Effective date – February 11, 2022
Welcome to www.solelymassage.com (the “Site”). We understand that privacy online is important to users of our Site, especially when conducting business. This statement governs our privacy policies with respect to those users of the Site (“Visitors”) who visit without transacting business and Visitors who register to transact business on the Site and make use of the various services offered by Solely Therapeutic Massage (collectively, “Services”) (“Authorized Customers”).
“Personally Identifiable Information”
refers to any information that identifies or can be used to identify, contact, or locate the person to whom such information pertains, including, but not limited to, name, address, phone number, fax number, email address, and credit card information. Personally Identifiable Information does not include information that is collected anonymously (that is, without identification of the individual user) or demographic information not connected to an identified individual.
What Personally Identifiable Information is collected?
We may collect basic user profile information from all of our Visitors. We collect the following additional information from our Authorized Customers: the names, addresses, phone numbers and email addresses of Authorized Customers, the nature and size of the business, and the nature and size of the advertising inventory that the Authorized Customer intends to purchase or sell.
What organizations are collecting the information?
In addition to our direct collection of information, our third party service vendors such as credit card companies (https://squareup.com/us/en/legal/general/privacy), client booking agencies (https://www.massagebook.com/privacy-policy and clearinghouses) whom may provide such services as credit, and insurance, may collect this information from our Visitors and Authorized Customers. We do not control how these third parties use such information, but we do ask them to disclose how they use personal information provided to them from Visitors and Authorized Customers. Some of these third parties may be intermediaries that act solely as links in the distribution chain, and do not store, retain, or use the information given to them.
How does the Site use Personally Identifiable Information?
We use Personally Identifiable Information to customize the Site, to make appropriate service offerings, and to fulfill buying and selling requests on the Site. We may email Visitors and Authorized Customers about research or purchase and selling opportunities on the Site or information related to the subject matter of the Site. We may also use Personally Identifiable Information to contact Visitors and Authorized Customers in response to specific inquiries, or to provide requested information.
With whom may the information may be shared?
Personally Identifiable Information (not including HIPAA compliant Health Records) about Authorized Customers may be shared to evaluate potential transactions with other Authorized Customers, this may take the form of business reviews and recommendations. We may share aggregated information about our Visitors, including the demographics of our Visitors and Authorized Customers, with our affiliated agencies and third-party vendors. We also offer the opportunity to “opt out” of receiving information or being contacted by us or by any agency acting on our behalf.
How is Personally Identifiable Information stored?
Personally Identifiable Information collected by Solely Therapeutic Massage is securely stored and is not accessible to third parties or employees of Solely Therapeutic Massage except for use as indicated above.
What choices are available to Visitors regarding collection, use and distribution of the information?
Visitors and Authorized Customers may opt out of receiving unsolicited information from or being contacted by us and/or our vendors and affiliated agencies by responding to emails as instructed, or by contacting us at Solely Therapeutic Massage, 1236 Dr. Martin Luther King Jr. St. N, St. Petersburg, FL 33705
A cookie is a string of information that a website stores on a visitor’s computer, and that the visitor’s browser provides to the website each time the visitor returns.
Are Cookies Used on the Site?
Cookies used by our service providers
How does Solely Therapeutic Massage use login information?
Solely Therapeutic Massage uses login information, including, but not limited to, 2 Factor Authentication, IP addresses, ISPs, and browser types, to analyze trends, administer the Site, track a user’s movement and use, and gather broad demographic information.
What partners or service providers have access to Personally Identifiable Information from Visitors and/or Authorized Customers on the Site?
How does the Site keep Personally Identifiable Information secure?
All of our employees are familiar with our security policy and practices. The Personally Identifiable Information of our Visitors and Authorized Customers is only accessible to a limited number of qualified employees who are given a password in order to gain access to the information. We audit our security systems and processes on a regular basis. Sensitive information, such as credit card numbers, is protected by encryption protocols, in place to protect information sent over the Internet (https://squareup.com/us/en/legal/general/privacy). While we take commercially reasonable measures to maintain a secure site, electronic communications and databases are subject to errors, tampering, and break-ins, and we cannot guarantee or warrant that such events will not take place and we will not be liable to Visitors or Authorized Customers for any such occurrences.
How can Visitors correct any inaccuracies in Personally Identifiable Information?
Visitors and Authorized Customers may contact us to update Personally Identifiable Information about them or to correct any inaccuracies by emailing us at email@example.com
Can a Visitor delete or deactivate Personally Identifiable Information collected by the Site?
We provide Visitors and Authorized Customers with a mechanism to delete/deactivate Personally Identifiable Information from the Site’s database by contacting. However, because of backups and records of deletions, it may be impossible to delete a Visitor’s entry without retaining some residual information. An individual who requests to have Personally Identifiable Information deactivated will have this information functionally deleted, and we will not sell, transfer, or use Personally Identifiable Information relating to that individual in any way moving forward. HIPPA compliant health records are securely kept on file as required by law.
These are summarized rights that you have under data protection law
- The right to access
- The right to rectification
- The right to erasure
- The right to restrict processing
- The right to object to processing
- The right to data portability
- The right to complain to a supervisory authority
- The right to withdraw consent
USES AND DISCLOSURES OF YOUR PROTECTED HEALTH INFORMATION
Protected health information includes demographic and medical information that concerns the past, present, or future physical or mental health of an individual. Demographic information could include your name, address, telephone number, and any other means of identifying you as a specific person. Protected health information contains specific information that identifies a person or can be used to identify a person.
Protected health information is health information created or received by a health care provider, health plan, employer, or health care clearinghouse.
Your protected health information may be used or disclosed by Solely Therapeutic Massage for purposes of treatment, payment, and health care operations. Health care professionals use medical information to take care of you. Your protected health information may be shared, with or without your consent, with another health care provider (for example, if you have a service with another massage therapist) for purposes of your treatment. Solely Therapeutic Massage may use or disclose your health information for case management and services.
