Smashel Digital Marketing Targeted Email Product Terms
Last updated on December 1, 2023
IMPORTANT: THESE ARE THE PRODUCT TERMS (THESE “TARGETED EMAIL MARKETING TERMS”) PERTAINING TO (“SMASHEL DIGITAL MARKETING” OR “WE”) TARGETED EMAIL MARKETING SERVICE (THE “SERVICE”). THESE TARGETED EMAIL MARKETING TERMS ARE REFERRED TO IN THE SMASHEL DIGITAL MARKETING MARKETING SERVICES TERMS AND CONDITIONS (THE “MARKETING SERVICES TERMS”) AND ARE INCORPORATED THEREIN.
PLEASE READ THIS CAREFULLY. YOUR EXECUTION OF AN ORDER FORM FOR MARKETING SERVICES WHICH INCLUDES THIS SERVICE CONSTITUTES YOUR AGREEMENT TO BE BOUND BY THESE TARGETED EMAIL MARKETING TERMS.
IN THE EVENT OF A CONFLICT BETWEEN THESE TARGETED EMAIL MARKETING TERMS AND THE MARKETING SERVICES TERMS AND/OR ORDER FORM, THE TARGETED EMAIL MARKETING TERMS WILL CONTROL.
WE RESERVE THE RIGHT TO MAKE CHANGES TO THESE TARGETED EMAIL MARKETING TERMS AT ANY TIME. WE WILL PROVIDE NOTIFICATION OF CHANGES IN THESE TERMS BY UPDATING THE LAST MODIFIED DATE SET FORTH ABOVE. ALL SUCH CHANGES WILL BE BINDING UPON YOU ONCE POSTED, UNLESS SUCH CHANGES ARE MATERIAL IN WHICH CASE SUCH CHANGES WILL NOT TAKE EFFECT UNTIL THE NEXT TIME YOU SIGN AN ORDER FORM WHICH INCLUDES THIS SERVICE.
Terms not defined herein will have the meaning set forth in the Marketing Services Terms.
1. Description.
The Service consists of creating marketing emails (“Emails”) based upon your Client Content and distributing the Emails to the addresses licensed from a proprietary database of email addresses opted in to receive general marketing messages (the “Database”). Specifically, the following will be included as part of the Service:
a. Targeting email recipients based on, at your selection, geographic location, age, gender, education, income, and other life events (i.e., home ownership, familial status);
b. Delivery to the number of email addresses at the frequency set forth on your Order Form;
c. Your final review and approval over each email campaign prior to distribution; and
d. Monthly reporting on the performance of the Emails, including the number of Emails opened and clicked on and optional Match-Back reporting (as further set forth below).
Specific Service Partners and the support team included in the Service are subject to change from time to time at Smashel Digital Marketing's sole discretion.
2. Email Content.
All Client Content provided for the Emails shall be subject to Smashel Digital Marketing's specifications, and Smashel Digital Marketing may reject any such Client Content in its sole discretion or modify it to meet technical requirements or to address campaign performance issues. The acceptance of any Client Content does not constitute approval or endorsement of the Client Content by Smashel Digital Marketing. At your election pursuant to your Service Order, the Service may include (i) HTML conversion and/or (ii) creative support content, including generating materials and content such as text, images, and graphics (collectively, “Email Content”). If you do not elect Email Content services, you must supply all necessary Client Content, properly HTML formatted for delivery to the addresses in the Database. All Email Content shall remain the sole property of Smashel Digital Marketing and its third-party service providers, and you acknowledge and agree you shall not acquire any right, title, or interest therein pursuant to the Service.
3. Match-Back Reporting.
Subject to certain limitations, following the delivery of your Emails you may provide a properly formatted customer database (a “Customer List”) against which Smashel Digital Marketing will run analytics and provide reporting showing the quantity of matches between the Emails and your Customer List based upon names, email addresses, and location information (physical address, city, state, zip code) (the “Match-Back Reporting”). Smashel Digital Marketing acknowledges and agrees that it will not use your Customer List for any purpose other than delivering the Match-Back Reporting. A minimum of 30 days must have elapsed from the date of the first transmission of your Emails in order to perform Match-Back Reporting. Match-Back Reporting is not available if you are subject to the Health Insurance Portability and Accountability Act and regulations thereunder (“HIPAA”).
