VISTAPRINT EMAIL SERVICES AGREEMENT
YOU UNDERSTAND THAT BY AGREEING TO THIS AGREEMENT AND/OR BY USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT THAT BINDS YOU IN THE SAME WAY THAT A PAPER CONTRACT BINDS YOU. THIS AGREEMENT LIMITS VISTAPRINT LIABILITY AND OBLIGATIONS TO YOU TO THE TERMS SET FORTH HEREIN AND PERMITS VISTAPRINT TO CHANGE, SUSPEND, OR TERMINATE YOUR ACCESS TO AND USE OF THE SERVICES. YOU MUST ACCEPT, WITHOUT MODIFICATION, ALL OF THE TERMS, CONDITIONS, POLICIES AND INSTRUCTIONS REFERENCED IN THIS AGREEMENT IN ORDER TO ACCESS AND USE THE SERVICES. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE SERVICES.
|You may use the Services only in and for Your own internal purposes and business operations. You may not use the Services as a service for any third party, unless you are a part of Vistaprint’s authorized reseller program and Vistaprint has expressly authorized you to do so. No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the Services accessed by You hereunder, in whole or in part, is granted except as expressly provided by this Agreement. Neither You nor any of Your affiliates shall reverse engineer, decompile or disassemble the Software. Nothing in this Agreement will entitle You or any of Your affiliates to access or use the source code of the Software.
|You acknowledge that the Services and any other information provided to You by Vistaprint incorporate confidential and proprietary information developed by, acquired by, or licensed to Vistaprint (“Confidential Information”). You will take (and will cause Your affiliates to take) all reasonable precautions necessary to safeguard the confidentiality of the Confidential Information. Neither You nor any of Your affiliates will make any unauthorized use of the Confidential Information or disclose, in whole or in part, any part of the Confidential Information to any individual or entity, except to those of Your employees or consultants who require access for Your authorized use of the Confidential Information and agree to comply with the use and nondisclosure restrictions applicable to the Confidential Information under this Agreement. You acknowledge that any unauthorized use or disclosure by You or any of Your affiliates of the Confidential Information may cause irreparable damage to Vistaprint. If Vistaprint becomes aware of Your breach or threatened breach of this Section 2, Vistaprint may suspend any and all rights granted to You under this Agreement and shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to Vistaprint.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS.
|You shall indemnify and hold Vistaprint and its affiliates, and its and their officers, directors, employees, agents, licensors, and service providers (collectively, the “Indemnified Parties”) harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorney’s fees) suffered or incurred by any of them (“Liabilities”) to the extent that such are caused by or arise in connection with (i) a breach of any of Your obligations in this Agreement, (ii) any breach of Your representations and/or warranties contained in this Agreement, (iii) Vistaprint’s use, in connection with the performance of the Services hereunder, of any email addresses, Your end user information, or other information that Vistaprint obtains from You or any of Your affiliates for purposes of providing such Services, (iv) any content provided by You or any of Your affiliates, or (v) any emails, newsletters, or other materials sent out by You or any of Your affiliates using the Services. These obligations will survive any termination of Services, Your account and this Agreement hereunder.
5. EMAIL, PERMISSION PRACTICES, IMAGE HOSTING & PROHIBITED CONTENT.
You represent, warrant and covenant to Vistaprint that:
- No information or content delivered by You or any of Your affiliates to Vistaprint in support of this Agreement will infringe on any copyright, trademark, patent, trade secret or other proprietary right held by any third party.
- You will not use the Services in a manner that violates any law or regulation. Neither You nor any of Your affiliates will use the Services for purposes of, or transmit via the Services, (i) any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive or otherwise objectionable information, images, or other content of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or foreign law, including without limitation the U.S. export control laws and regulations; (ii) any chain letters, pyramid schemes or other deceptive, misleading, and/or fraudulent content; (iii) any unsolicited commercial or non-commercial communication; (iv) any emails with deceptive, misleading or false subject lines or header information that makes it difficult to identify the initiator of the email; (v) any information containing a virus, Trojan horse, worm, or other harmful component; (vi) or any materials that would be deemed Prohibited Content under Section 5(f) of this Agreement.