Solely Therapeutic Massage may also may send you appointment reminders, information about treatment options or other health-related benefits and services.
Some protected health information can be disclosed without your written authorization as allowed by law. Those circumstances include:
Reporting abuse of children, adults, or disabled persons.
• Investigations related to a missing child.
• Internal investigations and audits (example- making sure a therapist completed notes or having to access those notes to send upon request)
www.solelymassage.com contains links to other websites. Please note that when you click on one of these links, you are moving to another website. We encourage you to read the privacy statements of these linked sites as their privacy policies may differ from ours.
Mobile Messaging Terms and Conditions
Last updated:September 21, 2022
- Program Description: We may send promotional and transactional mobile messages in various formats through the Program. Promotional messages advertise and promote our products and services and may include [promotions, specials, other marketing offers, and abandoned checkout reminders and may include Transactional messages relate to an existing or ongoing
Mobile messages may be sent using an automated technology, including an autodialer, automated system, or automatic telephone dialingsystem. Message frequency will vary [but will not exceed 5 messages per month from constant contact]. You agree that we, our affiliates, and any third-party service providers may send you messages regarding the foregoing topics or any topic and that such messages and/or calls may be made or placed using different telephone numbers or short codes. We do not charge for mobile messages sent through the Program but you are responsible for any message and data rates imposed by your mobile provider, as standard data and message rates may apply for SMS and MMS alerts.
You agree to have provided a valid mobile phone number of which you are the owner or authorized user. If you change your mobile phone number or are no longer the owner or authorized user of the mobile phone number, you agree to promptly notify us at firstname.lastname@example.org or 727-279-5205. Your participation in the Program is not required to make any purchase from us and your participation in the Program is completely voluntary.
- User Opt-Out and Support: You may opt-out of the Program at any time. If you wish to opt- out of the Program and stop receiving mobile messages from us, or you no longer agree to these Mobile Messaging Terms, reply STOP, QUIT, CANCEL, OPT-OUT, and/or UNSUBSCRIBE to any mobile message from us. You may continue to receive text messages for a short period while we process your request and you may receive a one-time opt-out confirmation message. You understand and agree that the foregoing is the only reasonable method of opting out. For support, reply HELP to any mobile message from us.
Our mobile messaging platform may not recognize requests that modify the foregoing commands, and you agree that we and our service providers will not be liable for failing to honor requests that do not comply with the requirements in these Mobile Messaging Terms. We may also change the telephone number or short code we use to operate the Program and we will notify you of any such change. You acknowledge that any requests sent to a telephone number or short code that has been changed may not be received by us and we will not be responsible for failing to honor a request sent to a telephone number or short code that has been changed.
- Disclaimer of Warranty and Liability: The Program is offered on an “as-is” basis and may not be available in all areas, at all times, or on all mobile providers. You agree that neither we nor our service providers will be liable for any failed, delayed, or misdirected delivery of any mobile message or information sent through the Program.
- Modifications: We may modify or cancel the Program or any of its features at any time, with or without notice. To the extent permitted by applicable law, we may also modify these Mobile Messaging Terms at any time. Any such modification will take effect when it is posted to our website. You agree to review these Mobile Messaging Terms periodically to ensure that you are aware of any modifications. Your continued participation in the Program will constitute your acceptance of those modifications.
Constant Contact, Inc. Text Messaging Terms and Conditions of Use
These are the following rules for their customers set by Constant Contact, Our SMS messaging service provider and shared from their website.
NOTICE: We have updated our Text Messaging Terms and Conditions of Use as of August 08, 2022 to provide clarity around our customer’s obligations specific to laws and regulations applicable to Customer Data and Customer’s use of the Service, record retention and opt-out responsibilities.
Last revised: August 08, 2022
Subject to the terms of these Text Messaging Terms and Conditions of Use (the “Texting Terms”) and the Constant Contact Website and Product Terms and Conditions of Use available at https://www.constantcontact.com/legal/terms and all other Constant Contact policies incorporated therein, including the Prohibited Content and Commerce Statement and Privacy Notice (the “General Terms”, and together with the Texting Terms, the “Agreement”), Constant Contact, Inc. (“Constant Contact,” “we,” “us,” or the “Company”) will make the SMS and/or MMS texting services (the “Service”) available to you and any business or organization you represent (“you” or the “Customer”).
The Texting Terms are intended to supplement the provisions of the General Terms specifically with respect to the Service and not to limit, supersede or override the General Terms, and should be interpreted accordingly. In the event of a conflict between the Texting Terms and the General Terms, the Texting Terms shall prevail with respect to issues specific to the Service. For the avoidance of doubt, if there are terms and conditions in the General Terms regarding subjects on which the Texting Terms are silent, such silence will not constitute a conflict and the terms and conditions in the General Terms will control in those situations. Any reference to Constant Contact’s Product or Products in the General Terms includes the Service, and any reference to messages or campaigns in the General Terms includes Messages.
Capitalized terms not defined within this document are defined in the Glossary at the end of this document.
- SUPPLY OF SERVICE AND RESTRICTIONS
2.1 Grant of Rights.
Constant Contact grants to Customer a non-exclusive and non-transferable right to use the Service and Documentation as permitted under the Agreement solely for the Customer’s internal business operations.
2.2 Acceptable Use Policy.
With respect to the Service, Customer shall not:
(a) except to the extent such rights cannot be validly waived by law, disassemble, decompile, reverse-engineer, copy, translate or make derivative works,
(b) market, rent, sell, lease or use for non-civilian purposes,
(c) transmit any content or data that is unlawful or infringes any intellectual property rights, or
(d) circumvent or endanger its operation or security.
