Terms of Services
You are prevented from entering our Services if you are a direct competitor, except with our prior written consent. You may not use the Services for purposes of benchmarking, competition or research purposes. The Agreement was last updated on February 19th, 2014. It is effective between You and Us as from the date of You accepting the Agreement. (“Effective Date”).
We offer powerful tools at a low price. In exchange We expect Our customers to act with integrity and follow Our Anti-Spam Policy in order to help Us maintain our reputation as a professional service provider having Subscribers who only communicate to persons who have consented to receiving that communication or with whom Subscribers have a previous relationship authorizing such communication. Reference is made to Appendix 1 «Anti-Spam Policy».If You use Our Services to send an unauthorized SMS or e-mail or other electronic message or campaign to a recipient , We may charge You a penalty equal to € 100 (one hundred Euros) per substantiated incident (i.e. per communication) or any larger amount that may be imposed under applicable law, with a minimum of the actual damages We would likely suffer from any abuse of Our system or violation of the Agreement or the laws that regulate sending out and the content of electronic communications.
The words and expressions of the Agreement shall have the meaning as established in this «Definitions» if not otherwise required from the context of the Agreement. Plural and singular word shall have the same meaning.“We”, “Us” or “Our” shall mean Loyalty Communication AS, a multi-channel communications service provider and Norwegian limited company, with its registered office at Willy Thoresens vei 37, 1459 Nesodden, Norway e-mail address firstname.lastname@example.org and business register number 894 806 672 MVA.
“You” or “Your” shall mean the legal entity for which You are accepting the Agreement, and Affiliates of that entity. “Affiliate” means any entity that is directly or indirectly owned or controlled by You with more than 50% of the shares or voting interests. “Subscriber” shall mean anyone subscribing to any of Our free and/or payable Services.
“Opt-in” shall mean someone is given the option to consent to receiving marketing communications by SMS, e-mail or other electronic means.
“Users” shall mean the persons for whom You have subscribed the Service and who have been supplied user identification and passwords by You (or by Us on Your written request).
Users may include Your employees, contractors, media agency or other third parties with which You transact business. “Service” shall mean the Service that is Ordered by You through an Order Form and made available by Us via the website www.loyaltycommunication.com (“Website”) “Order Form” and “Order” shall mean the document for placing Order(s) here under by completing an Order Form. You agree to be bound by the terms of the Agreement. “Site” shall mean Our Website. “Your Data” shall mean any and all electronic data or information, including but not limited to personal data and/or intellectual property rights protected works, marks and designs, submitted by You to the Services.
We reserve the right to change any of the terms of the Agreement by posting the revised Agreement on Our Website and/or by sending an e-mail to the last e-mail address You have given Us. Unless the Agreement is terminated by You within ten (10) days, this new Agreement will be effective immediately thereafter with respect to any continued or new use of the Service.
Our Services are only intended to be used in business-to-business and business-to-consumer communications. You thus have to be or represent a legal entity (business or organization) to sign up for and use any of Our Services. No person under the age of eighteen (18) years shall have the right to use Our Services. By using Our Services You represent and warrant that You are at least eighteen (18) years of age and that Your use of the Services does not abuse Our system or violate the Agreement or any IPR referred herein or the laws that regulate the use of the Services. Your uploads may be deleted and Your subscription may be terminated without notice if We have reason to believe that You are not and do not represent a legal entity (business or organization) or You are under eighteen (18) years of age or abuse or have intention to abuse Our system or violate the Agreement or any law.
6. FREE SUBSCRIPTION
You may use Our Services for free. Free subscriptions are limited to the use of the Service described in the Compare Packages section of Our Website.
The free subscriptions to the Services are provided “as-is” without any warranty.
7. ORDERED SERVICES
Any Ordered Service shall be accessible to You within forty-eight (48) hours after Our acceptance of Your Order.
8. USER SUBSCRIPTIONS
Our Services are purchased as User subscriptions and provided “as-is”. Only the Users named in the Order Form are allowed to access the Service(s). Each licensed User will be issued an unique password, which shall not be shared with any third party. You are responsible for maintaining the confidentiality of any User name and of the password provided to You and of any information of Us and of any third party obtained under the Agreement. You are solely responsible for usage of any account provided to You, whether or not the usage is authorized by You. You agree to immediately notify Us of any unauthorized use of any account of Yours and to Order any necessary Service to cover for the actual usage.