- Each list of email addresses provided to Vistaprint by You or any of Your affiliates consists solely of intended recipients who (i) can or will be categorized as an “opt-in” recipient by his, her or its agreement with You to receive such information via email, and (ii) has not or will not have notified You or any of Your affiliates of his, her or its desire not to receive email (i.e., no such person has “opted out” of the receipt of email with respect to You or Your products or services or any of Your affiliates or their products or services) (“Permission Based Lists”).
6. OUTAGE POLICY, INTENDED RECIPIENTS.
- Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with Your use of the Services. You hereby covenant and agree that You shall not use any other lists in connection with Your use of the Services. If You have used any feature of the Services that allows You to request a recipient to confirm that You have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, You agree that You shall not send emails to that recipient. Without limiting the foregoing, You agree that You shall not utilize the Services to send any commercial electronic mail message to any person who has opted out or otherwise objected to receiving such messages from You or another sender on whose behalf You may be acting. You cannot mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You cannot copy a Vistaprint template or any other features or functionality from the Services and use them for any purpose other than sending email messages from the Services. Emails that You send through the Services may generate spam complaints from recipients. You are responsible for ensuring that Your email campaigns do not generate a number of spam complaints in excess of industry norms. Vistaprint, in its sole discretion, shall determine whether Your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. Vistaprint will terminate Your use of its Services if Vistaprint determines that Your level of spam complaints is higher than industry norms.
- Spamming. You shall use the Services only in compliance with this Agreement, and all applicable laws and regulations related notably to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although Vistaprint has no obligation to monitor the content provided by You or Your use of the Services, Vistaprint may do so and may block any email messages, remove any such content or prohibit any use of the Services that Vistaprint believes may be (or is alleged to be) in violation of the foregoing.
- Footers. Unless you are a part of Vistaprint’s authorized reseller program, for every email message transmitted by the Services, You acknowledge and agree that Vistaprint may add an identifying footer stating "Email Marketing by Vistaprint," "Powered by Vistaprint" or a similar message.
- Images. Images hosted by Vistaprint on Vistaprint controlled servers may only be used in connection with the Services and for no other purpose whatsoever. To the extent You use images provided by Vistaprint, Vistaprint hereby grants to You a limited, non-exclusive, non-transferable sublicense during the term of this Agreement to use the images in an unaltered state solely in connection with Your use of the Services.
- Prohibited Content. Vistaprint prohibits the use of the Services by any person or entity that:
(i) Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
(ii) Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
(iii) Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
(iv) Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
(v) Posts or discloses any personally identifying information or private information about children without their consent (or their parents’ consent in the case of a minor).
(vi) Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
(vii) Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
(viii) Promotes, solicits or participates in pyramid schemes.
(ix) Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
(x) Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
(xi) Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
- Right to Disable Access. Vistaprint, at its own discretion, may immediately disable Your access to the Services without refund if Vistaprint believes in its sole discretion that You have violated any of the policies listed above or elsewhere in this Agreement.
7. VISTAPRINT PROPRIETARY RIGHTS.
|YOU ACKNOWLEDGE AND UNDERSTAND THAT VISTAPRINT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT VISTAPRINT MAY OCCASIONALLY EXPERIENCE “HARD OUTAGES” DUE TO INTERNET DISRUPTIONS THAT ARE NOT WITHIN ITS CONTROL. ANY SUCH HARD OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT. YOU FURTHER ACKNOWLEDGE AND UNDERSTAND THAT NOT ALL EMAIL MESSAGES SENT THROUGH USE OF THE SERVICES WILL BE RECEIVED BY THEIR INTENDED RECIPIENTS.
8. YOUR PROPRIETARY RIGHTS.
All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services, including, without limitation, Vistaprint, Vistaprint.com, the Vistaprint logo, and other Vistaprint owned or licensed logos and product and service names used in connection with the Services, are and will remain the sole and exclusive property of Vistaprint or its applicable licensors or service provider(s) (collectively, the “Service Marks”), whether or not specifically recognized or perfected under applicable law. You agree not to display or use the Service Marks in any manner whatsoever without Vistaprint’s prior written consent.