2.3 Commercial Messages.
Customer acknowledges that the Service is intended solely for Commercial Messages and shall not be used for mobile to mobile peer to peer messaging purposes. For the purpose of this Section, “Commercial Messages” means Messages designed to promote or facilitate, directly or indirectly, the goods, services or image of any person or entity pursuing a commercial activity as well as Messages of governmental entities and non-profit entities.
Constant Contact or its vendors or subcontractors may, but are under no obligation to, monitor use of the Service (only to the extent allowed by applicable law):
(a) to comply with applicable law, regulation, or other governmental request or order including disclosing Customer Data in accordance with such law, regulation, request or order;
(b) to verify Customer’s compliance with the Agreement;
(c) to protect the integrity of its systems and networks and those of its suppliers;
(d) as necessary to provide and support the Service; or
(e) as otherwise approved or requested by Customer.
Customer shall promptly provide any information as Constant Contact or any Service Provider may request relating to Customer Data or Customer’s use of the Service:
(a) to determine Customer’s compliance with the Agreement, and
(b) in response to any request made by any regulatory or governmental, legal or statutory body.
Constant Contact may, in its sole discretion, require Customer to take primary responsibility for any request or inquiry made under this Section 2.5 or Section 3.1(d) below relating to any Customer Service, Message(s) or Customer Data or arising from Customer’s use of the Service or from an alleged or actual breach of this Agreement by Customer. Customer agrees, at its own cost, to accept full responsibility for any such request or inquiry including for any expenses, penalties, fines, sanctions or other analogous costs that may arise, and in relation to such request or enquiry, to provide all requested information to such regulator, Network Provider or Service Provider (with copies to Constant Contact) in a timely manner.
2.6 Operating Instructions.
Customer shall comply, and use the Service in accordance, with the operating guidelines and policies as Constant Contact may provide to Customer from time to time or as otherwise set out in the Agreement.
2.7 Suspension of Service.
Constant Contact or its vendors, including the Network Providers, may suspend use of the Service:
(a) as necessary to comply with applicable law or regulation;
(b) to perform maintenance (whether planned or emergency) or repair to the Network;
(c) if the use poses a threat to the integrity or continued operation of the Network or any part of it;
(d) if the use is in breach of the Agreement or otherwise exposes Constant Contact, its vendors (including the Network Providers) to legal liability;
(e) in Constant Contact’s sole discretion, if not doing so would cause material harm to the Services, Constant Contact’s provision thereof, the Network, or the Network Providers; or
(f) if Constant Contact is unable to provide the Service due to a termination or alteration of Constant Contact’s relationship with any third party (including the Network Providers) or the termination or suspension of any license or authorization necessary to provide the Service.
Constant Contact will promptly notify (email permitted) Customer of the suspension. Constant Contact may resume the Service once the cause of the suspension has been remedied, provided that if a suspension is due to Customer’s actions or inactions, Constant Contact will not resume the Service until Customer has remedied the cause of the suspension and Customer will pay any applicable reconnection charge or, if no charge is specified, Customer shall reimburse Constant Contact for all reasonable costs and expenses incurred by Constant Contact in resuming the Service and further provided that Constant Contact may terminate the Agreement if Customer does not remedy the cause of the suspension within fifteen (15) days. If the suspension is the result of a violation of these Texting Terms or the Agreement, Constant Contact may terminate the Service in accordance with Section 5.1.
2.8 Third Party Web Services.
The Service may include integrations with web services made available by third parties (other than Constant Contact or its Affiliates) that are accessed through the Service and subject to terms and conditions with those third parties. These third party web services are not part of the Service and the Agreement does not apply to them.
2.9 Mobile Access to Service.
Customer may access certain Services through mobile applications obtained from third-party websites such as Android or Apple app store. The use of mobile applications may be governed by the terms and conditions presented upon download/access to the mobile application and not by the terms of the Agreement.
The Service and the Agreement may be modified or amended by Constant Contact from time to time. Future performance by Constant Contact under the Agreement is sufficient consideration for any such modification or amendment. Any modification or amendment will only become effective upon notification to Customer (by email, by posting on our website, or by other reasonable means of notification) and, if Customer does not want to agree to such modification or amendment, Customer should stop using the Service and contact Constant Contact to cancel the Service.
Constant Contact or the Network Providers may use anonymous information relating to use of the Service to prepare analyses. Analyses do not contain Customer’s Confidential Information. Examples of analyses include: optimizing resources and support; research and development; verification of security and data integrity; and internal demand planning.
- CUSTOMER RESPONSIBILITIES AND CUSTOMER DATA
3.1 Customer Obligations.
(a) comply with all laws and regulations applicable to it in connection with the Customer Data and Customer’s use of the Service, including but not limited to the Telephone Consumer Protection Act (TCPA), Telemarketing Sales Rule (TSR), state telemarketing laws and regulations, the Federal Trade Commission Act and state law equivalents, export control laws and regulations, economic, trade and financial sanctions laws, regulations, embargoes, restricted state lists or restrictive measures administered.
(b) In furtherance and not in limitation of clause (a) above, comply with all Service Provider Conditions, applicable legal and regulatory requirements and conditions, and all applicable industry guidelines relating to the Customer Data, Customer Services, Messages or its use of the Service, including without limitation, time of day restrictions under the TCPA and various state laws (which restrict the times of day during which Messages can lawfully be sent) and applicable guidelines of the Cellular Telecommunications Industry Association (CTIA). If a Service Provider changes the Service Provider Conditions and/or the technical standards for the delivery of Service, Constant Contact may modify the terms and conditions governing such Service upon written notice to Customer (by email or by posting on the Constant Contact website).
(c) Customer shall retain documentation related to records of End User consent for at least four years from the date of transmission of the record to Company. Without limiting the foregoing, Customer shall provide to Company evidence of any specific consent requested by Company within three (3) business days of Company’s written request.
(d) immediately comply with such directions and/or orders as may be issued from time to time by a governmental or regulatory authority in relation to the Customer Data or its use of the Service and shall fully cooperate with any request by Constant Contact, a Network Provider or a Service Provider for assistance in conforming the Service to any new requirements or determinations.
