide a privacy policy to their subscribers that complies with Laws and is no less onerous than Customer’s obligations to its Subscribers and email recipients under this Agreement; and
      9. in the event that the End Client intends to transfer personal information via the Services, to ensure compliance with Laws with respect to that transfer.
    2. Customer further agrees that End Clients’ Access to, and use of, the Services does not in any way diminish:
      1. Customer’s strict obligation to ensure Users’ compliance with the terms of this Agreement;
      2. Campaign Monitor’s right to provide an acceptable use policy to the end users of its Services, including End Clients.
      3. Campaign Monitor’s right to enjoy the benefits of the disclaimers set forth in Section 3.C (Beta Features), Section 10 (Third Party Applications) and Section 11 (Disclaimers) of this Agreement; and
      4. Campaign Monitor’s right to enforce the terms of this Agreement, including, without limitation, Campaign Monitor’s right to suspend or terminate access to the Service at any time, irrespective of any impact on Customer or End Clients and without liability to Customer or End Clients.
    3. Payment of Fees to Customer. If Customer elects to have the End Client pay fees to Customer, Customer may determine, at its discretion, the fees to be charged to End Client for the Services and for any related services (such as account setup, creation of templates, etc.); provided, Customer agrees to pay to Campaign Monitor the standard fees Campaign Monitor charges for the applicable Services, irrespective of the fees Customer charges to its End Client. Customer agrees that End Client’s failure to pay fees to Customer shall have no bearing on Customer’s obligation to pay Campaign Monitor its standard fees for End Client’s use of the Services. Customer acknowledges and agrees that Customer bears all risk of nonpayment by End Clients and is solely responsible for all costs and expenses associated with collecting payment from its End Clients.
    4. Payment of Fees Directly to Campaign Monitor. If Customer elects to have the End Client pay fees directly to Campaign Monitor, Customer agrees that Campaign Monitor is entitled to deduct the standard fees Campaign Monitor charges for the applicable Services and remit the balance to Customer only after receipt of payment by End Client. In addition, Customer acknowledges and agrees that in the event of any disputes between Customer and End Client regarding fees, Campaign Monitor will be the final arbitrator of any such fee-related disputes. If an End Client fails to pay Campaign Monitor for fees incurred by such End Client, Customer shall be responsible for payment to Campaign Monitor of applicable fees within 30 days of email or other written notice to Customer.
    5. Refunds to End Client. If Campaign Monitor is required to refund any fees to End Client for any reason, Customer shall reimburse Campaign Monitor the full amount that Customer received for resale to that End Client.
    6. Audit Rights. Campaign Monitor may audit Customer’s compliance with this Section 4.B. Customer agrees to promptly provide Campaign Monitor with its End Client Agreements and other documentation reasonably requested to Campaign Monitor.
  3. Disputes Within Customer’s Account. If an End Client contacts Campaign Monitor for access to a sub-account within Customer’s account (a “Sub-Account”) or the retrieval of User Content in such Sub-Account, Campaign Monitor will first make an attempt to notify an Administrator via email and request Customer’s express permission to grant the End Client access to the relevant Sub-Account. If such Administrator does not respond within 5 days, Campaign Monitor may, but is not obligated to, use reasonable discretion to determine who owns the Sub-Account or the User Content in such Sub-Account based on the User Content and Users in that Sub-Account. If Campaign Monitor is able to discern with reasonable certainty that such End Client is the owner of the User Content in the Sub-Account in issue, Campaign Monitor may, at the request of the End Client, transfer the User Content or the entire Sub-Account into a separate standalone Campaign Monitor account and provide End Client with full administrative control of such account. If Campaign Monitor is unable to make such a determination, then End Client will need to produce a court order from a court exercising competent jurisdiction to gain access to the sub-account in question.
  4. Indemnification for End Clients. Notwithstanding any of the foregoing, Customer remains fully liable and responsible for any breaches of this Agreement by End Clients and its Users. Customer hereby agrees to defend, indemnify, and hold Campaign Monitor, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from and against all costs, expenses, losses and liabilities arising in any way (including to the maximum extent permitted under statute, the law of tort (including negligence), equity or any other theory of law whatsoever) from or in relation to use of the Services by End Clients and/or its Users and all other acts and omissions thereof in connection to the Services.

SECTION 5: OWNERSHIP AND INTELLECTUAL PROPERTY

  1. Customer’s Property. By using the Services or submitting any User Content through the Services, Customer hereby grants Campaign Monitor and its Subprocessors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of the User Content in connection with the Services. For clarity, the foregoing license granted to Campaign Monitor and its Subprocessors, does not affect Customer’s (or its End Clients’) ownership or license rights in its User Content unless otherwise agreed in writing. Customer represents and warrants that Customer has all rights to grant such licenses to Campaign Monitor and its Subprocessors without infringement or violation of moral rights or any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other Intellectual Property Rights. In addition, while using the Services, Customer may provide information (such as Customer’s name, contact information, and/or other registration information) to Campaign Monitor. Customer agrees to, and agrees and warrants that it has the necessary consents to, permit Campaign Monitor to use this information and any technical information about Customer’s use of the Services to tailor the user experience of the Services to Customer, to facilitate Customer’s use of the Services, and to communicate with Customer.
  2. Campaign Monitor Property. Customer acknowledges and agrees that the Services are the property of Campaign Monitor or its affiliates, licensors or suppliers. Unless stated otherwise, all Services are protected as the copyright, trade dress, trademarks and/or other Intellectual Properties owned by (or licensed to) Campaign Monitor. Customer is not authorized to use any of the Services in any advertising, publicity or any other commercial manner without the prior written consent of Campaign Monitor. Customer’s use of the Services confers no title or ownership in the Services and is not a sale of any rights in the Services. All ownership rights to the Services remain in Campaign Monitor or its third party suppliers, as applicable.
  3. Statistical Data. Notwithstanding anything to the contrary in this Agreement or elsewhere, Campaign Monitor may monitor, analyze, and compile statistical and performance information based on and/or related to Customer’s use of the Services, in an aggregated and anonymized format (“Statistical Data”). Customer agrees that Campaign Monitor may make such Statistical Data publicly available, provided that it: 1) does not contain identifying information; and 2) is not compiled using a sample size small enough to make the underlying data identifiable. Campaign Monitor and/or its licensors own all right, title and interest in and to the Statistical Data and all related software, technology, documentation, and content provided in connection with the Statistical Data, including all Intellectual Property Rights in the foregoing.
  4. Feedback. Customer may provide feedback, suggestions, and comments to Campaign Monitor regarding the Services (“Feedback”). Campaign Monitor shall have all ownership right, title, and interest in such Feedback. Notwithstanding the foregoing, to the extent that any Feedback is deemed to be owned by Customer, Customer hereby grants to Campaign Monitor a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, prepare derivative works, and otherwise fully exploit such Feedback in any medium or format, whether now known or later developed, provided that such Feedback is anonymous.
  5. Publicity. Unless otherwise agreed by the parties, Customer hereby agrees that Campaign Monitor may reference Customer in marketing and public relations materials, including a press release announcing Customer as a customer. Customer hereby grants Campaign Monitor a perpetual, nonexclusive, worldwide license to use and display Customer’s trademarks, trade names and logos in connection with the foregoing.

SECTION 6: CONFIDENTIALITY

The Parties acknowledge that in the course of performing their obligations under this Agreement, each party (a “Recipient”) may receive information that is either clearly marked as “confidential” or nonpublic information which, under the circumstances surrounding the disclosure, a reasonable person would conclude should be treated as confidential (“Confidential Information”) from the other party (a “Discloser”). Recipient covenants and agrees that neither it nor its agents, employees, officers, directors or representatives will disclose or cause to be disclosed any Confidential Information of the Discloser, except (a) to those employees, representatives, or contractors of the Recipient who require access to the Confidential Information to exercise its rights under this Agreement and who are bound by confidentiality obligations, or (b) as such disclosure may be required by Law, subject to and to the extent permitted by Law, the Recipient providing to the Discloser written notice to allow the Discloser to seek a protective order or otherwise prevent the disclosure. Nothing in this Agreement will prohibit or limit the Recipient’s use of information: (i) previously known to it without breach or obligation of confidence, (ii) independently developed by or for it without use of or access to the Discloser’s Confidential Information, (iii) acquired by it from a third party that was not under an obligation of confidence with respect to such information at the time of disclosure, or (iv) that is or becomes publicly available through no breach of this Agreement.

SECTION 7: PRIVACY AND SECURITY

  1. Privacy Policy. Notwithstanding anything to the contrary in this Agreement, the Privacy Policy explains how Campaign Monitor handles User Content and other data processed by the Services. Customer hereby acknowledges and agrees that Campaign Monitor will handle data in accordance with the Privacy Policy. For more information on how personal data is handled in connection with the Services as well as information on rights to access, correct and lodge a complaint regarding the handling of personal data please refer to the Privacy Policy.
  2. HIPAA and PHI. Customer understands and acknowledges that the Services are not configured to receive and store personal health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”) and that Campaign Monitor is neither a “Covered Entity” nor a “Business Associate,” as those terms are defined in HIPAA. As such, Customer agrees not to, and not to permit Users to, transmit, request, provide access to, submit, store, or include any PHI through the Services. Customer agrees that Campaign Monitor may terminate this Agreement immediately if Customer is found to be in violation of this Section 7.B.
  3. EU Personal Data Transfer. In the event that Customer intends to transfer the Personal Data of an EU Data Subject, Customer shall notify Campaign Monitor and the parties shall execute Campaign Monitor’s Data Protection Addendum incorporating the EU Standard Contractual Clauses provided by Campaign Monitor. Once executed, such Data Protection Addendum will be deemed wholly incorporated into this Agreement.
  4. User Passwords. Customer is solely responsible for keeping Customer’s and/or Users account name, password, and any other login credentials confidential. Customer is responsible for any and all activities that occur within Customer’s account, whether authorized by Customer or not. Customer must notify Campaign Monitor immediately of any unauthorized access or use of Customer’s or End Clients’ account. Campaign Monitor will not be held responsible or liable for any losses due to lost or hacked passwords.