As part of the Services, Vistaprint may provide You with access to and use of graphics, photographs, images, document layouts, artwork, text, fonts, software tools, and similar design and graphical content (referred to herein as “Design Content”). Such Design Content may be accessed and used by You for the sole purpose of creating, operating and transmitting emails through the Services. To the extent Vistaprint provides You with access to and use of Design Content, Vistaprint grants You a non-exclusive, revocable, non-transferable, non-assignable, limited license to copy, use, reproduce, modify, and publish the Design Content for the sole purpose of creating, operating and transmitting emails through the Services. You acknowledge and agree that Vistaprint or its licensors own all legal right, title and interest in and to such Design Content, including any intellectual property rights. All rights in such Design Content are reserved worldwide and Vistaprint reserves all rights not expressly granted herein, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Design Content. It is strictly prohibited for You or any other third party to use, modify, retain, copy, distribute, transmit, publish, prepare derivative works of, or use any portion of the Design Content except as expressly allowed in this Agreement for the sole purpose of creating, operating and transmitting emails through the Services. You, and not Vistaprint, are entirely responsible for Your use of Design Content and for its combination with any other information or content. Vistaprint is providing such Design Content to You only as a convenience, and the inclusion of such content does not imply endorsement by Vistaprint of such content. Vistaprint reserves the right to add to, delete from, modify or remove completely any part of the Design Content at any time without prior notice, but Vistaprint is not responsible for any failure or delay in doing so. Without limiting the generality of the foregoing, upon any termination of Your account and/or the Services, the foregoing license shall automatically terminate and You must immediately cease all use of and access to the Design Content.
Vistaprint or its applicable licensors or service provider(s) shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Services or any new programs, upgrades, modifications or enhancements thereto, even if and to the extent any such refinements and improvements result from Your request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Vistaprint or its applicable licensors or service provider(s) by virtue of this Agreement or otherwise, You hereby transfer and assign (and, if applicable, shall cause Your affiliates to transfer and assign) to Vistaprint or its applicable service provider(s) all rights, title, and interest which You or any of Your affiliates may have in to such refinements and improvements.
9. DATA PRIVACY AND SECURITY.
Vistaprint and its applicable service provider(s) may use Your trademarks and trade names (“Your Marks”) solely in connection with the authorized provision of the Services. Any other use of Your Marks shall be with Your prior written consent and subject to all written guidelines You provide regarding the use of Your Marks. By submitting ideas, concepts, inventions, or content to Vistaprint or using them in connection with the Services, You agree that such submission is non-confidential for all purposes. If You make any such submission, You agree that You will not send or transmit to Vistaprint or to any third party using the Services, any communication or content that infringes or violates any rights of any party. If You submit any business information, ideas, concepts or inventions or content to Vistaprint by email, You agree such submission is non-confidential for all purposes. If You make any submission to this web site or if You submit any business information, idea, concept or invention to Vistaprint by email, You automatically grant—or warrant that the owner of such content or intellectual property has expressly granted— Vistaprint a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.
Vistaprint does not claim ownership of the content that You provide to Vistaprint or through the Services, and Vistaprint acknowledges and agrees that, subject to the terms and conditions of this Agreement, You will retain any and all applicable copyright and other intellectual property rights in Your content. Notwithstanding the foregoing, You hereby grant Vistaprint a non-exclusive, worldwide, irrevocable, perpetual, unlimited, assignable, royalty-free, license to (i) copy, host, use, reproduce, modify, prepare derivative works of, improve, distribute, transmit, publish, remove, retain, add to, combine with information provided by third parties, and publicly display Your content (a) on and through the Services for the purpose of creating, operating and maintaining the Services and (b) in Vistaprint’s promotional and advertising materials for the limited purpose of promoting the Services, and (ii) sublicense to third parties Your content to the extent necessary for the creation, operation, and maintenance of, in part or in whole, the Services. You also hereby grant Vistaprint the perpetual and irrevocable right to delete any or all of Your content from Vistaprint’s servers, and the Services, whether intentionally or unintentionally, and for any reason or no reason, without any liability of any kind to You or any other person. You agree that even though You retain certain copyright or other intellectual property rights in Your content, You do not own the account used to access the Service, nor do You own any data stored on Vistaprint servers (including without limitation any data representing or embodying any or all of Your content). No compensation will be paid or due You with respect to Vistaprint’s or its sublicensee's use of the materials as licensed in accordance with the foregoing terms. By submitting, posting, uploading, transmitting or otherwise making available any Your content or by posting messages, uploading files, inputting data, submitting any feedback or suggestions, or engaging in any other form of communication with or through the Services, You warrant and represent that You own or otherwise control the rights necessary to do so and to grant Vistaprint the license set forth above, and, pursuant to the terms set forth in Section 3, You will defend, indemnify and hold harmless Vistaprint and the other Indemnified Parties from any third party claim related to a breach of any of the foregoing representations and warranties.
