LISTMARKETER’s Acceptable Use Policy (“AUP”) is intended to help enhance the use of the Internet by preventing unacceptable use. Any violation of this AUP may result in the suspension or termination of either your access to the SOFTWARE and/or ISP account or other actions as detailed in the Agreement between the parties.

1. Violations

The following constitute violations of the LISTMARKETER AUP:

Unsolicited Commercial Email (UCE)

UCE is defined as any electronic communication, including but not limited to email, sent for purposes of distributing commercial information of any kind, soliciting the purchase or sale of products or services or soliciting any transfer of funds to a recipient who has not agreed to receive such communication.

Unsolicited Bulk Email (UBE)

UBE is defined as any electronic communication, including but not limited to email, sent to multiple recipients who have not agreed to receive such communication.

Unsolicited Electronic Mail.

Licensee shall only send such material to recipients who specifically request it. Use of the SOFTWARE to send unsolicited email or other abuse of the SOFTWARE is strictly prohibited. Licensee is subject to immediate termination if LISTMARKETER determines that Licensee has used the SOFTWARE to send unsolicited email, in LISTMARKETER’s sole discretion and per the terms of the SOFTWARE License Agreement.

No Tolerance UCE/UBE Policy.

Use of the any LISTMARKETER SOFTWARE and/or ISP to transmit any unsolicited commercial or unsolicited bulk-email is expressly prohibited, as is hosting web sites or services on a server, which are advertised in any UCE/UBE. LISTMARKETER also prohibits the sending of any fraudulent, malicious, harassing, false or misleading electronic communications.

Licensee is expressly prohibited from sending any UCE/UBE from our SOFTWARE or any ISP(s) or any email from another network that in any way references a document, image, or website that resides on any LISTMARKETER SOFTWARE or ISP(s). Violations of this type may result in the termination of the offending LISTMARKETER SOFTWARE license per the stems of the SOFTWARE License Agreement. Licensee is ultimately responsible for any violations of the AUP by any SOFTWARE login(s) made by or for Licensee, and any violation of the AUP by a client of Licensee shall be deemed a violation of the AUP by Licensee. You have permission to copy and govern your clients following this same AUP, after approval from your legal counsel.

Illegal Use.

Licensee may not, intentionally or unintentionally, use the SOFTWARE or permit the SOFTWARE to be used in any manner which violates any local, state, national, or international law, promulgated there under, including, but not limited to, statutes regulating or prohibiting unsolicited email, statutes requiring accuracy in routing, subject, or sender information, statutes requiring working opt-out mechanisms, and any laws protecting minors. Without limiting the generality of the foregoing, Licensee agrees to fully comply with the CAN-SPAM Act of 2003 and specifically acknowledges having sole responsibility for maintaining knowledge of and adhering to ALL applicable state, federal, and foreign laws. Licensee may not use the SOFTWARE or permit the SOFTWARE to be used to transmit messages that threaten, incite, or encourage bodily harm, violence, vandalism, or destruction or to transmit any email messages that harass any person or entity, or for any activity which impairs the ability of others to use the internet, computer systems, or networks. This includes, but is not limited to, the intentional or unintentional overload of third-party systems or transmission of malicious code. Licensee agrees not to use the SOFTWARE in any situation where significant damage or injury to persons, property or business could occur.

Consumer Complaints and RBL Listings.

Customers whose actions directly or indirectly result in any IP space being listed in any of the various abuse databases may be subject to having the offending domain(s), server(s), or user(s) immediately removed from our SOFTWARE. In addition, if LISTMARKETER in its sole discretion determines that a customer is in violation of our AUP, LISTMARKETER may, at its sole discretion, restrict, suspend or terminate a customer’s account. LISTMARKETER will, in most cases, attempt to contact a customer prior to suspension or termination of a server(s), but cannot guarantee prior notification. Any server suspended or terminated for excessive complaints resulting in AUP violations will be reconnected only after the customer agrees to cease all activities that violate the LISTMARKETER AUP and paying a $250 per affected Server SOFTWARE re-configuration charge. Any SOFTWARE License suspended a second time for any AUP violations or excessive complaints WILL be immediately and permanently removed from all LISTMARKETER provided ISP(s), in LISTMARKETER’s sole and absolute discretion.

Forbidden Practices.

No uploading or distributing of warez, scripts, pornography or sexually explicit material of any kind is allowed. Using the SOFTWARE to harm, or attempt to harm, minors in any way is prohibited.

Unauthorized access.

Using the SOFTWARE to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of another entity’s computer software or hardware, electronic communications system, or communications system.

Reselling the services.

Reselling the Services without prior authorization on a LISTMARKETER ISP is prohibited. A separate LISTMARKETER Reseller Agreement must be executed by Licensee.