SECTION 8: FEES

  1. Payment of Fees. Campaign Monitor shall charge Customer, and Customer agrees to pay, all fees for Services in accordance with its Ordering Document, Subscription Plan, and Subscription Tier. Customer is responsible for reviewing the pricing schedule, features, and limits associated with its Subscription Plan and its Subscription Tier (available at campaignmonitor.com/pricing and also on the ‘Billing Page’ inside the application). Campaign Monitor may, but is not obligated to, contact Customer to warn Customer that they have exceeded the included features or other limits of its current Subscription Plan or Subscription Tier.
  2. Subscription Tier. Fees associated with each Subscription Plan are based on Customer’s Subscription Tier. Customer’s Subscription Tier at any given time is determined by the higher of: 1) the number of emails being sent (unless Customer’s plan includes unlimited emails), and 2) the number of Subscribers in the Customer’s Subscriber Lists (as determined by adding the number of Subscribers in each Subscriber List). Except as otherwise stated in Customer’s Ordering Document, if Customer exceeds the limits of its Subscription Tier, Campaign Monitor will upgrade the Customer’s account to the appropriate Subscription Tier and charge Customer the applicable fees for that Subscription Tier for the remainder of the Order Term and any renewals thereof. Customer has the sole responsibility for updating its Subscriber Lists to ensure Customer is being charged at the appropriate Subscription Tier.
  3. Subscription Plan Upgrade. If Customer, a Full Access User, or an Administrator accesses, uses, or activates any features which are only included in a higher-priced Subscription Plan or provides Users with access to the same, Campaign Monitor may, in its absolute discretion, upgrade Customer’s account to the appropriate higher-priced Subscription Plan for the remainder of the Order Term and any renewals thereof. Customer agrees to pay fees associated with the upgraded Subscription Plan for the remainder of the Order Term, and any renewals of the Order Term.
  4. Payment for Add-On Features. Customer may order Add-On Features at any time by using the Add-On Feature and/or executing an Ordering Document for the Add-On Feature. Customer agrees to pay fees associated with the applicable Add-On Feature for the remainder of the Order Term, and any renewals of the Order Term.
  5. Usage-based Features. Customer acknowledges and agrees that fees for certain features of the Services may be assessed based on Users’ actual usage of those features (for example, fees are incurred every time a User runs a ‘Design and spam test’). Customer agrees to pay for Users’ usage of any such features.
  6. Trial Account. If Customer sends emails through the Services while using a trial version of the Services, Customer agrees that Campaign Monitor shall charge Customer, and Customer agrees to pay applicable fees whenever Customer sends a campaign to more than 5 recipients.
  7. Payment Method. Unless otherwise listed on Customer’s Ordering Document, Customer agrees to pay Campaign Monitor all applicable fees in U.S. Dollars (or such other currency as listed in Customer’s account page), up front via credit card, for Services Customer purchases or uses in accordance with the terms listed on Customer’s Ordering Document. Customer agrees to provide accurate payment information, and hereby authorizes Campaign Monitor to charge such credit card for all fees set forth in the Ordering Document for the duration specified therein (and any renewal thereof). Payments are due for any billing period on the same date, or the closest date in that billing period, to the day Customer signed up for the Services and made its first payment. If any part of a billing period is included in the term, then payment is due for the full billing period.
  8. Taxes. All fees stated in the Ordering Document are exclusive of any applicable taxes. Customer shall pay any sales, use, value added, excise, property withholding or similar tax, duties, and any related tariffs, and similar charges applicable to Customer’s purchase of the Services assessable by any local, provincial, federal, or foreign jurisdiction and shall include any related penalties or interest, except taxes based on Campaign Monitor’s net income (“Customer’s Taxes”). Customer’s Taxes may be added to the final price charged to Customer on Customer’s invoice. Customer shall pay Customer’s Taxes with no reduction or offset in the amounts payable to Campaign Monitor hereunder. Customer will, and hereby agrees to, promptly reimburse Campaign Monitor for any and all of Customer’s Taxes (and any applicable penalties) that Campaign Monitor may be required to pay in connection with this Agreement upon receipt of Campaign Monitor's invoice.
  9. Late Payment. If any amount due is not received by the due date, then without limiting Campaign Monitor's rights or remedies, Campaign Monitor may (a) apply a late fee of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is lower, from the date such payment was due until the date paid; (b) accelerate the payment of any fees payable; (c) immediately suspend Customer’s access to the Services until payment is made; (d) terminate Customer’s access to the Services provided that Campaign Monitor gives Customer notice of non-payment and 10 business days opportunity to cure; and/or (e) condition future subscription renewals and orders on pre-payment or payment terms shorter than those specified in the Ordering Document.
  10. Fees at Renewal. Campaign Monitor reserves the right to change fees for any Services at the time of renewal and Customer is responsible for reviewing the fees charged by Campaign Monitor prior to renewal, provided no fee change will be effective until renewal of that Service (unless the fees in the prior period were designated in the applicable Ordering Document as promotional or ‘one-time’). Upon expiration of the applicable Order Term, Customer will automatically be charged in accordance with the payment method specified on Customer’s Ordering Document for renewal unless Customer downgrades or terminates its account in accordance with this Agreement.
  11. Reactivation Fee. Campaign Monitor may charge a re-activation fee to re-activate an account that has been suspended.
  12. No Refunds. Except as otherwise provided in this Agreement or required by Law, Campaign Monitor will not provide refunds or credits for partial or unused periods of service or mid-term downgrades.

SECTION 9: REPRESENTATIONS AND WARRANTIES

  1. General Representations and Warranties. Customer represents and warrants that Customer:
    1. has the legal power and authority to enter into this Agreement, and doing so will not violate any other agreement to which it is a party;
    2. will not transmit any Malicious Code in connection with the Services;
    3. will not violate the Anti-Spam Policy; and
    4. will use the Services only in compliance with this Agreement and Laws (including but not limited to policies and Laws related to spamming, privacy, obscenity, and defamation and Laws such as the HIPAA, GLB, EU Data Privacy Laws, the Australian Privacy Act and the Australian SPAM Act and other similar or Laws).
  2. Personal Information. Customer further represents and warrants that:
    1. all personal information (including any Personal Data as defined in the EU Directive) provided by Customer to Campaign Monitor (including, without limitation, that of Users and Subscribers) has been collected with the relevant individual’s consent;
    2. Customer has informed all persons whose information is collected: 1) of the purpose for which that information was collected, 2) that Customer may provide this information to its vendors and/or service providers for the purposes of use in relation to the Services, and 3) that such information may be processed and/or stored by Customer’s vendors and/or service providers on servers located in the United States of America; and
    3. Customer has obtained the consent of such persons for processing of their personal information by its vendors and service providers in the foregoing manner.

SECTION 10: THIRD PARTY APPLICATIONS

  1. Customer agrees and acknowledges that certain features of the Services depend on the continuing availability of Third Party Applications. If the providers of these Third Party Applications cease to make their services or programs available on reasonable terms, Campaign Monitor may cease providing any affected features or services without entitling Customer to any refund, credit, or other compensation.
  2. If Customer enables, installs, or connects any Third Party Applications for use with the Services:
    1. Customer hereby:
      1. permits the transmission of and/or access to User Content to such Third Party Applications;
      2. grants to Campaign Monitor and its Subprocessors a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable right and license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, perform, and prepare derivative works of any data transmitted to or obtained by Campaign Monitor from any Third Party Application enabled, installed, or connected to Campaign Monitor by Customer; and
      3. represents and warrants that it has provided all notices and obtained all consents required by Law to grant the foregoing permissions, rights, and licenses and that doing do so will not violate any third party's privacy, Intellectual Property Rights, or other rights.
    2. Customer acknowledges and agrees that:
      1. any consent given by Campaign Monitor permitting Customer to enable, install, or connect any Third Party Application does not constitute Campaign Monitor’s endorsement of such Third Party Application; and
      2. Campaign Monitor will not be held responsible for any Third Party Applications Customer uses in connection with the Services, including but not limited to, for any disclosure, modification or deletion of User Content resulting from any such transmission to or access by Third Party Applications.
    3. Customer agrees to comply with any requests by Campaign Monitor to remove any connections to or from other websites and/or applications to the Services which Customer installs.

