1.Activation and Use of the Services.
- 1.1Account Access. On or before the Effective Date of the Service Schedule, Lyris shall provide Customer with an account name and a password that will allow access to the Services. Customer shall be responsible for any and all activities conducted through its account, whether or not such activities have been authorized by Customer.
- 1.2Registration Information. Upon Lyris’s request, Customer shall provide Lyris with accurate and complete registration information with respect to Customer’s use of the Services (including the identity, email addresses, and passwords of Customer’s authorized hosted list administrators) and to promptly update such information as changes occur.
- 1.3Content. Customer acknowledges that Lyris is not responsible for and does not give any assurance to any person with respect to the validity, value, usefulness, or accuracy of any Content. Customer and any person using the Services shall solely and exclusively bear any risk associated with Content.
- 1.4Lawful Use. Customer agrees to use the Services only for lawful purposes. Customer agrees that Lyris (in its sole discretion) may monitor any and all aspects of the Services for the purpose of auditing compliance with the Service Schedule. Customer will inform its users that their use of the Services will constitute consent to such monitoring. If Customer or any of its users restricts or inhibits any other customer or user of the Services, then Lyris may, in its sole reasonable discretion, terminate or suspend the right of Customer or Customer's user to use the Services.
- 1.6ISP Relations. Customer shall work with Lyris, at Lyris’s request, at maintaining relationships with Internet service providers (each, an “ISP”). Customer further acknowledges that Lyris may be required by an ISP or other third party to impose additional or modified consent procedures with respect to Customer’s email campaigns. Customer shall be responsible for handling customer service and abuse complaints related to Customer’s email campaigns, including without limitation processing unsubscribe requests.
2.Hosted Email Marketing Services. The following terms and conditions shall apply to Customer’s use of Lyris’s hosted email marketing-related Services.
- 2.1Prohibited Activities. Customer shall not employ any practices with respect to its email address lists that (in Lyris’s sole discretion) may increase the risk of ISP filtering, blacklisting, or blocking or otherwise may negatively impact Lyris’s reputation with ISPs. Without limiting the foregoing, examples of prohibited activities include sending messages to email addresses that have been purchased; sending messages to email addresses that have been harvested or scraped from sources on the Internet; sending messages to email addresses collected by third parties; sending messages for the first time to email addresses collected more than 3 years prior; sending messages to lists with an unusually low response rate; or attempting to manipulate or avoid ISP filters or reputation systems. Customer may not use the Services for a one-time mailing to a list of members after which Customer deletes substantially all of the membership and creates a new list. Customer’s membership must be a static, permanent list to which Customer adds or deletes new members and/or members subscribe or unsubscribe themselves in the ordinary course.
- 2.3Spamming Complaints. If Lyris receives complaints that Customer has transmitted and/or continues to transmit Spam, in addition to any other rights that Lyris may have under the Service Schedule or under applicable law, Lyris may at its sole option suspend Customer’s use of the Service pending a reconfirmation of Customer’s entire membership list. This reconfirmation may be required by Lyris in any reasonable manner it determines in its sole judgment including, without limit, sending a single email to all of Customer’s list members requesting confirmation of their wish to maintain their subscription to such list. Members who do not reconfirm within a reasonable time established by Lyris may be deleted from the list in question. Lyris agrees to use commercially reasonable efforts to contact Customer’s designated list administrator by email or phone before suspending Customer’s use of a Service. Customer’s consent will be requested before Lyris contacts Customer’s list members for the purposes of reconfirmation, however, if Customer does not consent to such reconfirmation, then Lyris may immediately and without further notice to Customer immediately terminate the applicable Service Schedule.
- 2.4Lyris Remedies. If Lyris determines in good faith that Customer has transmitted and/or continues to transmit Spam, in addition to exercising any other of its rights under the applicable Service Schedule and applicable state or federal law, Lyris will issue a one-time warning to Customer’s primary contact’s email address to cease such activity, after which if Spam transmission continues: (i) Lyris may bring an action in any court of competent jurisdiction to enjoin such activity, it being understood that such activity may cause irreparable harm to Lyris which may not be fully compensable by monetary damages, and (ii) Lyris may recover from Customer monetary losses caused to Lyris by such activity in an amount equal to the greater of (a) $500 for each such item of unsolicited email that Customer has sent to each separate and identifiable e-mail address (which amount the parties agree is a fair and reasonable estimate of Lyris’ losses suffered thereby and is not a penalty) or (b) Lyris’ actual monetary loss, including but not limited to any damage, loss or expense (including attorney’s fees) resulting from any third party claim made against Lyris as a result of Customer’s conduct in violation of this provision. In addition to the foregoing, Customer shall be responsible for reasonable costs incurred by Lyris in bringing such actions, including its reasonable attorney’s fees.
2.5Other Unacceptable Uses.Additionally, Customer may not use the Services to:
- 2.5.1Send email with an invalid "From:" or "Reply-to:" address. All messages posted to Customer’s list must contain valid email addresses that accurately reflect the sender’s identity and Customer must be responsive to all replies from members of Customer’s list, including unsubscribe requests. Customer may not refuse or ignore unsubscribe requests from members of Customer’s list.
- 2.5.2Harass; threaten; embarrass; or cause distress, unwanted attention, or discomfort to a person or entity.
- 2.5.3Post or transmit sexually explicit images or other Content that is deemed by Lyris to be offensive.
- 2.5.4Transmit any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content that is racially, ethnically, or otherwise objectionable, or that infringes upon the rights of any third party, as determined by Lyris.
- 2.5.5 Impersonate any person, including but not limited to, an official of Lyris or an information provider, or communicate under a false name or a name that Customer are not entitled or authorized to use.
- 2.5.6Intentionally or unintentionally violate any applicable local, state, national, or international law, including but not limited to any regulations having the force of law.
- 2.5.7Transmit any virus, malicious code, or anything destructive to a recipient’s computer.
- 2.5.8Exceed any volume limitations included in the applicable Service Schedule.
- 2.6Membership Confirmation. Any email sent to new members confirming membership on Customer’s list may not include advertising or calls-to-action other than an appeal to confirm the member’s subscription.
- 2.7Unsubscribing. All list messages must include the Lyris unsubscribe instructions in the body or footer of the message, so that members can unsubscribe themselves from the list. List owners must respond to member requests for manual removal from the list promptly, but in no event more than 10 days after the member’s first request. Customer shall not discard email messages from members asking to be removed from Customer’s list. Even if the user request for removal is aggressive, unfriendly, or otherwise rude, Customer should nonetheless make every attempt to help the user unsubscribe from Customer’s list and to resolve the situation.
- 2.8Suspension of Services. Lyris shall have the right to suspend performance of its Services described in a Service Schedule in the event that Customer’s bounce rate, unsubscribe rate, and/or number of recipient complaints are at a rate that is beyond the levels acceptable to an ISP through which Customer’s list is deployed, for any Customer use of the Services that Lyris reasonably determines is in violation of these Terms or Use or is necessary to avoid damage to Lyris’s systems, reputation, or business. Following any such suspension, the Service shall not be reinstated until Lyris is reasonably satisfied that the activities resulting in such suspension have been cured or shall cease. If Customer fails to so cure such activities within 30 days following the suspension, Lyris shall have the right to immediately terminate the applicable Service Schedule upon written notice to Customer.
Updated: February 27th, 2014