3.2 End User opt-in/opt-out requirements.
Customer shall use the Service to send Messages only to End Users who have provided, and continue to provide, the applicable level of consent required under the TCPA, the TSR, and all applicable regulations and state or local law, to send the type of Messages that Customer intends to send using the Service; and who have not withdrawn such consent. Without limiting the foregoing, Customer shall send Messages only to End Users who have, and continue to, knowingly consent or “opt-in” to receiving them and who have been informed of their rights to, and been given, a free, readily accessible process for canceling receipt or “opting-out” of receiving future Messages, such as via End User text responses of STOP, QUIT, CANCEL, OPT-OUT, and/or UNSUBSCRIBE. Customer shall immediately stop sending Messages to an End User who has “opted-out” from receiving such Messages. At Constant Contact’s request, Customer shall provide Constant Contact with proof of any and all such opt-in(s) and opt-out(s), and response time to discontinue transmission of Messages after opt-out, to Constant Contact’s reasonable satisfaction. Customer expressly agrees that it is solely responsible for obtaining any and all consents necessary by law, rule, or regulation to send Message to End Users. Further, Customer expressly agrees that it shall not rely on, and Company shall not be liable for, any guidance, statements, or approvals provided by Company concerning consent, opt-outs, or other requirements under applicable law, rules, or regulations.
3.3 Supply of Customer Services.
Customer shall inform End Users that it is the source and supplier of the Messages and provide appropriate contact details to End Users. Customer shall bear sole responsibility for the acts, omissions or breaches of End Users with respect to the use of the Service, Customer Services and the Messages, including but not limited to the Customer Data. Customer shall promptly inform Constant Contact if it becomes aware of any violation of the terms of this paragraph.
3.4. Restrictions. Customer shall not use the Service or permit the Service to be used:
(a) in a manner that violates any applicable law, regulation, industry guidelines, or code of practice, or that violates, infringes or misappropriates the rights of any third party, including without limitation by sending Messages containing Prohibited Message Content, or by sending Messages to End Users without their prior express written consent;
(b) to transmit any Message or any electronic material (including viruses or other similar destructive computer programming routines) which causes, or is likely to cause, detriment or harm or damage to the Network or any computer systems or telecommunications equipment or mobile handsets owned by Constant Contact, the Network Provider or any other person, or to facilitate the transmission or use of any code that would allow any third party to interfere with or access any Customer Data;
(c) to send spam, “junk mail” or unsolicited advertising or promotional Messages or material, or to send or knowingly receive or use any Message or material which is obscene, offensive, abusive, harassing, misleading, fraudulent, violent, unethical, indecent, defamatory, discriminatory, threatening, libelous, unlawful or menacing or promotes alcohol abuse or illegal drug use; or
(d) to send any Messages that contain medical and/or life-threatening emergency information if the such Message is the sole transmission channel to the End User with respect to such emergency.
3.5 Customer Data.
Customer is solely responsible for all Customer Data. Customer (i) grants to Constant Contact (including its Affiliates and subcontractors, including the Network Providers) a nonexclusive, worldwide right to process Customer Data to provide and support the Services and (ii) acknowledges that neither Constant Contact, the Network Providers, nor their respective Affiliates or suppliers exercise any control over Customer Data, and act as a mere or passive conduit in transmitting and handling Customer Data.
3.6 Personal Data.
Customer will collect and maintain all Personal Data necessary to utilize the Service, and all required consents associated with such Personal Data, in compliance with applicable Data Protection Laws.
3.7. Access and Connectivity
(a) Network connection.
Customer is solely responsible, at its own expense, for establishing and maintaining its equipment, software, facilities, and its connection to the Network.
(b) Access Numbers.
Customer acknowledges that the Access Numbers used to deliver Customer Services remain at all times the property of and are subject to the applicable terms and conditions imposed by the entity authorized to administer such Access Numbers. Access Numbers to be used to deliver Service for a Customer Service may at Constant Contact’s sole discretion be obtained by Constant Contact for Customer, if requested by Customer and subject to availability. The Customer may not use the Access Numbers except for in relation to the provisioning of the Service by Constant Contact or the Network Providers.
The Customer shall reasonably co-operate with Constant Contact in its supply and support of the Service, including any diagnostic or other maintenance or upgrade activities.
Customer will maintain reasonable security standards to protect the Network from unauthorized access, including, but not limited to, protecting Customer’s passwords from being disclosed to or accessed by third parties. Customer shall immediately inform Constant Contact if the Customer becomes aware of any possible or actual unauthorized use, misuse or access of the Service.
3.10 Disaster Recovery.
Customer is solely responsible for all disaster recovery, business continuity and back up arrangements in respect of its own equipment and all of its Customer Data.
3.11. Test Account.
At its discretion, Constant Contact may make an account available to the Customer for the purposes of testing of certain Services. The terms of the Agreement shall govern the Customer’s use and access to such test account and test Services. The Customer shall ensure that the test account and test Services are used only for the purpose of testing, and not for any productive, commercial or other purpose. The Customer shall comply with any relevant instructions or protocols Constant Contact notifies the Customer of in relation to the test account and test Services. The Customer agrees that Constant Contact can withdraw such test account and test Services at any time (with or without notice to the Customer).
- FEES AND TAXES
4.1 Fees and Payment.
Customer will be subject to fees in accordance with the applicable fee schedule (the “Fee Schedule”). Applicable fees will be billed monthly or Customer’s pre-paid account will be debited monthly for the Service. The Fee Schedule is subject to change at any time in Constant Contact’s sole discretion, and if Customer does not agree to any such changes, Customer should contact Constant Contact to cancel its account. Constant Contact will use good faith efforts to notify Customer prior to the effectiveness of any significant change to the Fee Schedule, but Customer is responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by Constant Contact and any applicable discounts.