SECTION 11: DISCLAIMERS

  1. Campaign Monitor agrees to make every reasonable attempt to make sure that all email messages sent through Campaign Monitor’s Servers follow email standards, but Campaign Monitor does not guarantee that messages will look consistent across all email platforms due to the number of different HTML composition tools available. For example, if Customer uses Microsoft Word to generate HTML email messages, it is expected that recipients of Customer’s message using a non-Microsoft email application may have difficulty reading Customer’s message.
  2. From time to time, down-time, either scheduled or unscheduled, may occur in respect of the Services. Campaign Monitor will work within reason to ensure the amount of down-time is limited. Customer releases Campaign Monitor entirely of all responsibility for the consequences of any down-time.
  3. Campaign Monitor does not guarantee that any file or program available for download and/or execution from or via the Services is free from viruses or other conditions which could damage or interfere with data, hardware or software with which it might be used. Customer agrees that use of all programs and files associated with the Services is at its own risk and Customer releases Campaign Monitor entirely of all responsibility for any consequences of its use.
  4. From time to time, Customer may obtain advice or information from Campaign Monitor help or support pages, white papers, and/or Campaign Monitor’s employees (collectively, “Advice”). Customer acknowledges and agree that such Advice will not be deemed to constitute financial, legal or tax advice. Customer should seek the advice of its own advisers prior to acting upon any such Advice. Customer acknowledges and agrees that any Advice is provided strictly “as is” and that Campaign Monitor makes no warranty or representation of any kind regarding the accuracy or quality of such Advice. Customer agrees that use of and reliance on any such Advice is at its own risk and Customer releases Campaign Monitor entirely of all responsibility for any consequences of its use of and reliance on any such Advice.
  5. USE OF THE SERVICES AND ANY RELIANCE BY CUSTOMER UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CAMPAIGN MONITOR DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE UNINTERRUPTED, ACCURATE OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY OR GUARANTEE AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND TO THE EXTENT PERMITTED BY LAW CAMPAIGN MONITOR DISCLAIMS ALL WARRANTIES, GUARANTEES, EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
  6. PLEASE NOTE THAT DOWNGRADING CUSTOMER’S ACCOUNT MAY RESULT IN THE LOSS OF CONTENT, FEATURES, OR CAPACITY OF CUSTOMER’S ACCOUNT. CAMPAIGN MONITOR DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES.
  7. Subject to Section 13 (in particular, Section 13.C if Customer resides in Australia) and unless otherwise expressly set forth elsewhere in this Agreement, Customer’s sole and exclusive remedy for any failure or nonperformance of the Services shall be limited to, Campaign Monitor (at its election): 1) using commercially reasonable efforts to adjust or repair the Services; 2) resupplying that Service; or 3) providing Customer with a refund for the amount actually received by Campaign Monitor (exclusive of all taxes), for the relevant Services.

SECTION 12: INDEMNIFICATION

  1. Customer Indemnity. Customer agrees to defend, indemnify and hold Campaign Monitor, its officers, directors, shareholders, successors in interest, employees, agents, subsidiaries and affiliates harmless from any third party claims, losses, damages, liabilities, settlements, and expenses, (including, but not limited to attorney fees) (collectively, "Claims") related to, arising from, or connected with: 1) Customer or End Client’s use of the Services; 2) Customer’s breach of this Agreement or any representation or warranty made by Customer herein; 3) a Subscriber List or User Content (including, without limitation, Claims alleging that the User Content violates or misappropriates the Intellectual Property Rights or other rights of any third party); 4) Customer or End Client’s negligence or intentional misconduct; 5) any actual or alleged violation of Anti-Spam Policy by Customer or End Client; and/or 6) any violation of Law by Customer or End Client. Notwithstanding the foregoing, Customer shall not make any admissions on behalf of Campaign Monitor or settle any claim without Campaign Monitor’s consent, which will not be unreasonably withheld or delayed.
  2. Campaign Monitor's Right to Defend. Promptly upon learning of any Claim arising from or related to allegations that the Services violate or infringe a third party’s Intellectual Property Rights (“IP Claim”), Customer shall give notice to Campaign Monitor of any such IP Claim and immediately deliver to Campaign Monitor all original notices and documents (including court papers) received in connection with and/or related to the IP Claim. Campaign Monitor shall have the exclusive right, but no obligation, to assume defense of such IP Claim at any time and at any stage. If Campaign Monitor assumes defense of any such IP Claim, Customer agrees to, and will procure that its End Clients agree to, cooperate in the defense thereof as reasonably requested by Campaign Monitor. Upon assuming the defense of an IP Claim, Campaign Monitor may appoint any legal counsel selected by Campaign Monitor and settle any IP Claims on such terms and conditions it deems advisable. Customer agrees that if Campaign Monitor assumes the defense of the IP Claim, Campaign Monitor will not be liable to Customer for any legal costs or expenses subsequently incurred by Customer in connection with the analysis, defense or settlement of such IP Claim. Customer acknowledges and agrees that the assumption of the defense of an IP Claim by Campaign Monitor is not an acknowledgment, will not be construed as an acknowledgment, that Campaign Monitor is liable to indemnify Customer in respect of the IP Claim, nor will it constitute a waiver by Campaign Monitor of any defenses it may assert against the Customer if Customer claims it is owed indemnification for such IP Claim.

SECTION 13: LIMITATION OF LIABILITY

  1. TO THE EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL CAMPAIGN MONITOR BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF USER CONTENT, OR LOSS OF ANY DATA RELATED THERETO, OR ANY INTERRUPTION OF BUSINESS, OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF CAMPAIGN MONITOR HAS BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT THE CONSIDERATION WHICH CAMPAIGN MONITOR CHARGES HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY CAMPAIGN MONITOR OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES.
  2. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, CAMPAIGN MONITOR OR ITS AFFILIATES IS FOUND LIABLE TO CUSTOMER FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IN NO EVENT WILL CAMPAIGN MONITOR’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE LESSER OF: SUPPLYING OF THE SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN, OR REFUND OF FEES ACTUALLY PAID FOR THE SERVICES IN THE TWELVE MONTHS PRECEDING THE APPLICABLE CLAIM GIVING RISE TO LIABILITY. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW. CUSTOMER AGREES THAT CAMPAIGN MONITOR’S LIABILITY TO CUSTOMER AT LAW WILL BE REDUCED BY THE EXTENT, IF ANY, TO WHICH CUSTOMER CONTRIBUTED TO THE LOSS. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO CUSTOMER, AND THAT, WERE CAMPAIGN MONITOR TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
  3. If Customer Resides in Australia: Section 13.B does not apply so as to limit Campaign Monitor’s obligation to comply with applicable consumer guarantees under the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). The liability of Campaign Monitor for any liability, loss, cost or damage, however caused (including by the negligence of Campaign Monitor), suffered or incurred by Customer because of Campaign Monitor’s modification of the Services or failure to comply with a consumer guarantee when providing the Services is limited to, Campaign Monitor (at its election): (a) resupplying that Service; or (b) paying the cost of having the Services supplied again. This Section 13.C does not apply if it is not fair or reasonable for Campaign Monitor to rely on it for the purposes of section 64A of the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Nothing in this Agreement purports to modify or exclude the conditions, warranties and undertakings, and other legal rights that Customer may have available under the Australian Consumer Law.

SECTION 14: TERM AND TERMINATION

  1. Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue to apply to any use of the Services by a User. Except as otherwise specified in the applicable Ordering Document, the Ordering Document and all non-expiring items added during the course of the Order Term, shall automatically renew for additional periods equal in duration to the original Order Term or one year, whichever is shorter (unless such automatic renewal is prohibit by applicable Law), unless either party gives the other notice of non-renewal at least 30 days before the end of the Order Term (or, if applicable, any renewal of the Order Term).
  2. Termination. Either party may terminate this Agreement or any individual Ordering Document as follows: (a) for cause if the other party materially breaches this Agreement or an Ordering Document and does not remedy such breach within 30 days after its receipt of written notice of such breach; or (b) immediately if the other party: (i) terminates its business activities or becomes insolvent, (ii) admits in writing to the inability to pay its debts as they mature, (iii) makes an assignment for the benefit of creditors, or (iv) becomes subject to direct control of a trustee, receiver or similar authority. Customer agrees that Campaign Monitor will not be liable to Customer or to any third party for termination of Customer’s or End Client’s access to the Services resulting from any violation of this Agreement by Customer and/or End Client. Campaign Monitor may terminate this Agreement or any individual Ordering Document at any time in its sole discretion.
  3. Right to Suspend. Campaign Monitor may suspend Customer’s account:
    1. for non-payment or untimely authorization of payment;
    2. at any time without notice for conduct that it believes, in its sole discretion, violates: 1) this Agreement or other agreements or guidelines which may be associated with Customer’s use of the Services; or 2) any Laws applicable to Customer’s use of the Services; or
    3. If Customer does not log into its account for more than 700 days (“Inactive Account”). INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM CAMPAIGN MONITOR’S DATABASE.
  4. Effect of Termination. Upon expiration or termination of this Agreement: (a) Customer’s and End Clients’ right to use the Services shall cease, and Campaign Monitor will have no further obligation to make the Services available to Customer or End Clients; (b) except as otherwise expressly stated herein, all rights and licenses granted to Customer and End Clients under this Agreement shall cease; (c) Customer will pay any unpaid fees incurred by Customer and/or End Clients for the remainder of the term under any applicable Ordering Document in effect prior to the termination date; and (d) Campaign Monitor may delete any of Customer’s and/or End Clients’ archived data within 30 days after the date of expiration or any termination of this Agreement. Any statutory retention requirements with respect to Customer’s and/or End Clients’ data or information remain Customer’s responsibility.
  5. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, Sections: 4 (Reselling the Services), 5 (Ownership and Intellectual Property), 6 (Confidentiality), 8 (Fees), 9 (Representations and Warranties), 10 (Third Party Applications), 11 (Disclaimers), 12 (Indemnification), 13 (Limitation of Liability), 14.D (Effect of Termination), 14.E (Survival), 15 (U.S. Federal Government End User Provisions, to the extent applicable), and 16 (General Provisions).

SECTION 15: U.S. FEDERAL GOVERNMENT END USER PROVISIONS (IF APPLICABLE)

If the end user of the Services is the U.S. federal government (including any federal agency), then the following shall apply: (a) Government technical data and software rights related to the Services include only those rights described herein; and (b) if a government agency has a need for rights not conveyed under this Agreement, it must negotiate with Campaign Monitor to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. The Services and Site, including all documentation, are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, and consist of "Commercial Computer Software" and "Commercial Computer Software Documentation."

The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users:

  1. only as Commercial Items,
  2. with the same rights as all other end users, and
  3. according to this Agreement.

