Terms of Service – Email Advertising Services
THESE TERMS OF SERVICE (the “Agreement”) sets forth terms under which AMERICAN MARKETING, LLC, an Arizona limited liability company, (“AIM”) shall provide services (the “Services”) to you, the Advertiser, to include any Advertiser representative such as an agency, broker or other third-party submitting an order on Advertiser’s behalf (collectively the “Advertiser”, “You” or “Your”). This Agreement is effective as of the earlier of the date You first submit an order relating to the Services or first access or use the Services on AIM’ Order System (the “Services”) (the “Effective Date”). You expressly agree to abide by the policies in this Agreement and posted.
1. REPRESENTATIONS AND RESPONSIBILITIES OF THE PARTIES
Section 1.1 Advertiser Responsibilities
A. Order Acceptance. Orders will only be considered for acceptance if submitted using a AIM Insertion Order form. Revisions to orders including cancellations, changes to deployment times/dates, changes to quantity, or other changes of any sort, must also be submitted online using an AIM Insertion Order, which may be requested and offers a check-box to be ticked if a revision is being made to a previously submitted Insertion Order.
i. You will defend, indemnify and hold harmless AIM from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorney’s fees) incurred or arising from any claim by a third-party including any government agency arising out of or relating to Your Content or the use thereof by AIM in providing the Services.
ii. You agree that You solely are the Sender and Initiator as defined by the CAN SPAM Act of any emails we may deploy for you in our capacity as an Email Service Provider or List Owner of an email list we may have rented to You or otherwise provided for Your use in Your email campaign.
iii. If Your failure to comply with the terms of this Agreement results in AIM’s failure to deliver the email advertisements in accordance with the Insertion Order form, Advertiser will be liable for a cancellation fee of $350 (“Cancellation Fee”) if work by AIM has begun.
Section 1.2 Representations of Advertiser
A. If you are a commercial sender, You acknowledge and agree that CAN Spam Act requires you to process all email opt-out requests within ten (10) business days of receipt and you understand that AIM will supply these to you if you do not supply your own opt-out link in your email template within seven (7) days of its receipt of the opt-out request leaving you three (3) days to process such opt-out requests from your databases and that the CAN SPAM Act prohibits you from sending any future emails to an opted out email address or renting, licensing, selling, exchanging, giving or otherwise passing along or using an opted out email address in any future email campaign including if that email address appears on a different email address list you intend to use.
B. If you are a commercial sender, You further acknowledge and agree that the CAN SPAM Act requires you to operate a monitored opt-out link for thirty (30) days from the deployment date and that AIM will provide the opt-outs to you weekly until the 30th day. You agree that AIM is not responsible for nor liable for your compliance or non-compliance with this Section 1.2B so long as it supplies the opt-out data as required by this Section. This a Best Practice and AIM strongly encourages all advertisers to follow this policy.
C. The results of each campaign shall become the property and ownership of Advertiser and AIM in perpetuity.
Section 1.3 AIM Representations and Responsibilities.
A. AIM represents that its email address lists are fully CAN SPAM compliant, but does not warrant or guarantee that any email addresses provided are opt-in nor does AIM warrant or guarantee the deliverability or performance of the provided email addresses, which are otherwise offered “as is.” AIM does not warrant or guarantee that its deployment platform will be error free.
B. AIM will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. AIMs’ sole obligation and Your sole and exclusive remedy in the event of any failure by AIM to comply with the foregoing sentence will be for AIM to, at AIM’s option, to re-perform the affected Services or refund to You any fees You have actually paid for the affected Services.
C. AIM agrees to provide counts and to fulfill all orders accepted in its sole discretion. Orders of AIM-supplied email address data (“Data”) shall include a one-time deployment of the ordered Data at no additional charge to Advertiser to the contracted number of email addresses. AIM agrees to re-send to the number of non-deliverable AIM-supplied email addresses to make up for any difference between the contracted number of email addresses set forth in the written and accepted order and the actual delivered number at its own expense. AIM will not be held responsible for open rates, click-through rates, conversion rates or other email campaign performance as these are heavily influenced by factors beyond the control of AIM, including but not limited to subject lines, email design and content, the offer, determinations as to whether the List is an appropriate target for the offer, if the email is properly coded and in accordance with current industry best practices, etc. Accordingly, AIM shall not be required to resend any email campaign for the purpose of boosting opens and/or click-through rates or to resend an email on an unpaid basis due to the email campaign’s performance but may do so as an accommodation at its sole discretion. Deployment rates for any such resends shall be at the contracted price set forth in the written and accepted order, if applicable. This excludes Advertisers participating in any Pay-for-Performance send who shall not be responsible for any such charges.
i. AIM will deploy all orders and no copies of the list will be distributed to any third parties.
ii. AIM shall provide its standard form of tracking reports for all orders accepted and sent on or before the 7th and 14th business days following the completion of any deployment to include any resends.
iii. Due to the additional workload involved with AIM providing interim and/or additional tracking reports other than as specified above, a fee of One Hundred Twenty-Five Dollars ($125) shall apply to each such additional report ordered. AIM standard tracking reports shall be the sole document by which the delivery, open, click-through and other metrics are measured.