Payment will be made in advance by a payment method accepted by Constant Contact. Checks (including e-checks or those sent by mail) will be accepted for prepayments of at least six months. Fees are only payable in the currencies made available to Customer when Customer purchases the Service. If the monthly payment option is selected or if Customer previously provided a credit card or other payment method for payment, Customer hereby authorizes Constant Contact to charge by that payment method for such amounts on a regular monthly basis beginning at the end of any applicable free trial period and continuing until such time as Customer terminates the Service or Customer’s Constant Contact account is terminated. If Constant Contact is for any reason unable to effect automatic payment, Constant Contact will attempt to notify Customer by email and Customer’s account may be disabled until payment is received.
Constant Contact collects and remits tax from customers located in certain state, local and foreign jurisdictions where software delivered as a service is taxable and where we have either physical, economic, affiliate or click-through nexus or permanent establishment. Constant Contact determines Customer’s local taxing jurisdiction based on the billing address listed in the “My Account” section of Customer’s Constant Contact account. Fees set forth in the Fee Schedule do not take into account any taxes.
Customer agrees to be responsible for and to pay any sales, personal property, use, VAT, excise, withholding, or any other taxes that may be imposed, based on the Agreement, use or possession of the Service.
Constant Contact may, without notice to the Customer, set-off any sums owed by the Customer under this Agreement and/or any other agreement with Constant Contact against any sums owed by Constant Contact to Customer regardless of the place of payment or currency of such obligations.
Customer may terminate the Service at any time by calling Constant Contact Customer Support. There are no refunds for any fees incurred prior to termination. Customer is solely responsible for terminating the Service. Constant Contact is not responsible for Customer’s failure to properly terminate the Service or for any credit card or other charges or fees Customer incurs as a result of its failure to properly terminate the Service.
Constant Contact may terminate the Service as set forth in the General Terms or at any time:
(a) if Customer violates any provision of these Texting Terms or the Agreement, as determined by Constant Contact in its sole discretion;
(b) upon any termination of a Network Provider, network operator, third-party subcontractor, supplier, or interconnected carrier relationship with Constant Contact or its Affiliates or the discontinuance of support for equipment or a component of service necessary for Constant Contact or the Network Provider to provide the Service;
(c) upon any legal, regulatory or governmental prohibition or limitation affecting the Service
(d) upon the termination or expiry of any license necessary to provide the Service; or
(e) if you file for bankruptcy, become insolvent, or make an assignment for the benefit of creditors, or otherwise materially breach Sections 10 or 12.4.
5.2 Effect of Termination.
Upon the effective date of termination of the Service:
(a) Customer’s right to use the Service and all Service Confidential Information will end;
(b) Constant Contact will cease providing the Service;
(c) Customer will return or destroy Service Confidential Information, as specified by Constant Contact; and
(d) Customer shall promptly pay to Constant Contact all outstanding amounts due under the Agreement.
Unless otherwise agreed by the parties, termination of the Service does not affect other agreements between the parties.
If Customer violates any provision of these Texting Terms or the Agreement, in Constant Contact’s sole discretion, Constant Contact reserves the right to terminate Customer’s access to or use of this website or any other products and services offered by Constant Contact and disable Customer’s Constant Contact account or access to this website or any other products and services offered by Constant Contact, in each case, with or without notice and without refund.
Upon termination or expiration of the Agreement, any rights or licenses granted to Customer hereunder shall immediately terminate except that all sections of the Agreement that by their nature should survive termination or expiration will survive termination or expiration, including Sections 1, 2.4, 2.5, 2.11, 3.2, 3.3, 3.7(b), 3.9, 3.10, 4, 5, 6.2, 7, 8, 9, 10, 11, and 12.
6.1 Compliance with Law.
Customer warrants its current and continuing compliance with all laws and regulations applicable to it in connection with the Customer Data and the Customer’s use of the Services.
Except as expressly provided in the Agreement, neither Constant Contact, the Network Provider nor their respective subcontractors make any representation or warranties. Constant Contact, the Network Providers and their respective subcontractors disclaim all representations, warranties, terms, conditions or statements, which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, all of which are excluded to the fullest extent permitted by law including the implied conditions, warranties or other terms as to merchantability, suitability, originality, or fitness for a particular use or purpose. In addition, except as expressly provided in this Agreement, neither Constant Contact, the Network Providers nor their respective subcontractors make any representations, warranties, terms, conditions or statements of non-infringement or results to be derived from the use of or integration with any products or services provided under the Agreement, or that the operation of any products or services will be secure, uninterrupted or error free. Customer agrees that it is not relying on delivery of future functionality, public comments, advertising or product roadmaps of Constant Contact in entering into the Agreement. Customer acknowledges that (i) the Service has not been specifically designed to meet its and/or any of its End Users’ or other customers’ individual requirements; and (ii) the Service will not be error-free, uninterrupted, or free from unauthorized access (including third party hackers or denial of service attacks). Except as expressly stated in this Agreement, the Service is provided on an ‘as is’ and ‘as available’ basis.
Customer agrees that, with respect to its supply of the Service, neither Constant Contact, any Network Provider nor any of their respective suppliers shall be liable whether in contract, tort, or strict liability to Customer or to any End User or any other customer of Customer for (i) any Messages deleted or not delivered regardless of the reason for deletion or non-delivery, including, without limitation, message processing errors, transmission errors, or messaging network and/or service failures; or (ii) the accuracy of information provided through the Service.