Proprietary Rights Infringement.

Licensee may not use the SOFTWARE or permit the SOFTWARE to be used in any manner which infringes upon the intellectual property rights of any third party, including copyright, trademark, patent, trade secret, or other proprietary rights. Prohibited acts include, but are not limited to, the unauthorized dissemination of copyrighted digitized music, video, images, photographs, magazines, books, files, and software of any kind, the unauthorized use of trade or service marks, and the unauthorized disclosure of trade secrets.

Housing or Collection of Addresses.

The SOFTWARE may not be used to collect, or to facilitate the collection of, email addresses or data without the permission of the corresponding email address recipients. Additionally, addresses collected without such permission may not be uploaded to or housed within the SOFTWARE. All uploaded email records must contain the IP, timestamp, and source of the email.

Forging Identity.

The SOFTWARE may not be used to represent any other people or organizations other then Licensee. Any incorrect information entered in the SOFTWARE by Licensee is strictly prohibited and grounds for immediate termination.

2. Reporting Violations of the AUP:

Violation of this AUP must be reported to abuse@listmarketer.com

The following information must be provided:

-The IP address used to commit the alleged violation
-The date and time stamp
-Subject or other evidence of the alleged violation
-Email with full header information or any other part of the message with valid information

LISTMARKETER may take any one or more of the following actions in response to any AUP complaints, in any order deemed advisable by LISTMARKETER in its sole and absolute discretion:

  1. Issue Warnings: Written or Verbal
  2. Request Source Info Verification
  3. Suspend or terminate the Licensee’s SOFTWARE
  4. Suspend or Terminate the Licensee’s ISP service

3. Updates to the Acceptable Use Policy

By continuing to use the SOFTWARE, Licensee automatically agrees to any updated AUP posted on the SOFTWARE. A notice of any updated AUP will be sent and posted at least 5 days before any new AUP updates come into effect as automatic Exhibits to this Agreement, and incorporated herein by reference. Licensee shall execute and return any requested acknowledgements of AUP updates or Exhibits via Fax signature upon request.

Guidelines for Permission-Based Email

While LISTMARKETER prohibits the use of its systems, SOFTWARE, or ISP services to send unsolicited email (UCE/UBE) as described above, Licensees may send permission-based email marketing, subject to the guidelines provided herein.

Permission-based marketing is defined as electronic marketing that an end user agrees to receive. This is often referred to as ‘opt-in’ email marketing. All recipient information for such marketing conducted by LISTMARKETER Licensees must be documented and cataloged by the Licensee. This information is to include date, time, originating IP and the location from which the email address or other recipient information was obtained.

Each Licensee must at a minimum comply with the following guidelines, and any additional guidelines established by LISTMARKETER from time to time in its sole discretion, to engage in permission-based email marketing without violating this AUP.

  1. All permission based email must be CAN SPAM Compliant, including having a working unsubscribe link. The Licensee must honor all requests to unsubscribe no later then 72 hours after request.
  2. All permission based email originating from a LISTMARKETER Licensee must clearly list the email address to which the email was originally sent in the ‘TO:’ line of the email or encoded value in the body of the message.
  3. All Licensees sending permission based email must have and comply with a reasonable privacy policy that complies with industry standards and all applicable laws.
  4. The minimum required information must include the timestamp, originating IP and website from which the email address or other recipient information was obtained. All uploads will require these fields as of August 1, 2006. Full names and postal addresses are not currently required, but recommended. All requests for invalid or previously uploaded email addresses must be responded to within 48 hours or service may be suspended in our sole discretion.
  5. All Licensees of LISTMARKETER are required to have up-to-date and valid contact information on file with their registrar for any domain used with our SOFTWARE.
  6. LISTMARKETER reserves the right to test portions of any Licensee’s email list in response to complaints and request opt-in information from a random sample of that list at any time.
  7. LISTMARKETER reserves the right to determine in its sole discretion the validity of any Licensee’s email list. Any list LISTMARKETER determines in its sole discretion to be in violation of this AUP must be removed immediately or the Licensee will be subject to immediate suspension or termination. Repeated violations of this AUP or excessive complaints will result in suspension of SOFTWARE or ISP services, in LISTMARKETERS or the ISP’s sole and absolute discretion.
  8. LISTMARKETER reserves the right to test and otherwise monitor Licensee’s compliance with the above guidelines and requirements at any time during the Licensee’s term of service with LISTMARKETER.
  9. LISTMARKETER monitors all abuse accounts configured in the SOFTWARE. If LISTMARKETER determines in its sole discretion that the Licensee is not in strict compliance with the LISTMARKETER AUP and Guidelines for Permission-based email marketing, LISTMARKETER may immediately suspend or terminate the Licensee’s ability to use the SOFTWARE with or without notice