SECTION 16: GENERAL PROVISIONS

  1. Notices. Notices to Customer will be effective when Campaign Monitor posts them to Customer’s account or sends them to the email address associated with a Full Access User (or Administrator, if applicable). Notices to Campaign Monitor will be effective when delivered to Campaign Monitor: Attn. Legal Notices, Campaign Monitor, 631 Howard St, 5th Floor, San Francisco, CA, 94105, or any addresses as Campaign Monitor may later post on the Site from time to time.
  2. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. No rights for third party beneficiaries are created by this Agreement.
  3. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of Law or otherwise, without the prior written consent of Campaign Monitor. This Agreement may be assigned or transferred by Campaign Monitor without the consent of the Customer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
  4. Force Majeure. Campaign Monitor will not be liable for any delays or failure in performance of any part of the Services, from any cause beyond Campaign Monitor’s control. This includes, but is not limited to, acts of God, changes to Laws, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, floods, strikes, power blackouts, and acts of hackers or third party internet service providers.
  5. Governing Law. The Laws of the State of New South Wales, Australia, excluding its conflict of Laws rules, will apply to any and all disputes arising out of or relating to the Services or this Agreement (“Disputes”). All legal actions in connection with a Dispute under this Agreement will be subject to the non-exclusive jurisdiction of the courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them. The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded from this Agreement.
  6. Disputes. Customer and Campaign Monitor each agree to exclusively arbitrate any and all Disputes. Any dispute, controversy, or claim arising out of, relating to, or in connection with this contract, including any questions regarding its existence, validity, or termination, shall be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia. The language of arbitration shall be English.
  7. Overseas Access. The Services may be accessed throughout Australia and overseas. Campaign Monitor makes no representations that the Services comply with the Laws (including intellectual property Laws) of any country outside Australia. If Customer accesses the Services from outside Australia, it does so at its own risk and is responsible for complying with the Laws in the place where it accesses the Services.
  8. Export Regulations. The Services made available by Campaign Monitor may be subject to the export control Laws of the United States and other jurisdictions. Customer shall comply with all applicable export Laws, and, without limiting the generality of the foregoing: (a) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (b) Customer shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
  9. Severability. If any provision of this Agreement is held invalid, illegal or otherwise unenforceable, it shall be deemed modified to render it enforceable while preserving the Parties’ original intent to the fullest extent, and the rights and obligations of the parties shall be construed and enforced accordingly. If the provision cannot be modified in accordance with the foregoing, then that provision will be deemed severed from this Agreement and all other provisions will be unaffected and will remain in full force and effect.
  10. Waiver. Any waiver by Campaign Monitor must be in writing and signed by an authorized Campaign Monitor representative. No waiver by Campaign Monitor of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No failure or delay by Campaign Monitor in enforcing any right or provision under this Agreement shall be construed as a waiver of such right or provision or of any other right or provision.
  11. Interpretation and Execution. The headings in the Agreement do not affect its interpretation. References to sections are to sections of this Agreement. This Agreement and any Ordering Document may be executed in one or more counterparts, each of which when so executed and delivered or transmitted by facsimile, e-mail or other electronic means, shall be deemed to be an original and all of which taken together shall constitute but one and the same instrument. A facsimile or electronic signature is deemed an original signature for all purposes under this Agreement and any Ordering Document.

Last Modified Date: January 8, 2018

Additional Terms

ADVANCED SEGMENTATION TERMS

SECTION 1: DEFINITIONS

In addition to terms defined in the Agreement, the following definitions will apply to capitalized words in these Advanced Segmentation Terms:

  1. "Advanced Segmentation" means the feature offering that allows Customers to create Segments within their Subscriber Lists with relative date rules.
  2. Attribute Data” means a Subscribers stated interests, preferences, demographics, and other information about a Subscriber to be included in a Custom Field.
  3. "Behavioral Data" means data about Customer’s customers or prospects interaction with emails sent via Campaign Monitor (for example user name, postal address, e-mail address, IP address and phone number, date and time of activity).
  4. Confirmation” means written documentation in a form and including substance reasonably satisfactory to Campaign Monitor that evidences Customer’s acceptance of the Segment Rule setup.
  5. Custom Fields” means the extra fields added by a User to a Subscriber List that allows the User to store Attribute Data about their Subscribers.
  6. "Implementation Support” means the initial set-up of Customer’s Advanced Segmentation integrations and Segment Rules, as further clarified in Section 2 below.
  7. "Ongoing TAM Support” means the creation and ongoing management of Segment Rules. For clarity, Ongoing TAM Support will only include activities related to Advanced Segmentation features.
  8. “Process(ing)”  means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
  9. “Segment” means a sub-list of Subscriber’s within a Subscriber List that meet the Subscriber Data criteria as selected by the User.
  10. “Segment Rule” means the rule structure for segmentation of data created in accordance with Customer’s instructions.
  11. “Subscriber Data”  means all Attribute Data and Behavioral Data.
  12. "Technical Account Manager” or “TAM” means the dedicated Campaign Monitor account manager that will help Customer setup and manage Advanced Segmentation features and Segment Rules.

SECTION 2: IMPLEMENTATION AND ONGOING SUPPORT

  1. Customer acknowledges and agrees that the Advanced Segmentation feature and Segment Rules may only be set up with the support of a TAM.
  2. Account Setup. Customer shall instruct the TAM which Subscriber Lists within Customer's Campaign Monitor account Customer wishes to segment using the Advanced Segmentation feature.
  3. Segment Creation. The TAM will create and implement Segment Rules for the creation of Segments, as instructed by the Customer, in accordance with the following procedure:
    1. Customer will send the TAM a Segment creation request via email, weekly status, or standard form provided by Campaign Monitor.
    2. Within two (2) business days of receipt of such request from Customer, the TAM will discuss Customer’s requirements with Customer and set up Segment Rules based on this request.
    3. Once Segment Rules are created, the TAM will provide Customer with a snapshot of the Segment Rule setup.
    4. Once Customer provides Confirmation of the Segment Rule, the TAM will implement the Segment Rule.

SECTION 3: SUBSCRIBER DATA

  1. Duplicate Custom Fields. Customer understands and acknowledges that if the Subscriber Lists used for Advanced Segmentation features have duplicate Custom Field titles across such Subscriber Lists, then any new Attribute Data associated with the Custom Field may augment or replace the underlying data about a Subscriber included in such Subscriber Lists causing that Subscriber to be included in (or excluded from) a Segment that they would not otherwise have been included in (or excluded from). Customer agrees not to include duplicate Custom Fields across Subscriber Lists used for Advanced Segmentation unless Customer has obtained the right to augment and/or replace Attribute Data in the foregoing manner.
  2. Subscriber Data Processing.
    1. Customer acknowledges and agrees that in order to provide the Advanced Segmentation features, Campaign Monitor will Process Subscriber Data on behalf of Customer in the manner instructed by Customer and at Customer’s direction.
    2. Customer acknowledges and agrees that Campaign Monitor cannot control the manner in which Customer obtains Attribute Data and collection and sharing of Attribute Data with Campaign Monitor is at Customer’s sole control and discretion.
    3. Customer represents and warrants that Customer has, in compliance with applicable Laws, informed all persons whose Subscriber Data is Processed (whether in anonymous or identifiable form): i) of the purpose for which that information was collected; ii) that Customer may provide Subscriber Data to its vendors and/or service providers for the purposes of use in relation to the Services; iii) that Subscriber Data may be combined with other information the Customer has on file about them; and iv) that Subscriber Data may be processed and/or stored by Customer’s vendors and/or service providers on servers located in the United States of America.
    4. Customer further represents and warrants that Customer has, in compliance with applicable Laws, obtained the consent of all persons whose Subscriber Data is collected (whether in anonymous or identifiable form) for the Processing of their Subscriber Data by Customer's vendors and service providers for the purposes for which Customer is processing such Subscriber Data.
    5. Customer further represents and warrants that Campaign Monitor’s Processing of such Subscriber Data on behalf of Customer, as instructed by Customer, does not violate any Laws or rights of any third party, including without limitation any Intellectual Property Rights, rights of privacy, or rights of publicity.
  3. Upon request by Campaign Monitor, Customer shall have an authorized director or officer provide written certification that proper notices and consents have been obtained as required by applicable Laws.

SECTION 5: AGENCY

Customer represents and warrants that if Customer is using the Agency or Reseller version of the Services, Customer will not co-mingle, will not instruct a TAM to co-mingle, and will not cause to be co-mingled, any of its End Client’s User Content, including any Subscriber Data obtained while using the Advanced Segmentation features.

SECTION 6: MULTI-TEAM ACCOUNTS

Unless otherwise expressly communicated in writing to the TAM, if Customer has multiple teams set up within its account and Customer is not acting as an Agency or Reseller, Customer represents and warrants that:

  1. they have provided the legally required notices and obtained any legally required consents to share, modify, update, and append Subscriber Data among multiple team accounts; and
  2. doing so will not violate any Law or third party’s privacy, intellectual property, other other rights.

SECTION 7: DISCLAIMERS

CAMPAIGN MONITOR DOES NOT GUARANTEE THAT ACCOUNT SETUP OR SEGMENT RULE SETUP IS ERROR-FREE. THE TAM SERVICES AND ANY RELIANCE BY CUSTOMER UPON THE TAM SERVICES, INCLUDING ANY ACTION TAKEN BY CUSTOMER BECAUSE OF SUCH USE OR RELIANCE, IS AT CUSTOMER’S SOLE RISK.

SECTION 8: TRANSITION

Customer acknowledges and agrees that a new version of Campaign Monitor with incorporated Advanced Segmentation features may become available during Customer’s Order Term or a renewal thereof and that this new version will replace the Advanced Segmentation features made available through a TAM. Upon release of such new version, Customer hereby agrees to be transitioned to such new version for the remainder of Customer’s then-current Order Term. Customer shall have access to all features included in the current Advanced Segmentation offering except for access to a TAM. Notwithstanding the foregoing, Customers on a Premier version of Campaign Monitor will continue to have access to a Customer Success Manager who will help with reasonable transition related activities. Upon renewal, Customer will be charged fees associated with the new version of Campaign Monitor with Advanced Segmentation features unless the Parties expressly agree in writing prior to Customer’s renewal.