10. CHARGES AND BILLING.
Vistaprint utilizes reasonable physical, electronic and procedural safeguards to help Vistaprint protect against the loss, misuse, disclosure and alteration of any of Your content or data that Vistaprint receives from You and any personal data Vistaprint receives from You about Your end users or customers (“End-User Data”). With respect to certain services provided pursuant to this Agreement as part of the Services, Vistaprint may act as Your data processor with respect to such End-User Data, in which case, as detailed below, Vistaprint processes such End-User Data only in accordance with Your instructions. You are responsible for complying with all consumer protection and data privacy laws (including compliance with the duty of information to data subjects) with respect to such End-User Data, and will indemnify, defend, and hold harmless Vistaprint and each other Indemnified Party from and against any and all Liabilities incurred by an Indemnified Party arising out of or related to Your failure to so comply.
Namely, Vistaprint shall fulfill the following obligations:
1. Process End-User Data exclusively pursuant to Your instructions and shall not use End-User Data for any other purposes other than those expressly indicated in this Agreement.
2. Not to disclose, transfer, assign or otherwise communicate to any third party the End-User Data, even for storage purposes, without Your previous authorization, save as required by law or set forth by administrative or judicial order.
3. Implement and maintain the relevant security measures required under applicable regulations.
4. Destroy or return to You (as indicated by You upon termination of the services) End-User Data, save as otherwise set forth by law. Notwithstanding the foregoing Vistaprint will keep End-User Data duly blocked to evidence effective compliance with contractual or legal duties during the statutes of limitation foreseen by applicable law.
On the other hand, You guarantee to Vistaprint compliance with the provisions on personal data protection that are applicable to You as a data controller of End-User Data, including:
1. The filing and, where applicable, the amendment of the files with the competent data protection authority.
2. The implementation of security measures set forth by applicable regulations.
3. The legitimate collection of End-User Data which is disclosed to Vistaprint for its processing, where applicable.
4. End-User Data communicated to Vistaprint will be kept up to date, and is adequate, relevant and not excessive towards the concrete, specific and legitimate purpose for which it was collected.
Vistaprint is authorized by You to subcontract all or part of its obligations under this Agreement to which end Vistaprint will enter into a data processing agreement with any subcontractors, which will set forth the same substantive obligations under this Clause. Pursuant to applicable data protection regulations, subcontractors will be considered as Your data processors and therefore shall follow Your instructions as regards the processing of End-User Data. However, You accept that said instructions may be directly transmitted to subcontractors by Vistaprint, and include all instructions necessary or appropriate to support the performance of this Agreement. Vistaprint shall provide You a copy of any data processing agreement entered into with its subcontractors upon written request. In addition, the parties agree that they hereby enter into the standard contractual clauses for data processors in third countries (2002/16/EC) (the “Model Processor Contract”), as issued by the European Commission, and as set forth in Attachment A to this Agreement, and that their respective signatures on this Agreement constitute their signatures on Attachment A.
11. DISCLAIMER OF WARRANTIES.
Vistaprint reserves the right to charge fees for the Services or any portion thereof and any applicable fees will be posted on the Vistaprint website. If You are required to pay a fee for all or any part of the Service for which You have chosen to subscribe, You hereby authorize Vistaprint to charge the designated valid financial account You provided to Vistaprint upon registration for the Services in advance for all applicable fees incurred by You in connection with Your account. Your account will automatically renew at the end of each applicable subscription period, unless Your account is terminated in advance of the end of the then-current subscription period. If there are any annual, monthly or similar periodic subscription fees associated with Your account, these fees will be billed automatically to Your designated valid financial account at the start of each renewal period, unless You terminate Your account before the relevant period begins. If You registered for the Services using a Vistaprint promotional code or discount, after the initial promotional period expires, Your subscription (base package and any purchased upgrades) will automatically be renewed and billing will continue at the then-current prices for the Services. You further acknowledge that it is Your responsibility to notify Vistaprint of any changes to Your valid designated financial account information, including, without limitation, updates to Your credit card number if Your credit card has expired, or Your account and access to the Services may be terminated or interrupted.