2. ORDER TERMS & ACCEPTANCE
Section 2.1 Order Acceptance
An order shall not be accepted and placed on the schedule until all assets are received by AIM including AIM’s Insertion Order signed by You, your properly coded and responsive email Creative, Seed List and/or Test List, Advertiser opt-out and suppression files from all sources, other suppression files as may be applicable, subject line, from line, reply-to line, from and reply-to email addresses which may not be a no-reply address and must be a monitored active email address (collectively “Assets”). All Assets are required to be received by AIM at least three (3) business days before the requested deployment date. If received in fewer than three (3) business days, at the sole discretion of AIM, the deployment date may be postponed by three (3) business days following the receipt of all Assets, the order may be rejected, or the order may be subject to a standard rush fee of five hundred dollars ($500) (the “Rush Fee”).
Section 2.2 Opt-Outs
Opt-out files should be updated as new opt-outs are received by Advertiser and Advertiser supplied files should include Advertiser’s name, order number, an opt-out option, suppression and file submission date. AIM will not be held legally responsible for opt-outs that are not submitted to it by Advertiser.
Section 2.3 Review and Approval
All email messages sent on behalf of Advertiser shall be subject to review and approval by AIM. AIM reserves the right to reject any message for any reason at its discretion. Advertiser shall be promptly advised of any work that AIM may be requiring for technical or content purposes and Advertiser will then have the option of resubmitting its Creative to AIM after making the required changes, withdrawing the order altogether, or requesting by email to Your AIM representative that AIM make the required changes subject to applicable Special Fees as set forth in this Agreement.
Section 2.4 Right to Adjust Template and Creative
AIM reserves the right, but shall not be obligated, to make adjustments to Advertiser’s email creatives to make them responsive so they render properly on tablets and mobile devices, to correct or improve defects to the submitted HTML and/or CSS coding, to assure they meet recommended graphics-to-text ratios, which can otherwise trigger blocking and heavy spam filtering, to correct typos, missing words or punctuation; and to format and style to assure that it meets all technical and industry best practices standards and that it does not have a high likelihood of triggering ISP or Webmail host spam filters or blocking. Should a creative be submitted that fails to meet the specifications, a fee of Ninety-Five Dollars per hour ($95/hour) with minimum charge of three (3) hours shall apply to the order. AIM also reserves the right to make minor edits to Advertiser’s email creatives for compliance purposes, (i.e. some state spam laws require specific opt-out language and designated positioning of the opt-out link, etc.), which shall be made at no charge by AIM. Advertiser (or whoever submitted the order to AIM). This work shall otherwise be considered authorized. The necessity to undertake any such work by either party after the original or subsequent submission date may result in a standard $500 Rush Fee or postponement to the deployment date until three (3) days following a completed, accepted order submission. This notwithstanding, AIM shall not be obligated to undertake any such work on behalf of Advertiser.
Section 2.5 Right to Edit and Recode for CAN SPAM Act Compliance
AIM shall also have the right, but shall not be obligated, to edit or recode the email template and/or creative as a best effort to make it compliant with the CAN SPAM Act and any applicable state laws based on its knowledge and own interpretation of such laws. This notwithstanding, in no event shall AIM be held responsible for any legal compliance relating to the Assets submitted by Advertiser including the creative (images and written content), subject line, from and reply‐to names and email addresses, domain names, content, tracking links and landing page which shall be the responsibility of Advertiser based on which party developed the Assets. AIM is not engaged in the practice of law and makes no claim or warranty as to the accuracy of its knowledge or interpretation of any law governing or applicable to email marketing and advises Advertiser to consult its own qualified legal counsel regarding any such laws and how they might apply to its submitted orders.
Section 2.6 Excluded States for Commercial Emails
Email addresses for certain states may be excluded should an assessment of applicable state laws by AIM or its Counsel deem it not to be in the best interest of AIM to offer them for commercial email orders and no price concessions to the CPM rate shall be offered, since the billed rates will not apply to omitted states to start with.
Section 2.7 Cancellations
Advertiser is required to provide AIM with at least three (3) business day’s prior written notice of any requests by Advertiser for changes to and/or cancellation of any order. Any such changes or cancellations shall be sent by email to Your AIM representative. Cancellations to Data orders after order has been run and/or cancellations to an email deployment after first test will result in a non-refundable cancellation fee of Three Hundred Fifty Dollars ($350) to cover set-up, order processing, scheduling and test costs. Creative changes to the email template or Creatives requested after acceptance of any order by AIM will be subject to the additional rates set forth in Section 6.2 below.