Last Modified: July 17, 2018

Privacy Notice

LAST UPDATED: July 10, 2018

OVERVIEW

Campaign Monitor Pty Ltd.and its affiliates ("Campaign Monitor", "we" or "us") respect your privacy. This privacy notice ("Notice") explains who we are, how we collect, use and share information that identifies you (directly or indirectly) (“Personal Information”), and how you can exercise your privacy rights.

This Notice covers the Personal Information we collect: (1) about Users of Campaign Monitor’s Services (see Section 2); (ii) about our User's Subscribers (generally recipients of emails sent through the Campaign Monitor Services) (see Section 3); and (ii) through our Websites and in connection with our events, recruitment, sales and marketing activities (see Section 4).

If you are resident in the EEA, please review the section headed "Your Data Protection Rights" for further information about the privacy rights available to you.

We recommend that you read this entire Notice to ensure you are fully informed.

However, to make it easier for you to review those parts of this Notice which apply to you, we have divided up the document into the following sections:

1. THE BASICS

a. About Us.

Campaign Monitor is a company headquartered in New South Wales, Australia. We provide email marketing software products and services that allow our Customers and their Users to build and send out marketing emails to their Subscribers. Through our application, our Customers can also store information about and track the engagement of their Subscribers.  You can find out more about us and our products here.

b. Key Terms.

In this Notice, the terms below have the meanings defined below:

i. "Affiliates" and "Affiliates of our corporate group", as used in this Privacy Notice, means a company that is directly or indirectly controlled by, or is under common control of Campaign Monitor. In particular, this includes companies under the Campaign Monitor brand, including Delivra, Inc. and Emma, Inc.

ii. "Customer" means the entity we have contracted with to provide the Services, which if you are an User, generally refers to the entity of which you are an employee, contractor, member or other participant.

iii. "Subscribers" means any individual: 1) whose information is stored or collected by our Users on or via the Services; and/or 2) to whom Users send emails to or otherwise engage or communicate with via the Services.

iv. "Services" means the Campaign Monitor email marketing software, products, applications, tools, and/or related services.

v. "User" means any individual who has registered to use and access the Services under the Customer account and who directly builds, sends, collaborates on and/or reviews emails or forms through the Services.

vi. "Website" means any website we own and operate (such as www.campaignmonitor.com and any sub-domains).

2. CAMPAIGN MONITOR USERS

This section applies to Personal Information we collect and process when you engage with us as a User of the Service. If you are not yet a User, Section 4 (applicable to visitors to our Websites) may be more applicable to you and your data.  In this Section, "you" or "your' refer to Users.

a. Information We Process.

i. Information You Provide To Us. You may provide Personal Information to us through the Services – for example, when you sign up for a Campaign Monitor account to access the Services, consult with our customer success or support teams, send us an email or communicate with us in any other way. We will usually let you know prior to collection whether the provision of Personal Information we are collecting is compulsory or may be provided on a voluntary basis and the consequences, if any, of not providing the information. The information you provide to us, may include:

1. Registration Information. You need a Campaign Monitor account to use the Services as a User. When you register for an account, we ask you to provide contact information such your name, email address, telephone number, job title, and organization name.

2. Billing Information. If you purchase our Services, you may also need to provide us with payment and billing information such as your credit card details and billing address. We will also maintain a record of your purchases, transactional information, your Services history and usage, and any communications and responses.

ii. Information Collected Automatically. When you use the Services, we automatically collect certain information about your device and use of the Services. We may use cookies and other tracking technologies to collect some of this information. Our use of cookies and other tracking technologies is discussed more below, in more detail below and in our Cookie Notice.

1. Device Information. We collect information from your device and applications you use to access our Services,  such as your IP address, device attributes (for example: hardware model, operating system, web browser version, as well as unique device identifiers and characteristics), connection information (for example, name of your mobile operator or Internet Service Provider, browser type, language and time zone, and mobile phone number); and device locations (for example, internet protocol (IP) addresses and Wi-Fi information).

2. Log data. Our web servers keep log files that record data each time a device accesses those servers and those log files contain data about the nature of each access, including originating IP addresses. We may also access metadata and other information associated with files that you upload into our Services, such as images.

3. Information relating to your use of the Services. We collect usage data about whenever you interact with our Services,  which may include the dates and times you access the Services, page views, which activities and features are used of our Services, crash logs, storage configuration settings, and technical data relating to the device(s) you are using to access and use the Services and the performance of the Services in doing so.

iii. Information We Obtain From Third Party Sources. We may receive information about you from other sources, including publicly available databases or third parties from whom we have purchased data, and combine this data with information we already have about you. This helps us to update, expand and analyze our records and provide Services that may be of interest to you. This Personal Information may include (for example), information such as your name, employer, job title, email address, phone numbers, and other company, contact, and/or employment information.

b. Why We Process Your Information.

We process your Personal Information for our legitimate interests, which include:

i. To Provide the Services. We process your Personal Information to provide the Services as follows: i) to identify who you are, including both for identification and authentication purposes; ii) to enable you to login and access your account; iii) to respond to your inquiries; iv) to provide you with customer support; v) to send you information as part of the Services; and vi) to provide you with information about your account, including renewals and changes in Services or your account status.

ii. To Market To You. To contact you  with marketing and promotional information (in accordance with your marketing preferences) about products and services that we or our Affiliates offer, to provide advertising to you on third party sites (based on your browsing activities on the Website), and to send you information regarding us, our Affiliates, and/or our partners (see the section headed "Your Data Protection Rights" for information about how you can opt-out of receiving marketing communications from us at any time). Marketing data purchased from third parties may be combined with information we already have about you and may be used to create more tailored advertising and products.

iii. To Customize Services to You. To help us deliver a better and more personalized experience (for example, it enables us to tailor our Services according to your interests); and to build a profile about you so as to help direct you to other relevant features and Services we offer and help you in using our Services, by making recommendations for you to optimize use of our Services.

iv. To Improve Our Services. To create new Services, features, content or make recommendations; improve our Services for you and all Users; and to fix bugs and troubleshoot product functionality.

v. For Business Analytics. To infer your geographic location based on your IP address; to track behavior at the aggregate/anonymous level to identify and understand trends in the various interactions with our Services; and to conduct internal business analysis based on meta-data about usage, feature adoption and forecasting.

vi. To Prevent Abuse/Illegal Activities. To screen for and prevent undesirable or abusive activity. For example, we have automated systems that screen content for phishing activities, spam, and fraud.

vii. For Legal Records. To identify who you are, including both identification and authentication purposes; to carry out our obligations and enforce our rights arising from any contracts entered into between you and us (including for billing and collection); and to respond to legal requests or prevent fraud. If we receive a subpoena or other legal request, we may need to inspect the data we hold to determine how to respond.

c. How We Share Your Information.

In the following limited situations, we may disclose information that we collect or that you provide to us:

i. to our contractors, service providers and other third parties who provide data processing services to us and with whom the sharing of your Personal Information is necessary to undertake the work e.g. to process billing, to analyze data, host data, to provide customer support and to deliver online and offline marketing communications about us and/or our Affiliates that we think will interest you.

ii. as required by law, such as to comply with any court order, subpoena or other law or legal process, when we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, investigate fraud, or respond to a governmental or regulatory request.

iii. to enforce our rights arising from any contracts entered into between you and us and for billing and collection.

iv. to Affiliates of our corporate group for customer support, marketing, technical operations, and account management purposes.

v. to a buyer or other successor in the event of a merger, sale or transfer of some or all of Campaign Monitor's assets.

d. Cookies And Tracking Technologies.

We (and our partners and vendors) use various tracking technologies (such as cookies and similar technologies like pixels and web beacons) to collect and store information when you use the Services.  For example, cookies allow us to collect information such as your IP address, browser, email client type and other similar details. We use this information to measure the performance of our application and to provide analytics information and enhance the effectiveness of our Services. We use page tags (also known as web beacons) in the emails we send to our Users. This means when you receive and engage with marketing messages we send to you, web beacons track certain behavior such as whether the email sent to you was delivered and opened. Links within these emails are tracked to show individual recipient’s clicks. For more information, read about our cookies and other tracking technologies in more detail in our Cookie Notice.

e. Children.

i. Our Services are not intended for and may not be used by minors. "Minors" are individuals under the age of 13 (of under a higher age if permitted by the laws of their residence).  We do not knowingly collect Personal Information from Minors or allow them to register. If it comes to our attention that we have collected personal data from a Minor, we may delete this information without notice. If you have reason to believe that this has occurred, please contact customer support.

ii. Customers and their Users are responsible for ensuring that their emails and data collection practices comply fully with applicable children's data privacy protection legislation, such as the United States' Children’s Online Privacy Protection Act (“COPPA”), including where relevant by obtaining parental consent prior to the collection of Personal Information. We rely upon our Customers to disclose whether or not their use is subject to COPPA.

f. Legal Basis For Processing Personal Information (EEA Residents Only).

i. If you are a User resident in the EEA, then our legal basis for collecting and using Personal Information described above will depend on the Personal Information concerned and the specific context in which we collect it.  However, where we are processing your Personal Information for our own purposes we normally rely on our legitimate interest to collect Personal Information from you, except where such interests are overridden by your data protection interests or fundamental rights and freedoms. Where we rely on our legitimate interests to process your Personal Information, they include the interests described in the sections above headed "Why We Process Your Information".

ii. In some cases, we may rely on your consent or have a legal obligation to collect Personal Information from you or may otherwise need the Personal Information to protect your vital interests or those of another person. If we rely on consent to collect and/or process your Personal Information, we will obtain such consent in compliance with applicable laws.

iii. If you have questions about or need further information concerning the legal basis on which we collect and use your Personal Information, please contact us using the contact details provided under the “Contact Us” heading below.

g. Data Retention.

i. We retain Personal Information we collect from you where we have an ongoing legitimate business need to do so (for example, to provide you with a Service you have requested or to comply with applicable legal, tax or accounting requirements).

ii. When we have no ongoing legitimate business need to process your Personal Information, we will either delete or anonymise Personal Information. If this is not possible (for example, because your Personal Information has been stored in backup archives), then we will securely store your Personal Information and isolate it from any further processing until deletion is possible.

iii. We will retain information we process on behalf of our Customers as a data processor for as long as needed to provide Services to our Customers (unless deletion is requested at an earlier time by the Customer) and as necessary to comply with our legal obligations, resolve disputes and enforce our agreements.