Vistaprint reserves the right to change any fees (which includes but is not limited to, increasing prices on existing or new services and charging a fee for upgrades and/or a service for which Vistaprint does not currently charge a fee) at any time and from time to time, provided, however, that Vistaprint will provide You with reasonable notice prior to making any fee changes to existing the Services. If You find any change to the pricing of the Services to be unacceptable for Your continued use of the Services, You are free to cancel the Services and terminate Your account at any time, but Vistaprint will not be obligated to refund any remaining portion of Your pre-paid fees when You cancel such the Services.
You agree to pay Your account balance when due. You also agree to pay any taxes, including sales, use, value added or other similar taxes, resulting from Your use of the Services. You are responsible and liable for any fees, including attorney and collection fees, that Vistaprint may incur in its efforts to collect any remaining balances due from You. This Section 10 shall in no way limit any other remedies available to Vistaprint at law or in equity. You also acknowledge and agree that You will be billed for and will pay any outstanding balances if Your Account is terminated due to Your breach of this Agreement. You must notify Vistaprint of any billing problems or discrepancies within sixty (60) days after they first appear on Your designated financial account statement. If You do not notify Vistaprint within sixty (60) days, You waive any right to dispute such problems or discrepancies.
12. LIMITATION OF LIABILITY.
|EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES, INCLUDING WITHOUT LIMITATIOIN THE SOFTWARE, ARE PROVIDED HEREUNDER “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS MAY BE OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, VISTAPRINT AND ITS APPLICABLE LICENSORS AND SERVICE PROVIDER(S) EACH EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE APPLICATION SOFTWARE OR APPLICATION SERVICES, WHETHER MADE BY EMPLOYEES OF VISTAPRINT OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY VISTAPRINT FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF VISTAPRINT WHATSOEVER.
13. CUSTOMER SUPPORT.
|NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR OTHERWISE, EXCEPT TO THE EXTENT OTHERWISE AGREED FOR DATA PROTECTION CLAIMS UNDER CLAUSE 6 OF THE MODEL PROCESSOR CONTRACT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VISTAPRINT AND/OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, OR ANY OTHER DAMAGES OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA, OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF VISTAPRINT OR ANY OF SUCH PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING OR ANY OTHER PROVISION IN THIS AGREEMENT, IN NO EVENT SHALL VISTAPRINT AND/OR ITS AFFILIATES, LICENSORS, OR SUPPLIERS BE LIABLE IN ANY RESPECT ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE THE SERVICES, (B) THE PROVISION OF OR FAILURE TO THE SERVICES, (C) ANY OF YOUR CONTENT OR OTHER INFORMATION, SOFTWARE, PRODUCTS, SERVICES OR RELATED GRAPHICS OBTAINED OR PROVIDED THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE CREATION, USE OR MAINTENANCE OF THE SERVICES, OR (D) YOUR STATEMENTS OR CONDUCT BY YOUR OR ANY THIRD PARTY ON OR WITH RESPECT TO THE SERVICES. THE FOREGOING DISCLAIMER OF LIABILITY IS EFFECTIVE WITHOUT REGARD TO THE FORM OF ANY ACTION, INCLUDING, BUT NOT LIMITED TO, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY. IN NO EVENT SHALL VISTAPRINT’S AGGREGATE LIABILITY TO YOU AND/OR ANY THIRD PARTY ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT YOU ACTUALLY PAID TO VISTAPRINT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS LESS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER VISTAPRINT NOR ANY OF ITS AFFILIATES, LICENSORS, OR SUPPLIERS IS OR SHALL BE RESPONSIBLE FOR ANY OF YOUR CONTENT OR OTHER DATA RESIDING ON OR ARISING FROM THE SERVICES, OR ANY HARDWARE OF VISTAPRINT OR ITS SUPPLIERS. IT IS YOUR RESPONSIBILITY TO TAKE THE NECESSARY STEPS TO ENSURE THAT YOUR PRIMARY MEANS OF BUSINESS IS MAINTAINED (IF APPLICABLE). THIS LIMITATION OF LIABILITY DOES NOT APPLY TO DAMAGES INCURRED BY WILFULL MISCONDUCT BY VISTAPRINT OR VISTAPRINT’S AGENTS.