9. PRICES AND PAYMENT
The prices for Our Services are detailed on Our website and may be changed from time-to-time. You agree to pay any sales, use, value-added, or other tax or charge imposed or assessed by any government entity upon the use or receipt of Services, with the exception of any taxes imposed on Ournet income. Bronze, silver and gold online subscriptions and additional consumption related to free, bronze, silver and gold online subscriptions are paid in advance by credit card. If You select a bronze, silver or gold online subscription, You agree to at all times provide us with valid credit card information and authorize us to deduct the agreed charges against such credit card and to replace the information for any credit card that expires with information on a valid credit card. Any person using a credit card warrants that he or she is authorized to use such credit card. Enterprise and agency subscriptions are invoiced and paid in advance. Additional consumption related to enterprise and agency subscriptions beyond the consumption included in the prepayment are invoiced and paid in arrears. If You select enterprise or agency subscription, You agree to pay all the invoiced amounts within thirty (30) days from the date of invoice. We are required to provide You a refund if We terminate Our Services to You without cause before the end of the term for which You have paid. We retain the right to immediately refuse access to any Service in case the credit requirements are not fulfilled by You.
10. CANCELLATION AND REFUND OF PAYMENT
Your subscription Order may be cancelled by You at Your convenience at any time. If You cancel an annual subscription within thirty (30) days after the Order date, the payment We have received from You for the subscription will be refunded. If You cancel a quarterly subscription within ten (10) days after the Order date, the payment We have received from You for the subscription will be refunded. If you cancel a monthly subscription within five (5) days after the Order date, the payment We have received from You for the subscription will be refunded. Payment for any actual usage of the Services will be deducted before a refund is made. After end of the cancellation period (30 days for annual subscriptions, 10 days for quarterly subscriptions and 5 days for monthly subscriptions), all purchases are final and all payments made or accrued are non-refundable. Notwithstanding the foregoing, if Your account is terminated due to Your breach of the Agreement, no payment will be refunded even if You cancelled the subscription prior to the termination of Your account. When you Order extra usage credit directly from Us, a refund will be given if You cancel the extra usage credit within thirty (30) days after the Order date. Payment for any used usage credit will be deducted before a refund is made. After thirty (30) days from the Order date, Your purchase of extra usage credit is final and all payments made or accrued are non-refundable. Our refund policy does not apply to Services that are (a) purchased via one of Our third party partners (please contact the partner directly, who may decide in its sole discretion whether or not to pay a refund), or (b) paid for or allocated to your Account by one of Our administrators.
If You want to make a claim that We have charged You in error, you must give written notice of claim within ninety (90) days of when We charged You in error. No refund will be given for any claims where written notice is given later than ninety (90) days from when We charged You. We reserve the right to refuse a refund request if We reasonably believes (a) that You are trying to unfairly exploit this refund policy, for example, by making repetitive refund requests in respect of the Services; (b) if You are in breach of the Agreement or (c) if We reasonably suspect that You or someone with access to Your User account are using Our Services fraudulently.
11. EFFECTIVE DATE AND TERMINATION
The Agreement for subscription-based access to Our multi-channel marketing campaign platform services, shall become effective on the Effective Date and will expire on the termination date set forth in the Order Form.
12. FORCE MAJEURE
Either party’s failure to perform its obligations hereunder shall not be deemed a breach of the Agreement if such failure is due to fire, strike, war, civil unrest, terrorist action, governmental regulations, acts of nature, or other causes beyond the reasonable control of the party claiming Force Majeure. This provision shall not apply to Your obligation to pay any sums that are due prior to the Force Majeure event, which shall continue unabated.
13. THE PARTIES RESPONSIBILITIES
a. Our responsibilities
- provide respectively Our Standard or Premium support for the Ordered Service(s) to You at no additional charge and on request allow You to upgrade Standard to Premium support.
- use commercial efforts to make the Ordered Services available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Our reasonable control.
- provide the Ordered Service(s) in accordance with applicable laws and governmental regulations only.
- by means of planned, systematic measures ensure satisfactory data security with regard to confidentiality, integrity and accessibility in connection with the processing of Your Data.
- not modify or disclose Your Data except as
- allowed or obliged by law or
- permitted by You
- access Your Data with the exemption:
- to provide the Services to You,
- to improve the Services or address technical problems or
- for customer support on Your request.
- not store Your Date longer than necessary for fulfilling the Agreement.
b. Your responsibilities
- be responsible for Users’ compliance with the Agreement.
- be responsible for the accuracy, quality and legality of Your Data.