3. CAMPAIGN MONITOR USERS’ SUBSCRIBERS (GENERALLY EMAIL RECIPIENTS)

This section applies to Personal Information we collect and process about our User's Subscribers as a data controller when providing the Services. In this Section "you" or "your" refers to a Subscriber.

IMPORTANT NOTE:  Our Services are intended for use by our Customers. Their Users control the content of any Personal Information uploaded to the Services, the content of emails sent, forms built, and information provided at the point of data collection. Therefore, most of the time we collect and process Personal Information about our Customers’ Subscribers (like you), as a processor on behalf of our Customers (the controller). Campaign Monitor is not responsible for the privacy or security practices of our Customers, which may differ from those described in this Notice. We require our Customers to comply with all applicable laws and regulations and to provide Subscribers with notice of the collection of data as outlined in this Notice. To understand how Customers and their Users will use your Personal Information, you will need to directly contact the User who sent you the email or whose online form you filled out.

a. Information We Process.

i. Information We Receive About Subscribers from Users.   A User may provide Personal Information about you to us through the Services in connection with their use of the Services– for example, when a User imports and/or collects email addresses and other Personal Information about their Subscribers.

ii. Information Collected Automatically. When you interact with the Services (for example receive or open an email sent through the Services), we automatically collect certain information about your device and interaction with any content provided to you through the Services. We may use cookies and other tracking technologies to collect some of this information. Our use of cookies and other tracking technologies is discussed in more detail below in more detail below and in here. The information we automatically collect through the Services may include:

1. Device Information. We collect information from your device and applications you use to view emails sent via our Services,  such as your IP address, device attributes (for example: hardware model, operating system, web browser version, as well as unique device identifiers and characteristics), connection information (for example, name of your mobile operator or Internet Service Provider, browser type, language and time zone, and mobile phone number); and device locations (for example, internet protocol (IP) addresses and Wi-Fi information).

2. Email Engagement Data. Emails sent by or on behalf of our Users through the Services include page tags (also known as web beacons) that allow the sender to collect information about who opened those emails. Additionally, your engagement with any links in emails sent using the Services (for example, when you click a link) is reported to the User. Our use of cookies and other tracking technologies is discussed in more detail in our Cookie Notice.

b. Why We Process Your Information.

We process your Personal Information for our legitimate interests, which include:

i. In Connection With Support Queries. To respond to an enquiry which you may submit to us. For example, our customer support team may use your email address to communicate with you if you have contacted us about an email you received, but we will not send marketing to you unless you have otherwise opted-in to marketing.

ii. To Improve Our Product & Ensure Functionality.

1. To ensure the full functionality of the Service. We collect information using cookies about your interaction with an email sent to you through the Services. These cookies are used to ensure that the full functionality of our Services is operational; to ensure that the Service experience works well across all possible devices; and to fix bugs and troubleshoot product functionality.

2. To track behaviour at the aggregate/anonymous level to identify and understand trends in the various interactions with our Services (for example, by inferring geographic location to produce aggregated data around Subscriber location trends as they relate to open rates). This data will be aggregated and anonymized so we can examine patterns in terms of Subscribers’ preferences as they relate to email engagement. We collect and use all this data for our (and our Customer’s) legitimate interests, like providing our Customers with metrics around probability of engagement related to email sending times, locations, content and also to help our Customers understand industry trends in marketing.

3. Our use of cookies and other tracking technologies is discussed more below, in more detail below and in our Cookie Notice.

iii. To Prevent Abuse/Illegal Activities. To screen for and prevent undesirable, abusive, and/or illegal activity. We use your IP address and a Campaign Monitor auto-generated Subscriber ID for abuse monitoring purposes (so we can identify a User who abused the Services by sending spam email or sent an email in any other manner contrary to our usage policies and/or to facilitate a User in complying with their own legal obligations). We also have automated systems that screen content for phishing activities, spam, and fraud.

iv. For Legal Records. To enforce our agreements where applicable (for example we keep a record of the number of emails sent to individual Subscribers for to bill for Services used by our Customers). To respond to legal requests or prevent fraud, we may need to disclose any information or data we hold about you. If we receive a subpoena or other legal request, we may need to inspect the data we hold to determine how to respond.

c. How We Share Your Information.

In the following limited situations, we may disclose Subscriber information to someone other than the Customer or their User:

i. to our contractors, service providers and other third parties who provide data processing services to us and with whom the sharing of your Personal Information is necessary to undertake the work e.g. to process billing,  to analyze data, host data, deliver content and to provide customer support and other business related functions.

ii. to comply with any court order, law or legal process, including responding to a governmental or regulatory request.

iii. to Affiliates of our corporate group for customer support, technical operations, and account management purposes.

iv. to a buyer or other successor in the event of a merger, sale or transfer of some or all of Campaign Monitor's assets.

d. Cookies And Tracking Technologies.

We (and our partners and vendors) use various technologies to collect and store information when you interact with a User's email campaign or other content delivered through the Services, and this may include using cookies and similar tracking technologies, such as pixels and web beacons.  For example, we use page tags (also known as web beacons) in the emails we send on behalf of our Users. When you receive and engage with a User's campaign, web beacons track certain behavior such as whether the email sent through the Services was delivered and opened. They also allow us to collect information such as your IP address, browser, email client type and other similar details. Links within these emails are tracked to show individual recipient’s clicks.  We use this information to measure the performance of our User's email campaigns, to improve email deliverability and open rates and to provide analytics information and enhance the effectiveness of our Services as described in more detail above. For more information, read about our cookies and other tracking technologies in more detail in our Cookie Notice.

e. Legal Basis For Processing Personal Information (EEA Residents Only).

i. If you are a Subscriber who is a resident in the EEA, then our legal basis for collecting and using Personal Information described above will depend on the Personal Information concerned and the specific context in which we collect it. However, where we are processing your Personal Information for our own purposes we normally rely on our legitimate interest to collect Personal Information from you, except where such interests are overridden by your data protection interests or fundamental rights and freedoms. Where we rely on our (or our Customer’s) legitimate interests to process your Personal Information, they include the interests described in the sections above headed "Why We Process Your Information".

ii. In some cases, we may have a legal obligation to collect Personal Information from you or may otherwise need the Personal Information to protect your vital interests or those of another person.

iii. If you have questions about or need further information concerning the legal basis on which we collect and use your Personal Information, please contact us using the contact details provided under the “Contact Us” heading below.

f. Data Retention.

i. We retain Personal Information we collect from you where we have an ongoing legitimate business need to do so (for example, to prevent abuse or illegal activities, retain our legal records, or to comply with other applicable legal, tax or accounting requirements).

ii. When we have no ongoing legitimate business need to process your Personal Information, we will either delete or anonymise Personal Information. If this is not possible (for example, because your Personal Information has been stored in backup archives), then we will securely store your Personal Information and isolate it from any further processing until deletion is possible.

iii. We will retain information we process (as a data processor) on behalf of our Customers for as long as needed to provide Services to our Customers (unless deletion is requested at an earlier time by the Customer) and as necessary to comply with our legal obligations, resolve disputes and enforce our agreements.

iv. To have any Personal Information that is retained by us on behalf of the Customer deleted, please contact the Customer (the controller of that data).

4. CAMPAIGN MONITOR WEBSITE VISITORS

This Section applies to Personal Information that we collect and process through our Websites (for example when you visit our website and sign up for our marketing lists or apply for a job at Campaign Monitor) and in the usual course of our business, such as in connection with our events, sales and marketing activities.

a. Information We Process.

i. Information You Provide To Us. Certain parts of our Websites  may ask you to voluntarily provide Personal Information (such as your name, contact details and company name). For example, when registering for an account, expressing an interest in obtaining additional information about Campaign Monitor or our Services, subscribing to marketing, applying for a job, or otherwise contacting us. We may also collect Personal Information, such as your contact and professional background details and feedback, when you attend our events, take part in surveys, or through other business or marketing interactions we may have with you. You may choose to provide additional information when you communicate with us or otherwise interact with us, and we will keep copies of any such communications for our records.

ii. Information Collected Automatically. When you visit our Websites, like most website owners, we may also collect certain information automatically from your device, such as your device type, browser type, broad geographic location (e.g. country or city-level location), the referring website, what pages your device visited, and the time that your device visited our Website. In some countries, including countries in the European Economic Area, this information may be considered Personal Information under applicable data protection laws.  We (including our service providers) may use cookies, pixel tags and other similar tracking technologies to collect this information. Our use of cookies and other tracking technologies is discussed more below, in more detail below and in our Cookie Notice.

iii. Information We Obtain From Third Party Sources.  We may receive Personal Information about you from other sources, including publicly available databases or third parties from whom we have purchased data, and combine this data with information we already have about you. This helps us to update, expand and analyze our records, identify new customers, and provide Services that may be of interest to you. This Personal Information may include (for example), information such as your name, employer, job title, email address, phone numbers, and other company, contact, and/or employment information.

b. Why We Process Your Information.

i. To Provide You With Information You Have Requested. To respond to your requests or provide you with information requested by you, including where you apply for a job at Campaign Monitor or request information about our products or Services.

ii. To Market To You. To contact you  with marketing and promotional information (in accordance with your marketing preferences) about products and services that we or our Affiliates offer, to provide advertising to you on third party sites (based on your browsing activities on the Website), and to send you information regarding us, our Affiliates, and/or our partners (see the section headed "Your Data Protection Rights" for information about how you can opt-out of receiving marketing communications from us at any time). Marketing data purchased from third parties may be combined with information we already have about you and may be used to create more tailored advertising and products.

iii. For Business Analytics. To infer your geographic location based on your IP address; to track behavior at the aggregate/anonymous level to identify and understand trends in usage and the various interactions with our Websites and marketing content; determining the effectiveness of our marketing; and to conduct internal business analysis based on meta-data about usage, feature adoption and forecasting to improve our Websites and Services.

iv. For Website Optimization. To administer our Website and for internal operations, including troubleshooting, data analysis, testing, research, and statistical purposes; to understand how our Website is used and to improve our Website to ensure that content is presented in the most effective manner for you and your computer; and as a part of our efforts to keep our Website safe and secure.

v. For Legal Records. To comply with and enforce applicable legal requirements, agreements and policies.

c. How We Share Your Information.