3. DATA USAGE
Section 3.1 Limited License
A. Upon Your execution of the Email Insertion Order, thereby agreeing to the terms and conditions of this Agreement and the payment of all amounts due to AIM, You are granted a personal, nontransferable and nonexclusive license to use the Data you may have rented for one-time use solely for Your direct marketing, market research and Advertiser prospecting purposes in strict accordance with the terms of this Agreement. The AIM-supplied email Data is rented to Advertiser for a single deployment solely by AIM on behalf of Advertiser. No copy of the Data will be provided to Advertiser or another third-party. No rights in the title to the Data transfers to Advertiser at any time.
Section 3.2 Turn Around Time
Orders of AIM-supplied email Data shall include a one-time deployment of the ordered Data by AIM at no additional charge to Advertiser. AIM shall make a best effort to fulfill orders for the Data within three (3) to five (5) business days following order acceptance, as is industry standard. Additional and interim tracking reports shall be subject to the Special Fees set forth is Section 6.2.
4. DISCLAIMER OF WARRANTIES AND LIABILITY
Section 4.1 Disclaimer Of Warranties; Limited Warranty
ANY EMAIL ADDRESS DATA PROVIDED BY AIM IS PROVIDED ON A STRICTLY “AS IS” BASIS. AIM DOES NOT ASSURE OR WARRANT THE CORRECTNESS, COMPREHENSIVENESS OR COMPLETENESS OF THE DATA AND, EXCEPT AS PROVIDED HEREIN, AIM DISCLAIMS ANY AND ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
Section 4.2 Limitation Of Liability
Except as provided herein, AIM will not be liable for any claim, demand, loss, liability, damage, injuries, cost or expense (including reasonable attorneys’ fees and legal costs), whether general, direct, special, incidental, consequential or any other damages, caused in whole or in part, or directly or indirectly, by any use of the Email Address Data or other type of Data , whether or not any such damages were foreseeable or regardless of whether AIM was advised of the possibility of such damages. AIM’ maximum liability under this Agreement will not exceed the amount(s) Advertiser has paid AIM under this Agreement for the specific order or services that allegedly or actually gave rise to any such failure.
Section 4.3 Your Indemnification Of AIM
You shall indemnify, defend and hold harmless AIM, its stockholders, directors, officers, employees, independent contractors and agents against any claim, demand, loss, liability, damage, injury cost or expense (including attorneys’ fees and legal costs) which arises, directly or indirectly, out of your act or omission with respect to the Email Address Data or other Data provided by AIM or any violation of the Agreement or any violation of Laws.
The Data shall be understood to include any or all of the following for the purposes of this paragraph: Email Address Data, Postal Address Data, Telephone Number Data and Demographic and Psychographic Attributes.
While every attempt has been made to ensure the integrity of the Data, the Data is not warranted as being error free and is provided on an “as is” basis and all representations, warranties and guaranties in respect of the Data, whether express, implied, statutory or otherwise, including as to the accuracy of the Data, are hereby disclaimed to the maximum extent permitted by applicable law by AIM, its list managers and its partners, directors, employees and agents. In no event will AIM and/or its list managers, partners, directors, employees and agents be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including invasion of privacy, loss of data, revenue, profits, use or other economic advantage), whether based in contract, tort, negligence, strict liability or otherwise, arising out of or relating to the Data or related services covered by this Agreement even if such damages are foreseeable and whether or not AIM has been advised of the possibility thereof.
Advertiser further acknowledges and agrees that AIM shall not be held legally responsible for the email message content, subject line, from or reply-to lines or email addresses, metadata or header data, representations or offers included in the email content, links or linked pages if provided by Advertiser.
5. DEPLOYMENT SERVICES
Section 5.1 Manner of Deployment
The parties understand and agree that AIM, at its sole discretion, may throttle any or all email deployments to an hourly rate that it deems as necessary to ensure optimum delivery and to prevent blocking by ISPs and Webmail Hosts. Advertiser agrees and understands that some ISPs and email hosts likewise throttle incoming emails from the same sender, which can delay receipt of held emails and soft bounce reports for a time generally concluding up to three (3) days following completion of an email deployment, in which case the first tracking report will be made available five (5) business days following receipt of all soft bounces so an accurate report can be provided. Advertiser acknowledges and understands that AIM has no control over the in-bound throttling of sent emails by receiving ISPs or Webmail Hosts. AIM shall not be held responsible for valid email addresses it provides that are bounced or blocked by the recipient ISPs and reserves the right to terminate any email deployment that in its sole opinion may damage its sender reputation. A make-good whether resend, refund or credit will only be offered if AIM determines that its IP Addresses or domain name were blacklisted or blocked at the time of deployment of Advertiser’s email campaign.