- THIRD PARTY CLAIMS
Customer will indemnify and, at Constant Contact’s election, defend Constant Contact, the Network Providers, and their respective Affiliates and subcontractors (the “Indemnified Parties”) from and against:
(a) any and all claims (including, but not limited to, any claims, demands, damages, costs, expenses, fines, penalties, or losses, or amounts paid in settlements or judgments, including without limitation, costs, reasonable attorneys’ fees, witnesses’ fees, investigation expenses, and all other direct expenses and costs incident thereto) or other liabilities brought against the Indemnified Parties by any third party (including, but not limited to, any other Constant Contact or Network Provider customer, Service Provider, End User, or governmental or regulatory authority) arising out of or relating to Customer Data, Customer Services, Messages or Customer’s use of the Service (including, but not limited to, any such claim which relates to infringement or misappropriation of any intellectual property rights of any third party or any breach or violation of laws or regulations); any breach or alleged breach of this Agreement including any of its responsibilities, representations, or warranties; and
(b) all damages finally awarded against the Indemnified Parties with respect to these claims.
- LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF CONSTANT CONTACT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CONSTANT CONTACT OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “CONSTANT CONTACT”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF CONSTANT CONTACT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF CONSTANT CONTACT TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY CONSTANT CONTACT TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
In addition to and not in limitation of the foregoing, and notwithstanding any provision to the contrary in the Agreement, Constant Contact shall not be liable for any failure to perform or any delay in performing an obligation under the Agreement if such failure or delay arises as a result of or in connection with the occurrence of an Excluded Event.
You agree that Constant Contact has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
- INTELLECTUAL PROPERTY RIGHTS
Constant Contact or the Network Providers and their respective subcontractors, Affiliates or licensors own all intellectual property rights in and related to the Service, Documentation, design contributions, related knowledge or processes, and any derivative works of them. All rights not expressly granted to Customer are reserved to the foregoing parties. Customer retains all rights in and related to the Customer Data as between Customer and Constant Contact.
9.2 Non-Assertion of Rights.
Customer covenants, on behalf of itself and its successors and assigns, not to assert against Constant Contact, the Network Providers, or their respective Affiliates or licensors, any rights, or any claims of any rights, in any Service or Documentation.
10.1 Service Confidential Information.
Customer will protect all Service Confidential Information as strictly confidential to the same extent it protects its own confidential information, and not less than a reasonable standard of care. Except as required by regulatory process, legal proceedings and/or applicable law, Customer will not disclose any Service Confidential Information to any person other than its personnel or representatives or those of its Affiliates whose access is necessary to enable it to exercise its rights or perform its obligations under the Agreement and who are under obligations of confidentiality substantially similar to those in this Section 10. Customer will not disclose the pricing of the Services to any third party, except as required by regulatory process, legal proceedings and/or applicable law. In the event of regulatory process or legal proceedings relating to the Service Confidential Information, the receiving party will cooperate with the disclosing party and comply with applicable law (all at disclosing party’s expense) with respect to handling of the Service Confidential Information.
If Customer concludes in good faith on advice of counsel that disclosure is required by regulatory process, legal proceedings and/or applicable law, Customer shall provide, if legally permitted, thirty (30) days advance written notice thereof (or notice as soon as reasonably possible upon reaching such conclusion if 30 days is not possible) to Constant Contact. Such notice shall include the reason for the conclusion and the compulsory basis therefor, so that Constant Contact may intervene and assert any objections. Customer shall also in any event seek confidentiality protection for any such disclosures and shall only disclose the Service Confidential Information that legal counsel advises is required.
Service Confidential Information disclosed prior to execution of the Agreement will be subject to this Section 10.
The restrictions on use or disclosure of Service Confidential Information will not apply to any Service Confidential Information that:
(a) is independently developed by the receiving party without reference to the Service Confidential Information;
(b) is generally available to the public without breach of the Agreement by Customer;
(c) at the time of disclosure, was known to Customer free of confidentiality restrictions; or
(d) Constant Contact agrees in writing is free of confidentiality restrictions.
- DATA PROTECTION
Customer hereby grants to Constant Contact a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display Customer’s contacts and content only as required by Constant Contact to offer and operate the Service and related services and, where applicable as permitted by Constant Contact’s Data Processing Addendum and California-Specific Terms and as described in our Privacy Notice.
If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
12.2 No Waiver.
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
12.3 Regulatory Matters.
Service Confidential Information may be subject to export control laws of various countries. Customer will not submit Service Confidential Information to any government agency for licensing consideration or other regulatory approval, and will not export Service Confidential Information to countries, persons or entities if prohibited by export laws.
Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. Constant Contact may assign all rights to any other individual or entity in our sole discretion.
12.5 Entire Agreement.
Constant Contact and Customer agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
“Access Number” means a set of digits used to enable Customer to send and/or receive Messages or calls as part of a Customer Service. Access Numbers shall include ‘short-codes’ and ‘long-codes’ as applicable.
“Affiliate” means any legal entity in which Customer or Constant Contact, directly or indirectly, holds more than fifty percent (50%) of the entity’s shares or voting rights. Any legal entity will be considered an Affiliate as long as that interest is maintained.
“Customer Data” means any content, messages, data and/or information that Customer delivers or uploads to the Network or to a Service or provides via a Service. Customer Data and its derivatives will not include Service Confidential Information nor any usage data that arises or Constant Contact generates in the supply of the Service.
“Customer Service” means a marketing, advertising, promotional or informational program or initiative, or other project, conducted by Customer utilizing the Service.
“Data Controller” has the meaning given to it in the GDPR.
“Data Processor” has the meaning given to it in the GDPR.
“Data Protection Legislation” means the relevant laws and other regulations applicable to the collection, use, storage, disclosure or otherwise processing personal data (such as but not limited to and as far as applicable the General Data Protection Regulation or the “GDPR”) and as is further defined within the Data Protection Agreement.
“Documentation” means the then-current technical and functional documentation pertaining to the Service, as well as any service descriptions and roles and responsibilities descriptions, if applicable, for the Service, in each case which is made available to Customer with the Service.
“End User” means a person or entity that is a user and/or recipient of a Customer Service.