In the following limited situations, we may disclose information that we collect or that you provide to us:

i. to our contractors, service providers and other third parties who provide data processing services to us and with whom the sharing of your Personal Information is necessary to undertake the work e.g. to process billing, analyze data, host data, provide customer support, and to deliver online and offline marketing communications about us and/or our Affiliates that we think will interest you.

ii. as required by law, such as to comply with any court order, subpoena or other law or legal process, when we believe in good faith that disclosure is necessary to protect our rights, protect your safety or the safety of others, investigate fraud, or respond to a governmental or regulatory request.

iii. to enforce our rights arising from any contracts entered into between you and us and for billing and collection.

iv. to Affiliates of our corporate group for customer support, marketing, technical operations, and account management purposes.

v. to a buyer or other successor in the event of a merger, sale or transfer of some or all of Campaign Monitor's assets.

d. Cookies And Tracking Technologies.

We (and our partners and vendors) use cookies and similar tracking technology (collectively "Cookies") on our Websites to collect and use Personal Information about you: (i) to ensure we are complying with our legal obligations (for example, we use cookies to infer your location and if, for example, you are in the EEA, we can ensure that we are compliant with regulations in the EEA); (ii) to serve targeted advertising to you, (iii) to analyse trends, administer the Website, track users' movements around the Website, and (iv) to gather demographic information about our user base as a whole. In addition, certain third parties, such as analytics companies, may use automatic information collection technologies to collect information about you when you use our Website. The information they collect may be associated with your Personal Information or they may collect information about your online activities over time and across different websites, apps and other online services websites. For more information, read about our cookies and other tracking technologies in more detail in our Cookie Notice.

e. Legal Basis For Processing Personal Information (EEA Residents Only).

i. If you are a website visitor or other prospective customer who is a resident in the EEA, then our legal basis for collecting and using Personal Information described above will depend on the Personal Information concerned and the specific context in which we collect it.  However, where we are processing your Personal Information for our own purposes we normally rely on our legitimate interests to collect Personal Information from you, except where such interests are overridden by your data protection interests or fundamental rights and freedoms. Where we rely on our legitimate interests to process your Personal Information, they include the interests described in the sections above headed "Why We Process Your Information".

ii. In some cases, we may rely on your consent or have a legal obligation to collect Personal Information from you or may otherwise need the Personal Information to protect your vital interests or those of another person. If we rely on consent to collect and/or process your Personal Information, we will obtain such consent in compliance with applicable laws.

iii. If you have questions about or need further information concerning the legal basis on which we collect and use your Personal Information, please contact us using the contact details provided under the “Contact Us” heading below.

f. Data Retention.

i. We retain Personal Information we collect from you where we have an ongoing legitimate business need to do so (for example, to provide you with information you have requested or to comply with applicable legal, tax or accounting requirements).

ii. When we have no ongoing legitimate business need to process your Personal Information, we will either delete or anonymise it or, if this is not possible (for example, because your Personal Information has been stored in backup archives), then we will securely store your Personal Information and isolate it from any further processing until deletion is possible.

5. GENERAL INFORMATION

a. Your Data Protection Rights (EEA Residents Only).

If you are resident in the EEA, you have the following data protection rights:

i. You can access, review, change, update or delete your Personal Information at any time by submitting a request to support via this support form.

ii. To remove your Personal Information from a Website testimonial or request removal of your Personal Information from our blog or community forum, please submit a request to support via this support form. In some cases, we may not be able to remove your Personal Information, in which case we will let you know if we are unable to do so and why.

iii. In addition, you can object to processing of your Personal Information, ask us to restrict processing of your Personal Information or request portability of your Personal Information. To exercise these rights, please submit a request to support via this support form.

iv. You can opt out of receiving marketing communication we send you at any time. You can exercise this right by clicking on the “unsubscribe” link in the emails we send you or by visiting our preference center, https://www.campaignmonitor.com/preference-center. To opt-out of other forms of marketing (such as postal marketing or telemarketing), please contact us at marketing@campaignmonitor.com. For data privacy concerns, use the contact details provided under the “Contact Us” heading below.

v. If we have collected and process your Personal Information with your consent, then you can withdraw your consent at any time. Withdrawing your consent will not affect the lawfulness of any processing we conducted prior to your withdrawal, nor will it affect processing of your Personal Information conducted in reliance on lawful processing grounds other than consent.

vi. You have the right to complain to a data protection authority about our collection and use of your Personal Information.  For more information, please contact your local data protection authority. Contact details for data protection authorities in the European Economic Area ("EEA"), are available here.

Please note that because most of the information we store can only identify a particular browser or device, and cannot identify you individually, you will need to provide us with some additional information to enable us to identify the Personal Information we hold about you and ensure that accurately fulfil your request. You may also be required to provide ID.

Further Information for Subscribers:  As described in this Notice, for much of the Personal Information we collect and process about you through the Services, we act as a processor on behalf of our Customers. In such cases, if you want to exercise any data protection rights that may be available to you under applicable law or have questions or concerns about how your Personal Information is handled by Campaign Monitor as a processor on behalf of our Customers, you should contact the relevant Customer that has contracted with Campaign Monitor for use of the Services, and refer to their separate privacy policies. If you are having difficulties finding this Customer, you can contact us through our support team and we will try our best to help you.

b. Third-Party Websites And Apps.

This Notice only applies to the Campaign Monitor Website and Services. We are not responsible for the privacy practices or disclosures of third parties that use or access the Campaign Monitor Website or Services. In addition, the Website or Service may contain links to third-party websites and apps. Any access to and use of such linked websites or apps is not governed by this Notice, but instead is governed by the privacy policies of those third parties. We are not responsible for the information practices of such third parties.

c. How Do We Keep Your Personal Information Secure?

i. We use appropriate technical and organizational security measures to protect any Personal Information we process against unauthorized access, disclosure, alteration, and destruction. More details of our security measures are available for review here.

ii. Unfortunately, nobody is truly and completely safe from hackers. Although we do our best to protect your Personal Information, we cannot guarantee security, no Internet transmission can ever be guaranteed 100% secure, and so we encourage you to take care when disclosing Personal Information online and to use readily available tools, such as Internet firewalls, secure e-mail and similar technologies to protect yourself online.

d. International Data Transfers.

i. The Website and the Services are provided, supported, and hosted in the United States. If you are using the Website or Services from outside the United States, be aware that your information may be transferred to, stored, and processed by us in our facilities and by those third parties with whom we may share your Personal Information, in the United States and other countries. These countries may have data protection laws that are different to the laws of your country.

ii. However, we have taken appropriate measures to require that your Personal Information will remain protected in accordance with this Notice and have implemented appropriate safeguards to require that your Personal Information will remain protected in accordance with this Privacy Notice. These include implementing the European Commission’s Standard Contractual Clauses for transfers of personal information between our group companies, which require all group companies to protect personal information they process from the EEA in accordance with European Union data protection law. We have implemented similar safeguards with our third party service providers and partners. Further details can be provided upon request.

e. Changes To This Privacy Notice.

We may revise this Notice from time to time in response to changing legal, technical or business developments. The most current version of this Notice will govern our use of your Personal Information. When we update our Privacy Notice, we will take appropriate measures to inform you, consistent with the significance of the changes we make. We will obtain your consent to any material Privacy Notice changes if and where this is required by applicable data protection laws. You can see when this Notice was last updated by checking the “last updated” date displayed at the top of this Notice.

f. Contact Us.

Thanks for taking the time to learn about our privacy notice. We hope it was clear and reassuring.

To execute a Data Protection Agreement (often referred to as a "Data Processing Agreement or "DPA"), please submit a request to support via this support form.

For general data privacy questions related to the Campaign Monitor Services, please email privacy@campaignmonitor.com.

To communicate with our Data Protection Officer, please email DPO@campaignmonitor.com.

If you have any questions, please contact us:

Campaign Monitor Address:

631 Howard St., Suite 500

San Francisco, CA 94105

Email: privacy@campaignmonitor.com

Important Note: If you are resident in the EEA, the "data controller" of the Personal Information described in this Privacy Notice is Campaign Monitor.