Section 5.2 Limitations on Use of Services
You understand that not all messages or campaigns sent through use of the AIM deployment platform will be received by or will be capable of being viewed by their intended recipients. You further understand that delivery of messages by means of the AIM deployment platform may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You also understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short.
The AIM deployment platform and any AIM supplied Email address data shall only be used for lawful purposes and You shall use the Services and the products only in compliance with this Agreement and all Laws including but not limited to the CAN SPAM Act.
6. OTHER SERVICES & SPECIAL FEES
Section 6.1 Other Services
Should the Advertiser require other services such as recoding of its HTML to assist in making it render properly or to comply with anti-SPAM laws, a fee of $95/hour shall apply to such services
Section 6.2 Late Fees applicable to late payments from Advertiser
AIM, in addition to other remedies, shall have the right to (i) charge late fees at the rate of two percent (2%) per month or, if lower, the maximum rate allowed by law, and (ii) charge You for any attorney’s fees and/or collection costs incurred by AIM in collecting any past due amounts from You.
Section 7.1 Material Breach
B. The defaulting party shall pay all costs, expenses, losses, damages and reasonable attorney fees incurred by the other in the exercise of any of its rights or remedies hereunder or as a result of enforcing any of the terms, conditions or provisions hereof may have against the other with respect to such default subject to and in accordance with the limitations set forth in Section 4.2 of this Agreement. No remedy referred to in this Section is otherwise intended to be exclusive, but shall be cumulative and in addition to any other remedy referred to herein or otherwise available to a party at law or in equity.
Section 7.2 Acts Of God
Any party may be excused from performance hereunder if such party’s failure arises out of Acts of God or causes beyond its control and without fault or negligence of such party including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike, snow or other conditions of nature, or other labor disturbance, breakdown or damage to machinery, equipment or software, malfunctioning of software, corruption of data, interruption or delay in telecommunications, acts or omissions of another party, web hosting or third party services, failure of third party software or inability to obtain raw materials, equipment, supplies or power used in or needed for rendering services by the parties. The party whose performance is so affected shall provide prompt notice to the other parties and shall use all reasonable efforts to mitigate the effects of such causes.
8. GENERAL TERMS AND CONDITIONS
Section 8.1 Confidentiality
All non-public information disclosed by a party hereto to the other party shall be deemed confidential information of the disclosing party and will be held in strict confidence by the receiving party. Each party shall not use such information other than for the provision of services to the other party. Confidential information shall not include information which is (i) in or becomes part of the public domain, (ii) demonstrably known to the receiving party previously, (iii) independently developed by the receiving party outside of this Agreement or (iv) rightfully obtained by the receiving party from third parties.
Section 8.2 Entire Agreement
“Agreement” means the entire content of this document, together with any other Supplements, Exhibits, or additional Addenda as may be attached hereto and incorporated herein by reference.
Section 8.3 Assignment
No party may assign this Agreement, or any of its rights or duties hereunder, to any other party without the prior written consent of the other, except to an acquirer or subsidiary or affiliate owned by that party. Such written consent shall not be unreasonably withheld.
Section 8.4 Amendments
This Agreement may be modified, changed or amended only in a written document signed by the parties. No employee of any party, other than an authorized officer of that party, shall have any actual or apparent authority to modify the terms of this Agreement.
Section 8.5 No Waiver
The failure of any party to insist upon strict compliance by another party with one or more covenants and restrictions contained herein, whether on one or more occasions, shall not be construed as a waiver, nor shall such a course of action deprive such party of the right thereafter to require strict compliance herewith. If the parties hereto waive any of the conditions, terms or provisions contained herein, or any duties or obligations of any party hereunder, such waiver shall be effective only if in writing and signed by the party waiving any such item.
Section 8.6 Severability
Should any clause, sentence, paragraph, subsection or Section of this Agreement be judicially declared to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and the parties agree that the part or parts of this Agreement so held to be invalid, unenforceable or void will be deemed to have been stricken here from as if such stricken part or parts had never been included herein.
Section 8.6 Choice of Law
This Agreement will be deemed to have been made in, and shall be construed pursuant to the laws of the state of Arizona and the United States without regard to conflicts of laws or provisions thereof. Any suit or proceeding arising out of or relating to this Agreement shall be commenced in the courts of and each party irrevocably submits to the jurisdiction and venue of such courts.
By submitting a signed Insertion Order to AIM, Advertiser acknowledges having read these Terms of Service and to agreeing to them in all respects.