- justify to Us that You will not add or upload any content to the Service(s) unless You are the owner of all IPR or have a valid license from the owner(s) of all IPR, and have obtained releases for all related privacy and publicity rights.
- use commercially reasonable efforts to prevent unauthorized access to or use of the Service(s), and notify Us promptly of any such unauthorized access or use.
- make the Service(s) accessible to the Users and not to any third party.
- refrain from selling, reselling or leasing the Service(s) to any third party.
You shall not:
- use the Service(s) to store, communicate or otherwise process infringing, or otherwise unlawful or tortious material.
- use the Service(s) to store, communicate or otherwise process material in violation of third-party privacy rights.
- use the Service(s) to store, communicate or otherwise process Malicious Code.
- interfere with or disrupt the integrity or performance of the Service(s)
- attempt to gain unauthorized access to the Service(s) or their related sites.
- harvest or otherwise obtain contact details or any other information or material from Our Websites
- use purchased lists (regardless of the source, whether they are opt-in or not).
- use pre-checked fields on Your subscription form.
- use a subscription form that subscribes users to an unrelated list.
- send out unrelated offers or unrelated content to Your contacts or communities.
- add contact details to a list without the subscriber’s permission.
- keep persons on Your list who have requested to be removed from Your list.
- utilize a list older than six (6) months without prior reconfirmation of the recipients’ opt-in.
- violate any data protection and privacy laws and regulations applicable to the countries in which you are sending any form of communications via Our Services.
c. Responsibility for creation and distribution of campaigns
You are aware that the Service is provided through automated processes and that the Service content including campaigns are distributed based on Your Data as provided by You. You are therefore exclusively responsible that the created and distributed content and the forms of communication meet all legal requirement in any of the countries You choose to distribute Your campaign and You are exclusively liable of any legal obligations or law not complied with by You or someone under Your responsibility. In case legal obligations or laws are not complied with, You will hold Us harmless for all loss, damages and costs of any kind including reasonable legal fees.
d. You are aware and acknowledge that:
- capacity problems may occur.
- availability problems may occur as the Service is delivered through third party services providers over Internet.
- SMS delivery problems may occur as the success rate of SMS delivery depends on the terms of the mobile operator of the recipient.
14. DATA PROCESSOR
15. WARRANTIES OF COMPLIANCE WITH EU-REGULATIONS AND OTHER AUTHORITY REGULATIONS
You represent and warrant that You in any communications with Your customers and potential customers who reside in the European Economic Area (EEA) have complied and will comply with all data protection and privacy laws and regulations applicable to the countries in which you are sending any form of communications via Our Services. The same obligations shall apply to Your customer communication in all countries outside EEA.
16. INTELLECTUAL PROPERTY RIGHTS (IPR)
a. Reservation of IPR in the Services
With no prejudice to the limited rights expressly granted under the Agreement, We or Our Licensors shall have all intellectual property rights (IPR) in the Service(s). Any loss caused by IPR infringements by You or by any person under Your responsibility shall be borne by You.
b. Your campaigns
If You, a third party acting on Your behalf, or a User distribute campaigns using the Services, You authorize Us to host, copy, transmit, display and adapt such campaigns and process Your Data solely as necessary for Us to provide the Services in accordance with the Agreement. Subject to the above, We acquire no IPR from You or Your licensors under the Agreement in or to such campaigns or Your Data.
Notwithstanding the foregoing, in case You choose to use Our generic apps to distribute Your campaigns We are entitled to include those contacts using Our app in Our app Community.
We and You agree to retain in confidence the non-public terms of the Agreement and all other non-public information and know-how disclosed or that becomes known by either party as a result of activities pursuant to the Agreement, which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (“Confidential Information”). Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, representatives and contractors as is reasonably required under the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known; (ii) discovered or created by the receiving party without reference to the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law, court order or by any authority of any relevant country. Either party hereto may also disclose any Confidential Information here under to such party’s agents, attorneys and other representatives or any court of competent jurisdiction or any third party empowered here under as reasonably required to resolve any dispute between the parties hereto.
18. WHO MAY ORDER OUR SERVICES
To order any Service You must be or represent a legal entity (business or organization), complete the registration process, agree to the terms of the Agreement, provide true, complete and up to date information and be able to form legally binding contracts under applicable law. We reserve the right to refuse to deliver Services and to terminate accounts in case You or any of Your Users doesn’t meet the above requirements to use Our Services.