VistaPrint offers certain phone support services at no additional charge. Phone support is limited to technical questions only. Non-technical questions including, but not limited to, questions relating to design, deliverability rules or issues, marketing planning or similar services, shall not be included in the phone support services offered at no additional charge. Applicable contact information and hours of operation for VistaPrint customer support is available at: http://www.vistaprint.co.uk/customer-care/contact-us-faqs.aspx.
In order for You to participate in the Services, Vistaprint will require You to provide specific information about Yourself and (if applicable) Your business. You agree to provide true, accurate and complete information and to refrain from impersonating or falsely representing Your affiliation with any person or entity. You shall maintain with Vistaprint a valid email address for Yourself at all times. You shall be responsible for maintaining the confidentiality of Your account and password and shall be responsible for any and all transactions by users given access to such account or password and any and all consequences of use or misuse of such account and password. You shall be responsible for all actions by such users, including without limitation present and former employees, partners, agents and representatives, and shall indemnify Vistaprint for such actions as set forth in Section 3.
16. THIRD PARTY BENEFICIARY.
|You may terminate this Agreement at any time by calling Vistaprint customer support. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND Vistaprint IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT. Upon confirmation of such cancellation, You will forfeit all credits, pre-paid fees, and any other amounts accruing to You, if any, and Vistaprint shall not be required to refund, redeem, or pay any such or other amounts to You. Vistaprint also reserves the right to collect fees incurred before You cancel Your account in addition to any applicable cancellation fee(s).
Vistaprint, in its sole discretion, may terminate, disable or suspend Your account and Your use of and access to the Services, at any time and for any reason, including, without limitation, (i) if You breach this Agreement, including, without limitation, due to (X) Your failure to make any required payments to Vistaprint when due, or (Y) Your failure to comply with the conduct rules set forth in this Agreement, including without limitation Sections 4 and 5 above; (ii) if Vistaprint is unable to verify or authenticate any information that You provide to Vistaprint; (iii) Vistaprint concludes in its sole discretion that Your use of or access to the Services may result in liability to Vistaprint or its suppliers or licensors, or (iv) upon Your bankruptcy or insolvency. If Vistaprint terminates Your account pursuant to (i), (ii), (iii) or (iv) above, You will forfeit all credits, pre-paid fees, and any other amounts accruing to You, if any, and Vistaprint shall not be required to refund, redeem, or pay any such or other amounts to You. Vistaprint shall have no liability to You or any third party because of such termination or action.
Upon cancellation or other termination of Your account for any reason, Vistaprint shall (i) collect all fees, commitments and obligations incurred or accrued by You; (ii) delete Your content, subscriber or campaign data, listings, messages or other information in connection with Your Account and Your use of or access to the Services; and (iii) prohibit Your access to and use of Your Account and the Services, including without limitation by deactivating Your password. In no event shall Vistaprint be required to return any of Your content to You upon any such termination. Vistaprint is not responsible for any damages to or losses incurred by You or any third party in the event You choose to cancel Your account and Vistaprint takes any of the above actions. After cancellation or termination, You shall process all unsubscribe requests within 30 days of Your last email campaign. Vistaprint will provide upon request the list of unsubscribe requests from Your account. You acknowledge that You are responsible for maintaining and honoring the list of unsubscribe requests following termination of Your account and this Agreement. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
You understand and agree that Your cancellation of Your account is Your sole right and remedy with respect to any dispute with Vistaprint. This includes, but is not limited to, any dispute related to, or arising out of: (i) any term of this Agreement or Vistaprint’s enforcement or application of any such term; (ii) any policy or practice of Vistaprint or Vistaprint’s enforcement or application of these policies; (iii) any content available through the Services or any change in content provided through the Services; (iv) Your ability to access or use the Services; or (5) the amount or type of fees, surcharges, applicable taxes, billing methods or change to the fees, applicable taxes, surcharges or billing methods, if any.