“Excluded Event(s)” means any of the following: (i) a fault in, or any other problem associated with, systems not operated or managed by Constant Contact; (iii) any breach of the Agreement by the Customer or a third-party within the Customer’s direct control or any third party supplier to the Customer;(iv) any act by the Customer which interferes with or impedes the supply and support of the Service; (v) any suspension of the Service in accordance with the terms of the Agreement; or (vi) any other circumstances caused by events for which Constant Contact is not liable in accordance with the terms of the Agreement.
“General Data Protection Regulation” or “GDPR” the General Data Protection Regulation (EU) 2016/679 of the European Parliament and the Council, as amended, supplemented and/or varied from time to time.
“Message” means a digital message containing Customer Data in a form for delivery via Short Message Service (SMS), Multi-Media Messaging Service (MMS) technology, Internet Protocol (IP) or other technology, protocols or standards used to transmit mobile digital content or information.
“Network” means the digital networks (wireless or otherwise), server(s), hardware, software and/or any other equipment that Constant Contact uses, in its sole discretion, in connection with the supply of the Service and whether owned by Constant Contact or any outsourced service provider, vendor or subcontractor, and including any extranet access provided by Constant Contact or its vendors or subcontractors in connection with the supply of the Service.
“Network Provider” means any third party vendor, supplier, service providers or subcontractors that provide any part of the Network.
“Personal Data” information about an individual that is defined as “personal data” or “personal information” as defined within the Data Protection Agreement and, if necessary, further defined within in the applicable Data Protection Legislation, such as but not limited to the GDPR
“Policies” means the operational guidelines and policies applied by Constant Contact, its vendors or the Network Providers in order to provide and support the Service, as made available to Customer.
“Prohibited Message Content” means the following:
- Illegal substances (which means anything federal illegal, illegal on a state level, or illegal in the jurisdiction where the message recipient is located, including CBD, vaping, marijuana/cannabis, prescription medication that cannot legally be sold over-the-counter, and THC)
- Sex, hate, alcohol, firearms, and tobacco (SHAFT)
- High-risk financial services (including payday loans, short-term high-interest loans, student loans, third-party auto or mortgage loans, debt collection and forgiveness)
- Debt collection and forgiveness (including credit repair programs, debt collection from a third party, debt consolidation, debt reduction)
- Gambling (including casino apps and gambling websites)
- Multi-level marketing (Multi-level marketing, network marketing and pyramid schemes; risk investment programs; work-from-home schemes; “Get rich quick,” “build your wealth,” and “financial independence” offerings)
“Service Confidential Information” means (i) the Documentation and any analyses under Section 2.12; (ii) information regarding the research and development, product offerings, pricing and availability of Constant Contact or its vendors, suppliers or subcontractors; and (iii) any information which Constant Contact protects against unrestricted disclosure to others that (A) Constant Contact or its representatives designate as confidential at the time of disclosure, or (B) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure.
“Service Provider” means any entity, including, but not limited to, mobile network operators and mobile messaging aggregators, that is used in relation to the supply of the Service.
“Service Provider Conditions” means the rates, terms and conditions and “codes of conduct” or message content rule and restrictions imposed by the applicable Service Providers on the provision of the Service and conduct of Customer Services as a condition of permitting the Network Provider and Constant Contact to provide the Service and Customer to conduct Customer Services, whether such Service Provider Conditions are incorporated in the terms of this Agreement or provided by Constant Contact to Customer in writing or by email from time to time.
Constant Contact® Anti-Spam Policy
At Constant Contact, we take Spam seriously.
Many people today are unaware that there is a cost associated with sending unwanted or unsolicited email. For small businesses and non-profit organizations the principal costs are poor reputation and lost revenue. For customers and prospects of small businesses and non-profit organizations, receiving unwanted or unsolicited email is not only frustrating and time consuming; it can also provoke negative reactions towards those who send it. Let’s face it, who wants to patronize a business or make a donation to an organization that doesn’t consider your preferences or respects your time.
Likewise, there is a cost to processing and filtering unwanted and unsolicited email. This cost is placed squarely on the shoulders of the internet service providers (ISPs) and mail administrators that filter ‘spam’ from their users. With over 85% of all email traffic today considered “Spam” sent from individuals with malicious intent, there’s no wonder why ISPs condemn the sending of unsolicited email and employ complex filtering to protect their customers from it.
With email marketing it’s all about the recipients. Remember, it’s the ISPs and recipients that control the email-marketing channel. Unlike many other marketing channels, recipients can easily react to email they don’t want. It’s as easy as hitting the “Spam” or “Junk” button, or forwarding the email to a third party blocklist. The result? If enough recipients report the mail they receive from a specific sender as unwanted or unsolicited, both the sender and Constant Contact may be blocked from delivering mail in the future.
That’s why Constant Contact has a no tolerance spam policy.
At Constant Contact we want all of our customers sending emails their contacts really want to receive.
What is Spam?
Spam is often in the eye of the beholder. If you ask ten different people for a definition of Spam, you’ll probably get ten different answers. So here’s our best explanation:
- Spam, as applied to email, means “Unsolicited Bulk Email”.
- Unsolicited means that the recipient has not granted the sender affirmative consent (permission) to email them.
- Bulk means that the message is sent as part of a larger collection of messages, all having materially similar content.
Okay, so what does “Affirmative Consent” mean?
The term “affirmative consent” means the recipient has expressly consented to receive the message from you, either in response to a clear and conspicuous request, or at the recipient’s own initiative. The consent must be specific to you and a general consent to be contacted by third parties is not sufficient. Therefore a list of email addresses that has been purchased from a third party or scraped from the internet would not satisfy the affirmative consent requirement.
Spam is an issue of consent, not content!
Oftentimes, senders that receive elevated rates of Spam complaints say “But I’m not sending weight loss product ads or get-rich-quick scams, so I’m not spamming.” This is not necessarily true. Spam has nothing to do with the content within emails (although there are some regulations around what can’t be sent, as well, Constant Contact has a Prohibited Content Policy). It’s all about whether one has obtained prior affirmative consent to send to their contacts.