19. RESTRICTIONS IN USE
Loyalty Communication is a multi channel communications platform meant for lawful and non-offensive communications. In order to ensure the highest delivery rates possible for all Our customers we do not allow You to send out communications that might jeopardize the deliverability of our entire system. You can therefore not send:
- any communications that violate the laws that regulate sending out and the content of bulk and/or marketing communications.
- any communications that violate the laws that regulate privacy of IPR.
- pornography or sexually explicit communications.
- hateful, discriminatory or other in Our reasonable judgment inappropriate communications.
To the extent permitted by law, the material on Our Website and the Services (including all content, software, functionality, services, materials and information made available herein or accessed by means hereof) are provided as-is, without warranties of any kind, either expressed, implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.
You agree to indemnify and hold Us, and Our shareholders, management, employees and representatives, harmless from any and all damages resulting from any claims not permitted under the Agreement due to a “limitation of liability’ or other provision, that You assert, or may assert, based on or relating to Your use, or the use of any individual using Your password, of Our Website or the Services. You further agree to indemnify and hold Us and our shareholders, management, employees, licensors and other representatives, harmless from any and all losses resulting from claims of any third party, that result in whole or in part from allegations of conduct by You that would constitute a violation by You, or any person using Your password, of any of the terms of the Agreement.
22. LIMITATION OF LIABILITY
To the maximum extent permitted by law, You assume full responsibility and risk of loss resulting from Your use of Our Website and the Services, including any downloads from Our Website. Under no circumstances shall We or any of our shareholders, management, employees or representatives be liable for any indirect, punitive, special or consequential damages. Our total liability in any event is limited to the amount, if any, actually paid by You for the use of Our Website and the Services for the one month period ending on the date a claim is made and You hereby release Us and our shareholders, management, employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.
23. MANNER OF GIVING NOTICE
Except as otherwise specified in the Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing by post, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by e-mail and confirmed by receiver. Billing-related notices to You shall be addressed to the relevant billing contact designated by You through the registration form. All other notices to You shall be addressed to the relevant Service administrator designated by You through the registration form.
24. RELATIONSHIP OF THE PARTIES
The parties are independent parties. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. You accept that We refer to You being a Subscriber in marketing of Our Services. To request removal of Your name and/or logo from our marketing material, contact us at email@example.com.
25. ENTIRE AGREEMENT
The Agreement, including the Appendices hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless signed in writing by the party against whom the modification, amendment or waiver is to be asserted.
The Agreement and the rights granted to You here under may not be assigned, sublicensed or transferred, in whole or in part, by either party without prior written consent of the other party, except to a successor to substantially all of the business or assets of a party by merger or acquisition. Where consent is required, it will not be unreasonably withheld.
We disclaim and are not responsible for the behavior of any advertisers, linked websites or other third parties.
c. Compliance with law
In using the Services, You agree that You will comply with all laws applicable to the Agreeement.
Any unresolved dispute arising under the Agreement, including any question regarding its existence, validity or termination, shall at the request of either party, be referred to and finally resolved by arbitration under an arbitration court to be mutually appointed by the parties. The arbitration proceedings shall take place in Oslo, Norway and shall be conducted in Norwegian or English. This section is without prejudice to either party’s right to seek interim relief against the other party (such as an injunction) through the Norwegian courts to protect its rights and interests. The prevailing party in any arbitration shall be entitled to an award of its reasonable attorney’s fees and costs, in addition to any award or damages or other relief.
e. Applicable law
This Agreement shall be governed by and construed in accordance with the laws of Norway.
f. Force and Effect
If any provision of the Agreement is voided, deemed unenforceable or deemed illegal, the reminder of the Agreement and the reminder of such provision will remain in full force and effect. In the event of an ambiguity or question of intent or interpretation arises, the Agreement will be construed as if jointly drafted by the parties and no presumption, inference or burden of proof will arise favouring or disfavouring a party by virtue of authorship of any or all of the Agreement provisions.
g. Refusal of service
We reserve the right to refuse Services to anyone for any reason at any time.
This Anti-Spam Policy is by reference to Appendix 2 incorporated in the Terms of Service (the “Agreement”) posted at www.loyaltycommunication.com.
Our Services comprises primarily of a web-based technology platform through which content is delivered once a customer sends such content made by the customer or by someone for whom the customer is responsible. While each customer utilizes Our Services to assist with the transmittal of content to its recipients We do not actually act as sender on Your behalf, but merely as provider of parts of the technological infrastructure through which You yourself send Your content to your recipients. You are thus the responsible sender of the e-mails, SMS and other electronic messages. As the sender of e-mails, SMS and other electronic messages, You are required to comply with the terms set forth in the Agreement with Appendices and to comply with all applicable laws.