If Your account is classified (at Vistaprint's sole discretion) as inactive for over 60 days, Vistaprint has the right to permanently delete Your subscriber data. Vistaprint will use good faith efforts to contact You via email prior to taking any permanent removal actions.
17. GOVERNING LAW.
|ExactTarget, Inc. (“ExactTarget”) shall be deemed a third party beneficiary under this Agreement and You shall be liable to ExactTarget for any damages arising due to Your breach hereof to the same extent as if ExactTarget had been a signatory to this Agreement.
|The law governing this Agreement will be Bermudan law.
|STANDARD CONTRACTUAL CLAUSES (PROCESSORS)
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection.
Name of the data exporting organization: The customer who enters into the Vistaprint Email Services Agreement with Vistaprint and utilizes the Services (as that term is defined in the Vistaprint Email Services Agreement)
(the data exporter)
Name of the data importing organization: Vistaprint Limited
tel: fax: e-mail:
Other information needed to identify the organisation
(the data importer)
HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.
For the purposes of the Clauses:
- ‘personal data’, ‘special categories of data’, ‘process/processing’, ‘controller’, ‘processor’, ‘data subject’ and ‘supervisory authority’ shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (the Directive);
- the ‘data exporter’ shall mean the controller who transfers the personal data;
- the ‘data importer’ shall mean the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of these Clauses and who is not subject to a third country’s system ensuring to adequate protection;
- the ‘applicable data protection law’ shall mean the legislation protecting the fundamental rights and freedoms of natural persons and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
- ‘technical and organizational security measures’ shall mean those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
The data subject can enforce against the data exporter this Clause, Clause 4(b) to (h), Clause 5(a) to (e), and (g), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9, 10 and 11, as third-party beneficiaries,
The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9, 10 and 11, in cases where the data exporter has factually disappeared or has ceased to exist in law.
The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that he has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter’s behalf and in accordance with the applicable data protection law and these clauses;
(c) that the data importer shall provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that he will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that his data could be transmitted to a third country not providing adequate protection:
(g) that he agrees to forward the notification received from the data importer pursuant to Clause 5(b) to the data protection supervisory authority if he decides to continue the transfer or to lift his suspension;
(h) to make available to the data subjects upon request a copy of the Clauses set out in this Annex, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures.
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with his instructions and the clauses; if he cannot provide such compliance for whatever reasons, he agrees to inform promptly the data exporter of his inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that he has no reason to believe that the legislation applicable to him prevents him from fulfilling the instructions received from the data exporter and his obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, he will promptly notify the change to the data exporter as soon as he is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that he has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred:
(d) that he shall promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation;
(ii) any accidental or unauthorized access; and
(iii) any request received directly from the data subjects without responding to that request, unless he has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to his processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit his data processing facilities for audit of the processing activities covered by the clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses set out in this Annex, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter.
1. The parties agree that a data subject, who has suffered damage as a result of any violation of the provisions referred to in Clause 3 is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring the action referred to in paragraph 1 arising out of a breach by the data importer of any of his obligations referred to in Clause 3 against the data exporter because the data exporter has disappeared factually or has ceased to exist in law or became insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if he were the data exporter.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against him third-party beneficiary rights and/or claims compensation for damages under the clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The data importer agrees that, by agreement with the data subject, the resolution of a specific dispute can be referred to an arbitration body if the data importer is established in a country which has ratified the New York Convention on enforcement of arbitration awards.
3. The parties agree that the choice made by the data subject will not prejudice his substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the terms of the Clauses.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents him from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that he will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer warrants that upon request of the data exporter and/or of the supervisory authority, he will submit his data processing facilities for an audit of the measures referred to in paragraph 1.
|to the Standard Contractual Clauses
This Appendix forms part of the Clauses and must be completed and signed by the parties
The data exporter is (please specify briefly your activities relevant to the transfer):
Customer who is a signatory to the Email Marketing Services Agreement and this Attachment A Model Processor Contract.