Anti-Spam Policy

At Campaign Monitor, we take anti-spam compliance very seriously. While anti-spam laws like CAN-SPAM are a step in the right direction for reducing the spam problem, we don’t feel they go far enough. Our definition of spam goes beyond the laws in most countries and encompasses what we believe to be true permission-based email marketing. Your compliance with this Anti-Spam Policy will help ensure that Campaign Monitor maintains its reputation and white-list status with major ISPs and whitelisting programs, which in turn, will ensure that you, our Customer (or, our end user if applicable), retain high deliverability rate and get the most utility out of our Services. You accept and agree that by creating an account and agreeing to our Terms of Use Agreement located at campaignmonitor.com/policies or executing a Master Terms of Use Agreement incorporating this Anti-Spam Policy, or by using or creating an account provisioned to you by one of our Customers and agreeing to our End Client Acceptable Use Policy, you are also agreeing to abide by the terms of this Anti-Spam Policy. Throughout this Anti-Spam Policy references to “We”, “Us”, and “Our” are references to Campaign Monitor, and references to “You” and “Your” are to the Customer, the Customer’s End Client, and/or the User, as appropriate in the context.

SECTION 1 | DEFINITIONS

The following definitions will apply to capitalized words in this Anti-Spam Policy:

  1. “Agreement” as used here mean either the Terms of Use Agreement located at campaignmonitor.com/policies or the Terms of Use Agreement executed by and between Campaign Monitor and you.
  2. “Anti-Spam Laws” means any and all applicable laws, regulations, statutes, rules, orders and other requirements of any international, federal, state or local governmental authority regulating the transmission of electronic messages.
  3. “Permission” means express, provable, and recent permission to contact Subscribers on the topic of an email. Recent, as used here, shall mean Permission was either: 1) obtained within the preceding 12 months; or 2) obtained at anytime and ongoing communications have been sent to the Subscriber over the course of the preceding 12 months.
  4. “Distribution Email Address” shall mean an email address associated with a distribution list that enables a User to send an email to multiple recipients by sending that email to the single email address associated with the distribution list.
  5. “Spam”, as used herein, is any email sent by a User to a Subscriber who has not given the User their direct Permission to do so, or marks such email as Spam.
  6. “Transactional Messages” shall have the meaning ascribed by applicable Laws.
  7. “Transactional Email Feature” means the feature of the Services that allows a User to automatically send communications upon the occurrence of a trigger action. For example, the Transactional Email Feature may be used to have an order confirmation email sent automatically to recipients who make a purchase from you.

Capitalized words in this Anti-Spam Policy that are not otherwise defined above shall have the meaning ascribed in the Agreement.

SECTION 2 | REQUIRED CONTENT

  1. Unsubscribe Link. You must ensure that all emails sent through your account contain a Campaign Monitor (or other Campaign Monitor-approved) “unsubscribe” link, in form and substance satisfactory to us, that: 1) allows Subscribers to instantly and permanently remove themselves from your Subscriber List(s), 2) presents unsubscribe instructions in a clear and conspicuous way, and 3) remains operational for a period of thirty (30) days after sending the email. You must monitor, correct, and process unsubscribe requests immediately. You must ensure that your Users do not remove, disable or attempt to remove or disable such link.
  2. Contact Information. Each email must clearly identify the individual or organization that authorized the sending of the email (“Authorizing Party”). This means that if a third party is sending messages on behalf of an Authorizing Party, the Authorizing Party must be identified. Identification must include the correct legal name of the Authorizing Party and a registered business number (if applicable). All identification information should remain valid for at least 30 days after the email is sent. Each email must contain a legitimate physical address and contact details for the Authorizing Party and any other contact information that may be required by Law.
  3. Other Required Information. All emails must state the reason the Subscriber is receiving the message. For example, “You are receiving this message from ABC Company because you signed up for our email Subscriber List at abc.com.”

SECTION 3 | PERMISSION

  1. You agree to import, access, and/or use only Permission-based Subscriber Lists. You represent and warrant that you have provided all applicable legally required disclosures in conjunction with obtaining Subscriber’s Permission. You further represent and warrant that you have not used any false or misleading information, names, email addresses, subject lines, or other information for the purpose of or in connection with obtaining Subscriber’s Permission. You must retain records of any Permission received and shall provide such records to us immediately upon request.
  2. Scope of Permission. You may not send emails to Subscribers on any topic that exceeds the scope of the topic that Subscriber has given you Permission to email them about. Any Permission obtained from a Subscriber shall be exclusive to you and will not extend to your Affiliates, unless such Permission was also granted to the applicable Affiliate.
  3. Permission must be obtained in one of the ways described below. A Subscriber:
    1. fills out an online form subscribing to your email marketing Subscriber List;
    2. opts-in via web form to your email marketing Subscriber List, provided that the opt-in box is not pre-selected by default;
    3. completes an offline form that clearly indicates that you may add them to your email marketing Subscriber List and they have expressly indicated their willingness to receive such emails;
    4. gives you their business card; provided: 1) you have explicitly indicated that by giving you their business card they are agreeing to being added to your email marketing Subscriber List; or 2) they added their business card to a container or pile that clearly indicated that by adding such business card they are agreeing to being added to your email marketing Subscriber List;
    5. purchases goods or services from you in the preceding 12 month period and there is a reasonable expectation that the Subscriber would consent to receiving emails; or
    6. provides you with other express written permission to be added to your email marketing Subscriber List prior to your contacting them via email.

SECTION 4 | APPROVALS, RESTRICTIONS, & COMPLIANCE

  1. Account Approval. Unless otherwise expressly agreed by us, you may not send any emails using the services until your account has been approved by a member of our trained compliance team.
  2. You agree that you will not:
    1. mail to Distribution Email Addresses, emails addresses copied or scraped from the internet; newsgroups, purchased, loaned, or rented lists;
    2. mail to any list obtained from a third party, unless pre-approved in writing by us, which approval may be withheld in our sole discretion;
    3. use the Services to administer illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or conduct any illegal activities;
    4. Use the Services to transmit or solicit material that:
      1. is Spam, obscene, threatening, harassing, or libelous;
      2. contains, links to, or displays nudity, obscene content, gambling related content, escort services, offers to make money online, pay day lender related content, illegal drugs, illegal software, viruses, or other content that we deem inappropriate in our sole discretion;
      3. violates or infringes the rights of a third party (including a third party’s privacy and/or intellectual property rights); or
      4. violates any applicable local, state, federal, and international Laws.
  3. Additional Restrictions.
    1. Content Subject to Compliance Approval. You must obtain prior written approval from our compliance team, which may be withheld in our sole discretion, before sending content related to pharmaceuticals, legal drugs, horoscopes, adult novelty items, diet advice, nutritional advice, supplements, or stock trading tips.
    2. Bulk Uploads. Prior to any bulk and/or large Subscriber List uploads to the Services, you must obtain prior written approval from our compliance team, which may be withheld in our sole discretion.
  4. Transactional Email Feature. You must not use the Transactional Email Feature to send non-Transactional Messages to Subscribers unless you have Permission to do so.
  5. Compliance. You acknowledge that the Services allow you to upload data related to your Subscribers and also to track your Subscribers engagement with emails sent using the Services and accordingly, you represent and warrant that you have complied with all notice, disclosure, consent, and other requirements imposed by applicable data privacy Laws prior to uploading an individual’s email address to a Subscriber List. You represent and warrant that you have complied with applicable data privacy Laws and Anti-Spam Laws in connection with your use of the Services.

SECTION 5 | OUR RIGHTS AND OBLIGATIONS

  1. Subscriber Lists. We will not use any Subscriber Lists or User Content for sending spam or any purpose other than those related to the Services.
  2. Monitoring. We reserve the right, but have no obligation, to:
    1. scan every campaign for the existence of an unsubscribe link. If an unsubscribe link is not detected, you will be informed and required to include a Campaign Monitor unsubscribe link before sending additional email messages or User Content via the Services.
    2. monitor and meter the number of KiloBytes of data transferred when sending email messages.
    3. monitor any and all User Content and your use of the Services to ensure compliance with this Anti-Spam Policy.
  3. Abuse Complaints. Emails sent through the Services may generate abuse complaints from Subscribers. Our software is directly integrated into the spam reporting systems of major ISPs. If someone marks your campaign as spam, we’ll be notified immediately. You are responsible for ensuring that email campaigns sent from your accounts do not generate a number of abuse complaints in excess of industry norms. If your complaint rate reaches 0.3% of all Subscribers (that’s 30 complaints aggregated across your accounts, including your End Clients’ accounts, for every 10,000 Subscribers) you will receive a warning email requesting an explanation and tips. If your complaint rate exceeds 0.3%, we may lock or terminate your account in our sole discretion.
  4. Right to Audit. We have the right to audit your accounts and records to evaluate such party’s compliance with this Anti-Spam Policy. You agree to procure, where necessary, that your End Client’s records are made available to us upon our request.
  5. Right to Suspend. We may, in our sole discretion, remove any User Content and/or suspend or terminate your (and/or your End Clients’) use of the Services for any actual or alleged breach of this Anti-Spam Policy at any time. Any suspension pursuant to this clause will not affect your obligation to pay fees owed to Campaign Monitor.
  6. Right to Terminate. We may, at our own discretion, immediately disable your access to the Services without refund if we believe in our sole discretion that you have violated this Anti-Spam Policy.

In the end, anti-spam compliance is about common sense. Take off your marketing hat and put yourself in your Subscriber’s shoes. If they don’t recognize who you are or aren’t interested in what you’re sending, they’ll think you’re a spammer. It’s that simple.

Updated March 28, 2017

If you have any questions about our previous Terms of Use, Privacy Policy, or Anti-Spam Policy, or if you want to report spamming activity by one of our customers, please contact our abuse department at:

Postal Address
Campaign Monitor
Level 38, 201 Elizabeth Street
Sydney NSW 2000
Australia

Telephone
+61 2 9521 5312

Email
info@campaignmonitor.com

Please note that the contact information provided above is regularly updated.