Generally, spam is defined as unsolicited mass communications to legal entities or persons with whom You do not have a relationship or who have not requested (opted-in to) Your communications.
Your account will be immediately terminated if You send spam using Our Services or system.
Please report without any delay any suspected abuse to firstname.lastname@example.org.
Please unsubscribe, if possible, from the communication of any spam sender and forward the complete communication in question to email@example.com.
We will take the appropriate action against the sender in question.
2. INTERNET SERVICE PROVIDERS (ISPs) AND BLACKLIST ADMINISTRATOR RELATIONS
We have and aim to build good relations with third party internet service providers (ISPs) and blacklist administrators and invite them to contact us at firstname.lastname@example.org in case of any concerns or questions.
3. POLICY ENFORCEMENT
We have a no tolerance spam policy and enforce it strictly.
We provide Our Services only to those who follow our strict anti-spam policy.
If You use Our Services to send an SMS or e-mail or other electronic message or campaign to a recipient whom You cannot document has consented to receiving that communication or with whom You cannot document to have a previous relationship authorizing the communication, You may incur a penalty equal to € 100 (one hundred Euros) per substantiated incident (i.e per communication) or any larger amount that may be imposed under applicable law, with a minimum of the actual damages We would likely suffer from any abuse of Our system or violation of the Agreement or the laws that regulate sending out and the content of electronic communications.
Measures We take to enforce Our Anti-Spam Policy include, but are not limited to:
- reviewing and monitoring large list imports, including a review of the list source, list age, collection methods.
- utilizing MD5 hash record to screen for characteristics of commonly harvested lists.
- utilizing a content-checking utility to screen and flag any message that contains words common to unsolicited emails.
We require each User to initial the following statement prior to using our Services:
- “I certify with my initials that all recipients consented to receiving the communication send out by me or that You had such previous relationship with the recipient that I am allowed to send out communications to the recipient. My usage of the Services complies with all data protection and privacy laws and regulations applicable to the countries in which I am sending any form of communications via the Services. I represent and warrant that any and all of my communications will contain a working mandatory unsubscribe/opt-out link at the bottom of the message.”
- Any User found to be using Our Services in violation of Our Anti-Spam Policy will be immediately cut-off from use of the Service.
- It is mandatory that any and all communications via Our Services contains a working unsubscribe/opt-out link at the bottom of the message and that this link cannot be removed from the communication.
4. PROCEDURE FOR HANDLING COMPLAINTS
Our Service may be used only by legal entities (businesses and organizations) and only in connection with their established list of permission-based opt-in recipients or with recipients with whom You have such previous relationship that You are authorized to use Our Service to communicate with them.
To determine whether You have sent spam we may:
- review the content of the message or campaign in question.
- review your subscriber list for patterns common to harvested lists.
- review any spam complaint.
- review the records to verify when the recipient subscribed to your subscriber list and the subscriber’s IP address.
b. Procedure for Handling False Positive Complaints
We realize that it is possible that You are falsely accused of sending out spam by persons who have forgotten that they have subscribed to Your communications.
For this reason, We might review Your contact list to check for opt-in and the date the recipient opted-in according to Your contact list.
If We have record of the recipient opting-in and the content of Your communications containing the content the recipient subscribed to, then We will notify such recipient of the date they subscribed to receiving Your communications and provide the recipient a link to unsubscribe from Your list.
Upon such complaint, We will notify You of the complaint, inform You about the action taken and potentially suggest changes to the notifications or descriptions You provide when subscribers sign up for your lists.
c. Transfer of Recipients
Please note that a recipient subscribing to one of Your lists does not allow You to transfer that recipient to other of Your subscriber lists or to send the recipient content that differs from the content the recipient has subscribed to.
5. PROCEDURE FOR HANDLING SUBPOENAS
In case someone wants to request information of one of Our customers in connection with a civil case said person or legal entity must serve Us with a subpoena or court order that is valid and enforceable according to applicable law, and agree to Our terms of compensation set forth herein.
All civil subpoenas should be directed to the Our legal representative.
Generally, it will take approximately three (3) weeks after the receipt of a valid subpoena or court order to produce any information; unless a formal objection is filed by You or We are legally required to do so.
We charge € 250 (two hundred and fifty Euros) per hour for research (plus additional fees if testimony or deposition is required), €0.25 (twenty five Euro cents) per page and € 65 (sixty five Euros) to respond via Express post.