The data importer is (please specify briefly activities relevant to the transfer):
Vistaprint Limited and Vistaprint B.V.
The personal data transferred concern the following categories of data subjects (please specify):
Data exporter’s customers and end users
Categories of data
The personal data transferred concern the following categories of data (please specify):
Name and contact information including email address.
Special categories of data (if appropriate)
The personal data transferred concern the following special categories of data (please specify):
The personal data transferred will be subject to the following basic processing activities (please specify):
The execution of email marketing campaigns on behalf of the data exporter.
|to the Standard Contractual Clauses
Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):
Data importer shall implement a written information security program (“Information Security Program”) that includes administrative, technical, and physical safeguards that ensure the confidentiality, integrity, and availability of personal data, protect against any reasonably anticipated threats or hazards to the confidentiality, integrity, and availability of personal data, and protect against unauthorized access, use, disclosure, alteration, or destruction of personal data. In particular, the data importer’s Information Security Program shall include, but not be limited, to the following safeguards where appropriate or necessary to ensure the protection of personal data:
- Access Controls – policies, procedures, and physical and technical controls: (i) to limit physical access to its information systems and the facility or facilities in which they are housed to properly authorized persons; (ii) to ensure that all members of its workforce who require access to personal data have appropriately controlled access, and to prevent those workforce members and others who should not have access from obtaining access; (iii) to authenticate and permit access only to authorized individuals and to prevent members of its workforce from providing personal data or information relating thereto to unauthorized individuals; and (iv) to encrypt and decrypt personal data where appropriate.
- Security Awareness and Training – a security awareness and training program for all members of data importer’s workforce (including management), which includes training on how to implement and comply with its Information Security Program.
- Security Incident Procedures – policies and procedures to detect, respond to, and otherwise address security incidents, including procedures to monitor systems and to detect actual and attempted attacks on or intrusions into personal data or information systems relating thereto, and procedures to identify and respond to suspected or known security incidents, mitigate harmful effects of security incidents, and document security incidents and their outcomes. Data importer shall notify data exporter immediately in writing of any such suspected or known security incidents that may affect or related to personal data.
- Contingency Planning – policies and procedures for responding to an emergency or other occurrence (for example, fire, vandalism, system failure, and natural disaster) that damages personal data or systems that contain personal data, including a data backup plan and a disaster recovery plan.
- Device and Media Controls – policies and procedures that govern the receipt and removal of hardware and electronic media that contain personal data into and out of a data importer facility, and the movement of these items within a data importer facility, including policies and procedures to address the final disposition of personal data, and/or the hardware or electronic media on which it is stored, and procedures for removal of personal data from electronic media before the media are made available for re-use.
- Audit controls – hardware, software, and/or procedural mechanisms that record and examine activity in information systems that contain or use electronic information, including appropriate logs and reports concerning these security requirements and compliance therewith.
- Data Integrity – policies and procedures to ensure the confidentiality, integrity, and availability of personal data and protect it from disclosure, improper alteration, or destruction.
- Storage and Transmission Security – technical security measures to guard against unauthorized access to personal data that is being transmitted over an electronic communications network, including a mechanism to encrypt electronic information whenever appropriate, such as while in transit or in storage on networks or systems to which unauthorized individuals may have access.
- Assigned Security Responsibility – Data importer shall designate a security official responsible for the development, implementation, and maintenance of its Information Security Program. Data importer shall inform data exporter as to the person responsible for security.
- Testing – Data importer shall regularly test the key controls, systems and procedures of its Information Security Program to ensure that they are properly implemented and effective in addressing the threats and risks identified. Tests should be conducted or reviewed by independent third parties or staff independent of those that develop or maintain the security programs.
- Adjust the Program – Data importer shall monitor, evaluate, and adjust, as appropriate, the Information Security Program in light of any relevant changes in technology or industry security standards, the sensitivity of the personal data, internal or external threats to data importer or the personal data, requirements of applicable Work Orders, and data importer’s own changing business arrangements, such as mergers and acquisitions, alliances and joint ventures, outsourcing arrangements, and changes to information systems.