4. Fees.
You agree to pay the amounts set forth on the Order Form and/or the sign-up page. The Service, regardless of the number of Email distributions, shall constitute a single Cycle, and the Fees as set forth in the Order Form shall be due in advance of the first distribution of any Emails. If you signed up for the Service as part of a promotion, please refer to the terms of such promotion to determine the pricing and details of such promotion.
5. Term.
The Service shall continue for the number of deliveries and on the approximate timing set forth on your Order Form. The distribution(s) of the Emails may be paused or canceled in accordance with the Marketing Services Terms; provided, that notwithstanding any cancellation, you shall remain responsible for payment in full of the Fees set forth on your Order Form. Notwithstanding anything to the contrary in the Marketing Services Terms, the Order Form covering the Service shall not be subject to auto-renewal.
6. The Database.
You acknowledge and agree that (a) you shall not acquire any right, title, or interest in or to the Database, and (b) Smashel Digital Marketing will not disclose to you any email addresses therefrom or any data set forth therein, other than any reporting on the results of your Emails and the responses, including clicks from the Emails that will be directed to you and/or your website. The Database, and email addresses set forth therein, are provided solely on an “as is” basis, and Smashel Digital Marketing does not guarantee the performance of any Email campaigns.
7. CAN-SPAM.
In accordance with the CAN-SPAM Act of 2003 and any rules and regulations adopted thereunder (the “CAN-SPAM Act”), every Email will include an “unsubscribe” link that allows subscribers to opt out of the Database and receiving future commercial messages in connection therewith. If there are any email addresses to which you are not permitted to distribute marketing emails, you will promptly, and in any event prior to distribution of the Emails, notify Smashel Digital Marketing to prevent distribution of the Emails to any such addresses. Whether or not you order Email Content services, you acknowledge and agree that with respect to any Emails sent by the Service (a) the “from” line will accurately and in a non-deceptive manner identify your organization, your product, or your service, (b) the “subject” line of each Email will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (c) such Emails will include your valid physical address as set forth on your Order Form, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.
8. Limitations.
Except where the following restrictions are prohibited by applicable law, you shall not, and shall not permit your employees and agents making use of the Services, to (a) violate any policies and laws, including those related to (i) unsolicited emails, spamming, privacy, obscenity, or defamation, copyright and trademark infringement, child protective email address registry laws or the advertisement of regulated products or services, including those subject to HIPAA, (ii) advertising, sales, or promotional efforts or practices, redemption, refunds, and provision of your products or services, (iii) false, unfair and deceptive practices, coupons, gift cards/certificates, defective products or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards, (iv) lotteries, sweepstakes, contests, and promotions or laws that govern the collection of donations and charitable giving, or (v) discriminate or encourage discrimination against people based on personal attributes such as race, ethnicity, color, national origin, religion, age, sex, sexual orientation, gender identity, family status, disability, medical or genetic condition, including by (1) using audience selection tools to wrongfully target specific groups of people for advertising or (2) wrongfully exclude specific groups of people from seeing their ads; (b) send or forward personal mail through the Services; (c) upload or provide any 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”) through the Services or use the Services to collect, transfer, or store any Sensitive PII; (d) send or transfer any message through the Services that is greater than applicable data limits or use the Services in any other manner that puts an excessive burden on the bandwidth of the Services; (e) copy, modify, distribute, translate, or create derivative works of the Services, the Emails, or any reporting provided; (f) 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; (g) access the Services in order to build a competitive product or service or copy any features, functions, or graphics of the Services; (h) use the Services to store or transmit material in violation of any third-party rights, including intellectual property and privacy rights; (i) use the Services to store or transmit malicious code or malware; (k) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (k) hack, violate, attempt to violate, attempt to gain unauthorized access to the Services or their related systems or networks.