So why is Constant Contact so tough when it comes to Spam?
It’s simple really. Our customers expect us to deliver their emails to their contact’s inboxes. Because of our commitment to responsible mailing, we go to great lengths to monitor list uploads, complaints, and other performance metrics to ensure there are no problems. Spam complaints, sending to old or non-existent addresses, and low engagement rates all have a negative impact towards the sender AND Constant Contact, which in turn may cause our mail servers to be blocked. If Constant Contact gets blocked, every customer suffers.
What happens if a customer receives a lot of Spam complaints or runs into compliance problems?
Constant Contact’s Compliance team is here to work with customers, because ultimately their success is our success. If we identify a potentially problematic contact list or a customer not performing up to our standards, we’ll first ask a lot of questions. We’ll try and understand their business as well as their marketing goals. We’ll talk about their list, their collection practices, and their messaging to try to uncover the root cause of the problem. We may also ask that they try different action plans to remediate the problem. Again, we want to incubate success. But yes, there are times when we determine that a list is simply not consent-based, or is too old or problematic to work with, and we’ll require that it be removed from the account. Also, in certain instances, we’ll ask that a customer find another service provider because our goals are simply not compatible.
How do I become a responsible mailer?
Becoming a great email marketer takes some time and commitment. Getting emails delivered and avoiding being labeled a “Spammer” is vital to the success of small businesses and non-profit organizations. And while there are countless tips, tricks, and technical approaches that can be used, a simple focus on these four strategies will help a bunch:
- Gather contacts using affirmative consent.
As we’ve already learned, getting affirmative consent from contacts is the number one driver of success. If you’re an email marketer, make sure your contacts are aware and amenable to receiving email from you. Don’t play games with implied consent or hiding your terms in the fine print.
- Set proper expectations around content and frequency.
Let your contacts know exactly the type of content you’ll be sending and don’t stray far from the course. You can do this by showing samples or providing copies of your emails. That way, they can decide if they’re interested in the content or want to hear from you. Remember, it’s about them – not you.
In the same breath, tell them how often you plan to mail to them, and stay true to your word. Over-mailing or not mailing frequently enough can cause problems. Letting your contacts know how often you plan on hitting their inbox will set expectations, and again, give them choice.
- Make your communications relevant and engaging.
Email “engagement” is a common buzzword in the marketing industry today. It’s also a metric used by ISPs to help determine blocking or the placement of your email. If your contacts aren’t interested in what you’re sending, they’ll be less likely to open future emails from you. In turn, low engagement may lead to your emails getting de-prioritized, delivered to the junk folder, or blocked entirely. Make a conscious effort to send email that’s relevant to your contacts and promotes interaction. If you have the means, utilize technology to really understand what your contacts are interested in and target your messaging to those interests.
- Become a trusted and responsible mailer.
Success is often measured by your last email. Stay true to your collection methods and follow the expectations you set. Don’t be tempted to deviate or get tricky. Short-term gains made by emailing to non-permission based lists, or sending content that is different from what your contacts expect, will always come back to bite you. After all, it’s your brand we’re talking about here. Why risk ruining your business’s reputation by deviating from responsible practices?
Are there any laws against sending Spam?
Yes. In January of 2004 a federal anti-spam law went into effect in the United States. It’s known as the CAN-SPAM Act. This Act regulates, to some extent, commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations. While this new law did not stop spam, it does make it illegal and ultimately less attractive to spammers. At Constant Contact, we applaud the CAN-SPAM Act, but view it as the lowest barrier to entry rather than the pinnacle to which marketers should strive. Because Spam is about consent not content, arguments that mail is CAN-SPAM compliant are often irrelevant.
There are also many other laws and regulations around the world surrounding electronic marketing. If you live or work in Canada, or mail to folks who do, you’ll want to be sure to collect and catalog express consent as outlined in the new Canadian Anti-Spam Laws (CASL).
While we can’t give legal advice, we encourage all senders to become familiar with these laws, especially if they live in or mail to recipients outside the US.
How does Constant Contact help protect against sending unwanted or unsolicited email?
Constant Contact’s Compliance team uses the full spectrum of people, process, and technology to ensure our customer’s mail gets delivered. Our highly trained staff uses a variety of tools and criteria to review and evaluate each account throughout their lifecycle.
Legal – We require that each customer understands and agrees to our permission-based Terms of Service. In addition, when customers upload a contact list, they must agree that it is consent-based.
Education – We continuously keep customers updated on the latest best practices, tips, and email etiquette via our blogs, seminars and training, and Constant Contact’s Marketing Resource Center.
Collaboration – We’re registered with major ISPs and anti-spam authorities to receive automated feedback loop (FBL) data when any of our customer’s contacts report abuse. We use this data, when warranted, to take corrective action.
We also utilize 3rd party technology to help identify potentially problematic contact lists and campaign content.
Verification – We offer you the option to send new contacts an email confirming their interest in receiving emails from you. Additionally, if your contact changes their interests or unsubscribes, we offer you the option to send an email confirmation.
Unsubscribe – Except for one-to-one transactional communications, every email generated from Constant Contact contains an unsubscribe link which allows contacts to opt-out of future emails and automatically updates contact lists to avoid the chance of sending unwanted emails in the future.
Identification – Your email header information is pre-set for you by Constant Contact. Your email’s “From Address” is verified and accurately identifies you as the sender.
Contact Information – All of your emails are pre-filled with your contact information, including your physical address.
If you feel a Constant Contact customer is sending unsolicited email, you can report it to us by sending it to email@example.com or firstname.lastname@example.org, as applicable. Each email is reviewed and cataloged by a member of the Compliance Team. In addition, we will investigate each complaint and take appropriate action against the sender.